Exhibit (h)(i)
DISTRIBUTION AGREEMENT
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY
INSTITUTIONAL FUND, LLC
This Distribution Agreement (the "Agreement") dated as of March 28,
2005, shall be entered into by and among the CSFB Alternative Capital Long/Short
Equity Institutional Fund, LLC (the "Fund"), a Delaware limited liability
company operating (or intending to operate) as a closed-end, non-diversified
management investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act"), and Credit Suisse First Boston LLC (the
"Distributor"), a Delaware limited liability company operating as a
broker-dealer, registered under the Securities and Exchange Act of 1934 (the
"1934 Act") and Investment Advisers Act of 1940 (the "Advisers Act"), and with
the National Association of Securities Dealers, Inc. ("NASD").
WHEREAS
(A) The Fund desires to issue units of limited liability company
interests ("Units"), pursuant to the Fund's registration statement on
Form N-2 dated March 15, 2005, as amended or supplemented from time to
time including the prospectus and the statement of additional
information ("SAI") and any supplements or amendments thereto
("Registration Statement").
(B) The Fund desires to appoint the Distributor as distributor with
respect to the Units, and the Distributor is willing to accept such
appointment.
NOW IT IS AGREED AS FOLLOWS:
1. DISTRIBUTION OF UNITS
(a) Subject to the terms and conditions set forth herein, the Fund
appoints the Distributor as its non-exclusive distributor in connection with the
offer and sale of Units, and the Distributor hereby accepts such appointment and
agrees to use its reasonable best efforts to offer and sell Units to investors
whom the Distributor reasonably believes meet the eligibility requirements set
forth in the Registration Statement and to use all reasonable efforts to assist
the Fund in closing the sale of Units by each investor who submits a
Subscription Agreement (as defined below). Unless otherwise agreed by the
parties, the Fund and/or CSFB Alternative Capital, Inc., investment adviser and
services agent to the Fund (the "Investment Adviser" or the "Services Agent"),
shall be responsible for reviewing each Subscription Agreement to confirm that
it has been completed in accordance with the instructions thereto and that each
has been completed by or on behalf of an "Eligible Investor" as described in the
Registration Statement. The Fund and/or the Services Agent, in its or their sole
discretion, may return to the Distributor any Subscription Agreement that is not
completed to its or their satisfaction and shall be under no obligation to
accept any Subscription Agreement. The Distributor is not obligated to sell any
specific number of Units or to purchase any Units for its own account. The Fund
shall be entitled to appoint additional distributors.
(b) In offering Units, the Distributor shall act solely as the agent
of the Fund not as principal.
(c) Prior to forwarding a Subscription Agreement to the Fund and/or the
Services Agent (or their or its designee) for acceptance, the Distributor shall
use its reasonable efforts to determine that the subscriber for
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Units has a legitimate source of funds, that there is no reason to suspect such
subscriber of money laundering activities, and that in forwarding the
Subscription Agreement the Distributor is compliant with the program described
in Section 5(g).
(d) For purposes of the offering of Units, the Fund has furnished to
the Distributor copies of the Registration Statement and subscription
documentation (the "Subscription Agreement"). Additional copies of such
documents will be furnished to the Distributor at no cost to the Distributor in
such numbers as may be reasonably requested. The Distributor is authorized to
furnish to prospective subscribers for Units only such information concerning
the Fund and the offering as may be contained in the Registration Statement, the
Fund's formation documents, or any other documents, including sales material, if
filed with the Registration Statement or approved in writing by the Fund
(collectively with the Registration Statement, formation documents and
Subscription Agreement, the Fund's "Offering Documents"). The Distributor shall
assist the Services Agent (or its designee) in maintaining a record of each
prospective investor to whom the Distributor furnishes Offering Documents,
copies of which the Services Agent shall make available to the Distributor on
request.
(e) The Fund may suspend or terminate the offering of any Units at any
time as to specific classes of investors, as to specific jurisdictions or
otherwise. Upon notice to the Distributor of the terms of such suspension or
termination, the Distributor shall suspend solicitation of subscriptions for
Units in accordance with such terms until the Fund notifies the Distributor that
such solicitation may be resumed.
(f) The Fund will furnish the Distributor with such documents as it may
reasonably require, from time to time, for the purpose of enabling it to offer
and sell Units as contemplated by this Agreement, or in order to evidence the
accuracy of any of the representations and warranties, or the fulfillment of any
of the conditions contained in this Agreement. All proceedings taken by the Fund
in connection with the issuance and sale of Units as contemplated in this
Agreement will be satisfactory in form and substance to the Distributor.
(g) The Distributor accepts such appointment as distributor and agrees
to render such services and to assume the obligations herein set forth for the
compensation herein provided. The Distributor shall for all purposes herein
provided be deemed to be an independent contractor and, unless expressly
provided herein or otherwise authorized, shall have no authority to act for or
represent the Fund in any way. The Distributor, by separate agreement with the
Fund, may also serve the Fund in other capacities. The services of the
Distributor to the Fund under this Agreement are not to be deemed exclusive, and
the Distributor shall be free to render similar or other services to others so
long as its services hereunder are not impaired thereby. The Distributor
represents that it is a registered securities dealer and a member in good
standing of the NASD.
(h) In carrying out its duties and responsibilities hereunder, the
Distributor may, pursuant to separate written contracts, appoint various
financial services firms and/or advisers ("Firms"), to provide advertising,
promotion and other distribution services contemplated hereunder directly to or
for the benefit of existing and potential shareholders who may be clients of
such Firms. Such Firms shall at all times be deemed to be independent
contractors retained by the Distributor and not the Fund.
(i) The Distributor shall use its best efforts with reasonable
promptness to sell such part of the authorized Units of the Fund remaining
unissued as from time to time shall be effectively registered under the
Securities Act of 1933, as amended ("Securities Act"), at prices determined as
hereinafter provided and on terms hereinafter set forth, all subject to
applicable federal and state laws and regulations and to the Fund's currently
effective Registration Statement; provided, however, that the Distributor may,
in its discretion, refuse to accept orders for Units from any particular
applicant. Without limiting the foregoing, the Distributor agrees to: (i) sell
Units only to an investor who is an "Eligible Investor" as that term is defined
in the Registration Statement; (ii) obtain and comply with any investor
certification requirements set forth in the Fund's Registration Statement; and
(iii) impose the requirements set forth in (i) and (ii) of this paragraph as a
condition of the sales activity of any Firm or other person with whom the
Distributor enters into a selling group arrangement with respect to the Units.
(j) The Distributor shall sell Units of the Fund to or through
qualified Firms in such a manner, not inconsistent with the provisions hereof
and the Fund's Registration Statement, as the Distributor may determine from
time to time, provided that no Firm or other person shall be appointed or
authorized to act as agent of the Fund without prior consent of the Fund. The
Distributor is authorized to enter into member servicing arrangements with such
Firms as described in the Fund's Registration Statement, as applicable, and the
Fund, as described in its Registration Statement, as applicable, will reimburse
the Distributor for any payments made to such Firms that have agreed to provide
ongoing member services and account maintenance services to members in the Fund
that are their customers. In addition to sales made by it as agent of the Fund,
the Distributor may, in its discretion, also sell Units of the Fund as principal
to persons with whom it does not have selling group agreements.
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(k) Units of the Fund offered for sale or sold by the Distributor shall
be so offered or sold at a price per share determined in accordance with the
Registration Statement. The price the Fund shall receive for Units purchased
from it shall be the net asset value used in determining the public offering
price applicable to the sale of such Units, except with respect to Units sold
during the initial offering period, as defined in the Registration Statement,
which shall be offered and sold at the price set forth therein.
(l) The Distributor will require each Firm to conform to the provisions
hereof and the Registration Statement with respect to the public offering price
or net asset value, as applicable, of the Fund's Units, and neither the
Distributor nor any such Firms shall withhold the placing of purchase orders so
as to make a profit thereby.
(m) The Fund will use its best efforts to keep effectively registered
under the 1940 Act, for sale as herein contemplated, such Units as the
Distributor shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered. Notwithstanding any other provision
hereof, the Fund may terminate, suspend, or withdraw the offering of Units
whenever, in its sole discretion, actions it deems to be desirable.
(n) The Fund will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of its Units for sale (including the qualification of the Fund as
a dealer where necessary or advisable) in such states as the Distributor may
reasonably request (it being understood that the Fund shall not be required
without its consent to comply with any requirement which in its opinion is
unduly burdensome). The Fund will furnish to the Distributor from time to time
such information with respect to the Fund and its Units as the Distributor may
reasonably request for use in connection with the sale of Units of the Fund.
(o) The Distributor shall issue and deliver or shall arrange for
various Firms to issue and deliver on behalf of the Fund such confirmations of
sales made by it pursuant to this Agreement as may be required under any
applicable law. At or prior to the time of issuance of Units, the Distributor
will pay or cause to be paid to the Fund the amount due the Fund for the sale of
such Units. Units shall be registered on the transfer books of the Fund in such
names and denominations as the Distributor may specify.
(p) The Distributor shall order Units of the Fund from the Fund only to
the extent that it shall have received purchase orders therefore. The
Distributor will not make, or authorize Firms or others to make (a) any short
sales of Units of the Fund; or (b) any sales of such Units to any member of the
Fund's board of managers ("Board") or officer of the Fund or to any officer or
Board member of the Distributor or of any corporation or association furnishing
investment advisory, managerial or supervisory services to the Fund, or to any
corporation or association, unless such sales are made in accordance with the
Registration Statement relating to the sale of such Units. The Distributor, on
behalf of and for the account of the Fund, may repurchase the Units of the Fund
at such prices and upon such terms and conditions as shall be specified in the
Fund's Registration Statement. In selling or repurchasing Units of the Fund for
the account of the Fund, the Distributor will in all respects conform to the
requirements of all state and federal laws and the Conduct Rules of the National
Association of Securities Dealers, Inc., relating to such sale or repurchase, as
the case may be. The Distributor will observe and be bound by all the provisions
of the Fund's organizational documents (and of any fundamental policies adopted
by the Fund pursuant to the 1940 Act), which in any way require, limit,
restrict, prohibit or otherwise regulate any action on the part of the
Distributor hereunder.
2. HANDLING OF ORDERS
(a) For purposes of this Agreement, purchases of Units whose
subscriptions were solicited by the Distributor and accepted by the Fund are
referred to herein as the "Distributor's Subscribers."
(b) All properly presented and accepted subscriptions of the purchase
of Units shall be executed at the offering price per Units as described in the
Registration Statement.
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(c) The procedures relating to soliciting and the handling
subscriptions for Units will be subject to the terms of the Registration
Statement and the Operating Procedures set forth in Appendix A hereto.
(d) Payments for Units shall be made as specified in the Registration
Statement and Subscription Agreement.
(e) The Distributor will not at any time be responsible for performing
recordkeeping or accounting services with respect to the Fund, except as
described in Section 1(d) hereof. The Fund shall promptly inform the Distributor
of the Fund's net assets and net asset value per Unit (and/or in certain
instances estimated net asset values) as soon as reasonably practicable
following their calculation. The Distributor is authorized to communicate such
calculations to each of the Distributor's Subscribers. In the event that
estimated net asset values are provided in lieu of net asset values, the
Distributor shall make appropriate disclosures to the Distributor's Subscribers.
3. EXPENSES
(a) Except as may otherwise be agreed to by the Fund, the Distributor
shall be responsible for the payment of all costs and expenses incurred by it in
connection with the performance of its obligations under this Agreement (other
than those costs associated with preparing and updating the Registration
Statement and with reviewing the qualifications of prospective investors, which
costs will be borne by the Fund).
4. ADDITIONAL REPRESENTATION, WARRANTIES AND COVENANTS OF THE FUND
The Fund hereby represent, warrant, and covenant to the Distributor
that:
(a) The Fund has been duly formed under the laws of the State of
Delaware and has the power and authority to affect the offering of its Units and
conduct its business as described in the Registration Statement. All necessary
filings, consents and other actions necessary to qualify the offering of units
in each applicable U.S. state and to conduct the business of the Fund as
described in the Registration Statement have been, or will timely be, made or
taken.
(b) The Fund intends to engage in business as closed-end,
non-diversified management investment companies and are registered as such under
the 1940 Act.
(c) The sale of Units and the execution, delivery and performance of
this Agreement and the Fund's conduct of business as described in the
Registration Statement will not result in the violation of any applicable law.
(d) The Fund will use the proceeds from the sale of Units for the
purposes set forth in the Registration Statement.
(e) Units to be or which may be issued by the Fund have been duly
authorized for issuance and sale and, when issued and delivered by the Fund will
conform in all material respects to all statements relating thereto contained in
the Registration Statement.
(f) The Registration Statement and any selling materials prepared or
approved by the Fund do not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. If, at any time after the
commencement of the offering of Units and prior to the termination of such
offering, an event occurs that in the opinion of counsel to the Fund materially
affects the Fund and that should be set forth in an amendment or supplement to
the Registration Statement in order to make the statements in the Registration
Statement not misleading the Fund will notify the Distributor as promptly as
practicable of the occurrence of such event and prepare and furnish to the
Distributor copies of an amendment or supplement to the
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Registration Statement, in such reasonable quantities as it may request, for
delivery to Distributor's Subscribers in order that the Registration Statement
will not contain any untrue statement of any material fact or omit to state a
material fact that in the opinion of such counsel is necessary to make the
statements in the Registration Statement not misleading.
(g) This Agreement has been duly authorized, executed and delivered by
the Fund and, upon execution by the Distributor, will constitute a valid and
binding agreement of the Fund.
(h) Upon the Distributor's request, the Fund will make available to the
Distributor any information pertaining to the Fund reasonably requested by any
prospective investor.
(i) The foregoing covenants and representations shall be true and
correct as of the date hereof and for so long as the Agreement remains in effect
and the Distributor's subscribers are invested in that Fund.
5. ADDITIONAL REPRESENTATION, WARRANTIES AND COVENANTS OF THE DISTRIBUTOR.
The Distributor hereby represents and warrants to the Fund as follows:
(a) The Distributor will comply with all applicable laws and
regulations in connection with its activities as distributor.
(b) The Distributor has full power and authority to enter into, and to
perform its obligations under, this Agreement.
(c) The execution of this Agreement by the Distributor has been validly
authorized.
(d) In selling Units, the Distributor will solicit offers to buy Units
only in compliance with the procedures described in Section 1(i) above and the
Registration Statement. Neither the Distributor nor any other persons authorized
by the Distributor will give any information or make any representations, other
than those contained in the Registration Statement and any other Offering
Documents specifically approved by the Fund.
(e) The Distributor will distribute to each person to whom the
Distributor has furnished a copy of the Registration Statement and/or other
applicable written offering document any amendment or supplement thereto
provided to the Distributor by the Fund as may be applicable to such person.
(f) The Distributor acknowledges that transfers of Units (and their
repurchase by the Fund) are restricted as described in the Registration
Statement.
(g) The Distributor represents that it has an anti-money laundering
program in place reasonably designed to comply with Section 352 of the USA
Patriot Act, NASD Rule 3011, and NYSE Rule 445. The Distributor's anti-money
laundering program includes: ((3)) Anti-Money Laundering/ "Know your Customer"
polices and procedures; ((3)(3)) the designation of an Anti-Money Laundering
Compliance Officer; ((3)(3)(3)) recording-keeping and reporting practices in
accordance with applicable law; ((3)v) reporting of suspicious activity to
government authorizes in accordance with applicable law; (v) anti-money
laundering training; and (v(3)) independent testing for compliance. The
Distributor will provide such periodic reports or certification to the Fund
regarding this program as the Fund may reasonably request.
(h) The Distributor maintains all licenses and registrations necessary
under applicable law and regulations (including the rules of the NASD) to
provide the services required to be provided by the Distributor under this
Agreement.
6. LIABILITY; INDEMNIFICATION
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(a) The Fund agrees to indemnify, defend and hold the Distributor and
its affiliates and their respective officers, directors, employees, agents,
representatives and controlling persons free and harmless from and against any
and all claims, demands, liabilities and reasonable expenses (including the cost
of investigating or defending such claims, demands or liabilities and any
reasonable expenses (including the cost of investigation or defending such
claims, demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which the Distributor and its affiliates and their
respective officers, directors, employees, agents, representatives and/or any
such controlling person may incur arising out of or based upon ((3)) any untrue
statement of a material fact or omission to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading contained in the Registration Statement or other Offering Documents
(except to the extent such untrue statement or omission was made in reliance on
and in conformity with information provided in writing to the Fund, by the
Distributor for inclusion in the Registration Statement or other Offering
Documents); ((3)(3)) any material breach by the Fund of any provision of this
Agreement including any representation, warranty, covenant or agreement set
forth herein; ((3)(3)(3)) any material violation of any applicable law by the
Fund or its officers, directors, employees, agents (other than the Distributor),
or representatives; ((3)v) any actions of the Fund and its officers, directors,
employees and agents (other than the Distributor) or representatives relating to
the sale of Units, including but not limited to any statements or
representations, written or oral, concerning the Fund that such a party makes to
the Distributor and its agents and representatives; (v) the action of the Fund
and its employees and agents relating to the Fund's processing of Subscription
Agreements and the servicing of customer accounts; or (v(3)) any act or omission
made in respect of its function as Distributor; provided, however, that, in no
event shall anything herein be so construed as to protect the Distributor
against any liability to which the Distributor would otherwise be subject by
reason of its gross negligence, willful misfeasance or bad faith or reckless
disregard of its obligations and duties under this Agreement, or violation of
any applicable law by the Distributor in connection with the distribution of
Units. The Fund's agreement to indemnify the Distributor, and other indemnities
as aforesaid is expressly conditional upon the Fund being promptly notified of
any action brought against the Distributor, such as notification to be given by
letter or facsimile addressed to the Fund at the address set forth in this
Agreement or other address communicated to the Distributor in writing (but only
to the extent that the Fund is prejudiced by the failure to give prompt notice),
and further conditional upon the Distributor reasonably cooperating with the
Fund with respect to any claim or demand for which the Distributor seeks
indemnity and promptly defending such claims if the Fund reasonably requests. In
addition, any determination by the Fund under this Section 6(a) will be made in
accordance with Section 17 of the 1940 Act. The Fund agrees to promptly notify
the Distributor of the commencement of any litigation proceedings against the
Fund, or any of its officers or directors in connection with the issue and sale
of any Units.
(b) The Distributor agrees to indemnify, defend and hold the Fund and
its controlling persons free and harmless from and against any and all claims,
demands, liabilities and reasonable expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which such party may
incur, but only to the extent that such liability or expense incurred by such
party resulting from such claims or demands shall arise out of or be based upon
the Distributor's gross negligence, willful misfeasance, bad faith or reckless
disregard of its obligations and duties under this Agreement or violation by the
Distributor of any applicable law in connection with the distribution of Units.
The Distributor's agreement to indemnify such party as aforesaid is expressly
conditional upon the Distributor being promptly notified of any action brought
against such party, such notification to be given by letter or facsimile
addressed to the Distributor at its address set forth herein or other address
communicated to the Fund in writing (but only to the extent that the Distributor
is prejudiced by the failure to give prompt notice), and further conditional
upon such party reasonably cooperating with the Distributor with respect to any
claim or demand for which any of such party seeks indemnity and promptly
defending such claim if the Distributor reasonably requests.
(c) If recovery is not available under the foregoing indemnification
provisions of this Section 6 for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution toward the amount paid or payable by such indemnified party as a
result of the liabilities, claims, costs (including attorneys fees and
expenses), damages and expenses referred to in Subsection (a) or (b) above. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the ▇▇▇▇▇,
▇
the parties' relative knowledge and access to information concerning the matter
with respect to which the claim was asserted, the opportunity to correct and
prevent any untrue statement or omission, and any other equitable considerations
appropriate under the circumstances.
(d) Promptly after receipt by either party of notice of any claim or
the commencement of any action or proceeding with respect to which such party
may be entitled to be indemnified hereunder, the party claiming indemnification
(the "Indemnified Party") will notify the other party (the "Indemnifying Party")
in writing of such a claim or the commencement of such action or proceedings,
and the Indemnifying Party will assume the defense of such action or proceeding
and will employ counsel satisfactory to the Indemnified Party and will pay the
fees and expenses of such counsel as incurred. Notwithstanding the proceeding
sentence, the Indemnified Party will be entitled to employ counsel separate from
the Indemnifying Party's counsel and from any other party in such action if the
Indemnified Party determines that a conflict of interest exists which makes
counsel chosen by the Indemnifying Party not advisable or if the Indemnified
Party reasonably determines that the Indemnifying Party's assumption of the
defense does not adequately represent the Indemnified Party's interest. In such
event the Indemnifying Party will pay the fees and disbursements of such
separate counsel, but in no event shall the Indemnifying Party be liable for the
fees and expenses of more than one counsel (in addition to local counsel) for
the Indemnified Party in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(e) The Indemnifying Party agrees that it will not, without prior
written consent of the Indemnified Party, settle any pending or threatened claim
or proceeding related to or arising out of such engagement or transaction or
conduct in connection therewith (whether or not the Indemnified Party is a party
to such claim or proceeding) unless such settlement includes a provision
unconditionally releasing the Indemnified Party from and holding the Indemnified
Party harmless against all liability in respect of claims by any releasing party
related to or arising out of such engagement or any transaction or conduct in
connection therewith. The Indemnifying Party will also promptly reimburse the
Indemnified Party for all reasonable expenses (including counsel fees) as they
are incurred by the Indemnified Party in connection with investigating,
preparing or defending, or providing evidence in, any pending or threatened
claim or proceeding in respect of which indemnification may be sough hereunder
(whether or not the Indemnified Party is a party to such claim or proceeding) or
in enforcing this Agreement.
(f) The provisions of this Section 6 shall survive termination of this
Agreement.
7. TERMS AND TERMINATION
(a) This Agreement will become effective for all purposes as of March [
], 2005 and will remain in effect for an initial term of two years from such
date, unless terminated in accordance with the terms of this Agreement.
Thereafter, this Agreement will continue in effect from year to year, provided
that each such continuance is approved by the Fund's Board of Directors,
including the vote of a majority of the Directors who are not "interested
persons" of the Fund within the meaning of the 1940 Act.
(b) Either party may terminate this Agreement without cause, upon
thirty (30) days' prior written notice to the other party, or, if there has been
a material breach of any condition, warranty, representation or other term of
this Agreement by one party, by written notice to such breaching party, at any
time; provided however, that if this Agreement is terminated as to specific
Units, this Agreement shall only be deemed terminated with respect to those
Units. This Agreement shall terminate automatically in the event of its
"assignment" within the meaning of the 1940 Act.
8. NOTICE
Any notices under this Agreement shall be given in writing, sent by
hand, overnight courier, telecopier or certified or registered mail to the
address set forth below or to such other address as shall have been specified in
writing to the other party hereto, and shall be deemed to have been delivered
effective at the earlier of its receipt or within two (2) days after dispatch.
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If to the Fund:
CSFB Alternative Capital Long/Short Equity Institutional Fund, LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇, President
With a copy to:
CSFB Alternative Capital, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Legal and Compliance
If to the Distributor:
Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Private Client Services
With a copy to:
Credit Suisse First Boston LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Legal and Compliance
9. CONFIDENTIALITY
(a) The Fund hereby acknowledges that it has received or will receive
written and/or oral information (such information being referred to in this
Section 9 as "Customer Information") from the Distributor regarding those
customers of the Distributor that subscribe for Units including the names of the
Distributor's subscribers and that all such Customer Information has been or
will be furnished to them subject to the provision of this Section 9. The Fund
agrees that it will use, and that it will ensure that all of its affiliates and
agents and other entities providing services with respect to the Fund's use, the
Customer Information solely in connection with the subscription for Units by
subscribers, the booking of such Units, the administration of the Fund and the
performance of their respective roles with respect to the Fund and its Units,
and for no other purpose whatsoever. Furthermore, the Fund agrees that it will
not disclose or make available, and will ensure that none of their affiliates or
agents or other entities providing services with respect to the Fund discloses
or makes available, any Customer Information to any person or entity that does
not have a need to know such Customer Information in connection with the
foregoing. Specifically, and without limitation of the foregoing, the Fund
agrees that it will not disclose or make available, and will ensure that none of
their affiliates or agents or other entities providing service with respect to
the Fund disclose or make available, any Customer Information to any persons or
entities responsible for or involved in the marketing or products or services to
customers of such persons or entities.
(b) The Distributor acknowledges and agrees that the Fund and its
respective affiliates may disclose Customer Information or portions thereof (1)
at the request of a regulatory or self-regulatory agency or in connection with
an examination of the Fund, or such affiliates by regulatory examiners; (2)
pursuant to SUBPOENA or other legal process; (3) at the express direction of any
other authorized government or self-regulatory agency; (4) to its internal or
external attorneys or auditors; (5) to others to whom the Fund or such
affiliates are required to make such disclosure by law or regulation, and in any
of the circumstances mentioned in clause (2), (3), or (5), the Fund shall (to
the extent permitted by law) give the Distributor reasonable prior notice of any
disclosure and shall, in any event, advise the Distributor of any such
disclosure to the extent permitted by law.
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(c) The provisions of this Section 9 shall not apply to information
concerning a customer that is obtained in any manner other than pursuant to this
Agreement.
(d) The provisions of this Section 9 shall survive the termination of
this Agreement.
10. MISCELLANEOUS
(a) This Agreement is to be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to choice of laws
principles, and the provisions of the 1940 Act (which provisions shall control
in the event of any conflict between the laws of the State of New York and the
1940 Act). Neither this Agreement nor any term hereof may be amended, changed,
waived, discharged or terminated except by an instrument in writing signed by
both parties.
(b) This Agreement sets forth the entire agreement between the parties
hereto and replaces and supersedes all other understanding, commitments, and
agreements relating to the subject matter hereof.
(c) If any provision of this Agreement is determined to be
unenforceable, the remaining provisions shall remain enforceable to the extent
permissible.
(d) The Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
(e) All parties hereto are expressly put on notice of the Fund's
Limited Liability Company Operating Agreement, and all amendments thereto. This
Agreement has been executed by and on behalf of the Fund by its representatives
as such representatives and not individually, and the obligations of the Fund
hereunder are not binding upon any of the Board members, officers, or
unitholders of the Fund individually but are binding upon only the assets and
property of the Fund. With respect to any claim by the Distributor for recovery
of any liability of the Fund arising hereunder allocated to the Fund, whether in
accordance with the express terms hereof or otherwise, the Distributor shall
have recourse solely against the assets of the Fund to satisfy such claim and
shall have no recourse against the assets of any other fund for such purpose.
9
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be
duly executed as of the date first above written.
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY INSTITUTIONAL FUND, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title Secretary
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CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director
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APPENDIX A
OPERATING PROCEDURES
Unless otherwise agreed by the parties, the Fund agrees that it will
not accept any subscriptions for Units directly from the Distributor's customers
and that any such subscriptions must be made through the Distributor.
Unless otherwise agreed by the parties, the Distributor will deliver
all Subscription Agreements to the Services Agent or its designee and the
Services Agent or its designee will be responsible for reviewing all
Subscription Agreements to confirm that they have been completed in their
entirety.
The Fund or its designee will be responsible for maintaining records of
all subscribers and for providing Distributor's Subscribers, on a timely basis,
with at least quarterly statements of subscriptions and repurchases, and with at
least quarterly unaudited performance information for the Fund. The Fund or its
designee also will be responsible for providing the Distributor's Subscribers
with confirmations of subscriptions and repurchases.
The Distributor's Subscribers must comply with all subscription and
repurchase procedures, including deadlines, set forth in the Registration
Statement or otherwise communicated by the Fund to the Distributor with respect
to the transmission of subscription and repurchase requests.
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