Exhibit (2)(h)
PLACEMENT AGENCY AGREEMENT
X.X. XXXXXX ATLAS GLOBAL LONG/SHORT EQUITY FUND, L.L.C.
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Appointment as Placement Agent
Ladies and Gentlemen:
X.X. Xxxxxx Atlas Global Long/Short Equity Fund, L.L.C., a limited
liability company formed under the laws of the State of Delaware (the "Fund"),
agrees with you as follows:
1. Fund Offering.
The Fund proposes to issue and to sell limited liability company interests
("Interests") in accordance with a Private Placement Memorandum issued by the
Fund, as amended or supplemented from time to time (the "Memorandum").
2. Definitions.
All capitalized terms used in this Agreement that are not separately
defined in this Agreement have the respective meanings set out in the
Memorandum.
3. Placement of Interests.
(a) Subject to the terms and conditions set forth in this Agreement, the
Fund appoints you as a placement agent in connection with the placement of
Interests. This appointment is non-exclusive and we may appoint at any time and
from time to time other placement agents in our sole discretion. Subject to the
performance in all material respects by the Fund of its obligations under this
Agreement, and to the completeness and accuracy in all material respects of all
of the representations and warranties of the Fund contained in this Agreement,
you accept such agency and agree on the terms and conditions set out in this
Agreement to use your best efforts to find qualified subscribers for Interests
and to use all reasonable efforts to assist the Fund in obtaining performance by
each subscriber.
(b) The offers and sales of Interests are to be effected pursuant to the
exemption from the registration requirements of the Securities Act of 1933 (the
"Securities Act"), pursuant to Section 4(2) of that Act and/or Regulation D
under that Act. Both you and the Fund have established the following procedures
in connection with the offers and sales of Interests and agree that neither of
you will make offers or sales of any Interests except in compliance with such
procedures:
(i) Offers and sales of Interests will be made only in compliance
with Section 4(2) of the Securities Act and/or Regulation D under that Act
and only to investors that qualify as "accredited investors," as defined
in Rule 501(a) under that Act.
(ii) Sales of Interests will be made only to investors that qualify
as "qualified clients," as defined in Rule 205-3 under the Investment
Advisers Act of 1940.
(iii) No sale of an Interest to any one investor will be for less
than the minimum denominations as may be specified in the Memorandum;
provided, that the Managing Member may from time to time vary such minimum
denominations with respect to individual investors or categories of
investors.
(iv) No offer or sale of an Interest may be made in any state or
foreign jurisdiction, or to any prospective investor located in any state
or foreign jurisdiction, where such Interest has not been registered or
qualified for offer and sale under applicable state or foreign securities
laws unless such Interest is exempt from the registration or qualification
requirements of such laws. In all instances, the Fund will inform you of
the permissible states and foreign jurisdictions with respect to offers
and sales of Interests. No offers or sales of Interests may be made in any
other jurisdiction without the Fund's advance approval.
(c) For purposes of the offering of Interests, the Fund has furnished to
you copies of the Memorandum and subscription documentation that will be
furnished to prospective investors. Additional copies will be furnished in such
numbers as you may reasonably request for purposes of the offering. You are
authorized to furnish to prospective investors only such information concerning
the Fund and the offering as may be contained in the Memorandum or any written
supplements to the Memorandum, or in any executive summary, "flip book" or other
materials relating to the Fund, in each case as we have prepared or as you have
prepared and we have reviewed and approved (our approval of any such other
materials shall not relieve you of your obligation to ensure the accuracy of any
such other materials, except to the extent you rely on information provided by
the Fund in preparing such materials, or of your obligation to ensure that your
use of all materials is in compliance with all applicable U.S. laws and
regulations). You will keep a record of each prospective investor to which or to
whom you furnish a copy of the Memorandum or other materials and will promptly
provide us with such records at any time upon our written request.
4. Subscriptions for Interests.
(a) The initial closing date for subscriptions for Interests is October 1,
2003 (the "Initial Closing Date"). After the Initial Closing Date, the Fund may
from time to time, in the sole discretion of the Managing Member, offer
Interests to investors for purchase ("Subsequent Offerings"). The Fund expects
that Subsequent Offerings will occur monthly and that subscriptions for
Interests will be accepted as of the first day of each month.
(b) All subscriptions for Interests and payments by subscribers of
subscription amounts for Interests will be made in accordance with the terms and
conditions set out in the Memorandum and subscription documentation; provided,
that the Managing Member may from
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time to time vary the minimum subscription amounts with respect to individual
investors or classes of investors. Subscriptions will be subject to acceptance
by the Managing Member, as described in Section 5 below.
(c) All payments received by you under this Agreement for subscriptions in
the name and on behalf of the Fund will be handled by you in accordance with the
terms of the subscription documentation.
(d) If the Managing Member rejects any subscriptions, it will notify PFPC
Trust Company, as custodian for the Fund, and PFPC Inc., as escrow agent for the
Fund, or any other custodian or escrow agent who may be serving in such capacity
at that time, to return all subscription payments to investors, plus accrued
interest, if any.
5. Transmission of Subscriptions.
You are appointed as agent of the Fund and its Managing Member for
purposes of determining whether to transmit subscriptions for Interests to the
Managing Member. Subscriptions will be transmitted only if the investor: (a) has
supplied properly completed subscription documentation or, in the case of an
additional investment by an existing member, has supplied the proper short-form
additional subscription document, which confirms the representations and
statements made in the previously-supplied subscription documentation; and (b)
has made proper payment for Interests. Subscriptions will not be transmitted if
it appears that any of the terms or conditions applicable to subscriptions for
Interests as set out in the Memorandum, the subscription documentation, or
Section 3(b) of this Agreement have not been satisfied, in which case you will
use reasonable efforts to obtain properly completed subscription documentation
and any other necessary information. Properly completed subscription
documentation will be promptly transmitted to the Managing Member. The Managing
Member reserves the right to reject any subscriptions for Interests in the Fund
and may, in its sole discretion, suspend subscriptions for Interests at any time
and from time to time.
6. Eligibility and Suitability; Investor Servicing.
You are responsible for ensuring that you present to the Fund only
prospective investors that you reasonably believe are eligible to invest in the
Fund and that satisfy all the conditions set out in the Memorandum, and for
ensuring that an investment in the Fund is a suitable investment for such
prospective investor. You agree to perform administrative and client servicing
functions with respect to investors that you introduce to the Fund, including
but not limited to: (a) responding to investor inquiries regarding account
status and history, the manner in which purchases, tenders and transfers of
Interests are effected and providing copies of the forms relating to such
transactions required by the Fund to such investors; (b) passing on copies
(without any amendment thereto) of all documents supplied by the Fund or their
authorized agents for the information of or completion by investors, including
but not limited to the Fund's annual and semi-annual financial statements and
its monthly and quarterly reports, to the extent such documents are not provided
directly by the Fund to investors; and (c) other client servicing functions as
you deem appropriate or as may be agreed with the Investment Manager or the
Managing Member from time to time.
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7. Representations and Warranties of the Fund.
The Fund represents and warrants to you that:
(a) The Fund has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware with
all requisite power and authority, all necessary authorizations, approvals,
orders, licenses, certificates and permits of and from all governmental
regulatory officials and bodies, and all necessary rights, licenses and permits
from other parties, to conduct its business as described in the Memorandum.
(b) The Fund intends to engage in business as a closed-end,
non-diversified management investment company and is registered as such under
the Investment Company Act of 1940 ("1940 Act").
(c) Interests to be or which may be issued by the Fund have been duly
authorized by the Fund for issuance and sale and, when issued and delivered by
the Fund, Interests will conform in all material respects to all statements
relating to Interests contained in the Memorandum.
(d) The issuance and sale of Interests by the Fund and the execution,
delivery and performance of the Fund's obligations under this Agreement will not
result in the violation of any applicable law.
(e) The Fund will apply the proceeds from the sale of Interests for the
purposes set out in the Memorandum.
(f) The Memorandum, including any amendments or supplements thereto, any
executive summary or "flip book" pertaining to the Fund, or other written
materials concerning the Fund, in each case furnished to JPMorgan by the Fund,
will not contain an untrue statement of any material fact or omit to state any
material fact necessary in order to make statements therein not misleading in
light of the circumstances under which they were made.
(g) This Agreement has been duly authorized, executed and delivered by the
Fund and, assuming your execution of the same, will constitute a valid and
binding agreement of the Fund.
8. Covenants of the Fund.
The Fund covenants and agrees with you as follows:
(a) You will be furnished with such documents as you may reasonably
require, from time to time, for the purpose of enabling you to pass upon the
issuance and sale of Interests as contemplated in this Agreement and related
proceedings, 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.
(b) If, at any time after the Initial Closing Date, an event occurs that
in the opinion of counsel to the Fund materially affects the Fund and that
should be set out in an
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amendment or supplement to the Memorandum in order to make the statements in the
Memorandum not misleading in light of the circumstances under which they are
made, the Fund will notify you as promptly as practical of the occurrence of the
event and prepare and furnish to you copies of an amendment or supplement to the
Memorandum, in such reasonable quantities as you may request, in order that the
Memorandum will not contain any untrue statement of any material fact or omit to
state a material fact which in the opinion of such counsel is necessary to make
the statements in the Memorandum not misleading in light of the circumstances
under which they are made.
9. Representations and Warranties of the Placement Agent.
You represent and warrant that:
(a) You are duly authorized to enter into and perform, and have duly
executed and delivered, this Agreement.
(b) You have maintained and will maintain all licenses and registrations
necessary under applicable U.S. law and regulations (including the rules of the
National Association of Securities Dealers, Inc.) to provide the services
required to be provided by you under this Agreement.
(c) You have not solicited and will not solicit any offers to buy or
offers to sell Interests in any manner that would be inconsistent with
applicable U.S. laws and regulations, or with the procedures for solicitations
contemplated by the Memorandum or this Agreement, in any manner that would
constitute a general solicitation or general advertising with respect to
Interests, including, but not limited to, any seminar or meeting conducted whose
attendees have been invited by any general solicitation or general advertising,
or any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television, radio or
other means of electronic communication, unless access to that communication is
limited to those persons eligible to purchase Interests. You will otherwise
comply with all applicable U.S. laws and regulations in carrying out your
obligations under this Agreement.
(d) You will furnish to each subscriber of an Interest solicited by you,
or otherwise confirm the receipt by such subscriber of, a current copy of the
Memorandum, including any current amendments or supplements to the Memorandum
provided to you by the Fund pursuant to Section 8(b) of this Agreement, the LLC
Agreement, the subscription documentation (in the case of a new subscriber), the
short-form additional subscription documentation (in the case of an existing
member), and any other such additional information as the Fund or the Investment
Manager sees fit or as may be reasonably requested by the Fund or the Investment
Manager or required by applicable law or regulation, prior to the subscriber's
admission as a member of the Fund, or, in the case of an additional investment
by an existing member, prior to the acceptance of an additional subscription (to
the extent such member has not already received such documentation) from such
existing member.
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10. Anti-Money Laundering Measures.
(a) You understand and agree that the Fund prohibits the investment of
funds by any persons or entities that are acting, directly or indirectly, (i) in
contravention of any applicable U.S. laws and regulations, including anti-money
laundering regulations or conventions, (ii) on behalf of terrorists or terrorist
organizations, including those persons or entities that are included on the List
of Specially Designated Nationals and Blocked Persons maintained by the U.S.
Treasury Department's Office of Foreign Assets Control(1) ("OFAC"), as such list
may be amended from time to time, (iii) for a senior foreign political figure,
any member of a senior foreign political figure's immediate family or any close
associate of a senior foreign political figure(2), unless the Managing Member,
after being specifically notified by you in writing that an investor is such a
person, conducts further due diligence or requests that you conduct further due
diligence, and determines that such investment shall be permitted, or (iv) for a
foreign shell bank(3) (such persons or entities in (i) - (iv) are collectively
referred to as "Prohibited Persons").
(b) You undertake to:
(i) comply with all applicable U.S. laws, rules, regulations and
other requirements, including those relating to anti-money laundering
provisions;
(ii) establish the identity of all investors and carry out
verification of the identity of such investors and hold evidence of the
identities of all investors, and to the extent such an investor (other
than an investor that is a publicly traded entity) has any beneficial
owners(4), carry out due diligence to establish the identities of such
beneficial owners;
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1 The OFAC list may be accessed on the web at xxxx://xxx.xxxxx.xxx/xxxx.
2 Senior foreign political figure means a senior official in the executive,
legislative, administrative, military or judicial branches of a foreign
government (whether elected or not), a senior official of a major foreign
political party, or a senior executive of a foreign government-owned
corporation. In addition, a senior foreign political figure includes any
corporation, business or other entity that has been formed by, or for the
benefit of, a senior foreign political figure. The immediate family of a
senior foreign political figure typically includes the political figure's
parents, siblings, spouse, children and in-laws. A close associate of a
senior foreign political figure is a person who is widely and publicly
known internationally to maintain an unusually close relationship with the
senior foreign political figure, and includes a person who is in a
position to conduct substantial domestic and international financial
transactions on behalf of the senior foreign political figure.
3 Foreign shell bank means a foreign bank without a physical presence in any
country, but does not include a regulated affiliate. A post office box or
electronic address would not be considered a physical presence. A
regulated affiliate means a foreign shell bank that: (1) is an affiliate
of a depository institution, credit union, or foreign bank that maintains
a physical presence in the United States or a foreign country, as
applicable; and (2) is subject to supervision by a banking authority in
the country regulating such affiliated depository institution, credit
union, or foreign bank.
4 Beneficial owners will include, but not be limited to: (i) shareholders of
a corporation; (ii) partners of a partnership; (iii) members of a limited
liability company; (iv) investors in a fund-of-funds; (v) the grantor of a
revocable or grantor trust; (vi) the beneficiaries of an irrevocable
trust; (vii) the participant in a self-directed pension plan; (viii) the
sponsor of any other pension plan; and (ix) any person being represented
by
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(iii) keep all records and documentation pertaining to any related
due diligence procedures;
(iv) in the event the Managing Member, the Fund or the Investment
Manager is required by the relevant authorities in the United States or
any other relevant authority, to satisfy itself or such authorities as to
the identity of any investor, or in the event that the Managing Member,
the Fund or the Investment Manager presents you with reasonably probative
evidence that money laundering has occurred or is occurring, provide
copies of all due diligence materials relating to such investor to the
Managing Member, the Fund, the Investment Manager and/or all authorities,
as relevant; and
(v) have in place procedures to prevent your activities from causing
an investment in the Fund being made, either directly or indirectly, (A)
in contravention of any applicable laws and regulations, including
international money laundering regulations or conventions, or (B) by any
Prohibited Person.
11. Compensation of Placement Agent.
(a) Subject to any more specific terms that you may from time to time
agree with the Managing Member or the Investment Manager, you are entitled to
charge a sales commission on the purchase price of an Interest of up to 3.0%
upon acceptance of the subscription documentation by the Managing Member as
generally described in the Memorandum. You will ensure that the amount of the
sales commission is either (i) paid directly to you by the investor or (ii)
deducted by you from the investor's subscription amount and that the balance of
the subscription amount is remitted to the Fund's escrow agent. You will notify
the Fund of the amount of the sales commission that is paid with respect to each
subscription of an Interest as well as the subscription amount remitted to the
Fund's escrow agent with respect to each subscription.
(b) Except as may otherwise be agreed to by the Fund, you will be
responsible for the payment of all costs and expenses incurred by you in
connection with the performance of your obligations under this Agreement,
including the costs associated with the preparation, printing and distribution
of any sales materials and ensuring the compliance of such materials with all
applicable laws and regulations (other than those costs associated with
preparing and updating the Memorandum, which costs will be borne by the Fund)
and the costs of performing the obligations set out in Section 6 above. You must
receive the approval of the Investment Manager or the Managing Member prior to
the distribution of any sales materials.
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the investor in an agent, representative, intermediary, nominee or similar
capacity. If the beneficial owner is itself an entity (other than a
publicly-traded entity), then "beneficial owners" shall include that
entity's beneficial owners.
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12. Indemnification.
The parties agree to indemnify one another as follows:
(a) The Fund agrees to indemnify and hold harmless you and each person who
controls you within the meaning of Section 15 of the Securities Act or Section
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") ("controlling
person") against any and all losses, liabilities, claims, damages and expenses
whatsoever (including, but not limited to, attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation) ("Losses", and
individually, a "Loss") to which you or a controlling person may become subject
under the Securities Act, the Exchange Act or any other law or statute in any
jurisdiction, insofar as such Losses (or actions in respect of such Losses)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Memorandum, the subscription documentation,
or any document furnished to you by the Fund pursuant to paragraphs 3(c) or 9(d)
of this Agreement, as such documents may be amended or supplemented from time to
time, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the Fund will not
be liable to you or any controlling person in any case to the extent, but only
to the extent, that any such Loss arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Fund by you or through you expressly for the use therein; and further
provided that this indemnity will not protect you or any other person who may
otherwise be entitled to indemnity under this Agreement from or against any
liability to which you or they would be subject by reason of your own or their
own willful misfeasance, bad faith, gross negligence or reckless disregard of
your or their duties under this Agreement. Any determination by the Fund to
indemnify you for the foregoing liabilities will be made in accordance with the
requirements of Section 17 of the 1940 Act. This indemnity will be in addition
to any liability that the Fund may otherwise have incurred under this Agreement.
(b) You agree to indemnify and hold harmless the Fund, the Investment
Manager, the Managing Member, and each controlling person of the Fund against
any Losses to which you or they may become subject under the Securities Act, the
Exchange Act or any other law or statute in any jurisdiction, insofar as such
Losses (or actions in respect of such Losses) arise out of or are based upon a
breach by you of any of the covenants, agreements, representations or warranties
contained in this Agreement, or upon any untrue statement or alleged untrue
statement of a material fact made by you, or an omission or alleged omission to
state a material fact necessary to make a statement made by you not misleading,
in connection with your placement of Interests; provided, however, that you will
not be liable to the Fund or any controlling person of the Fund in any case to
the extent, but only to the extent, that any such Loss arises out of or is based
upon a statement by you in reliance on or in conformity with the Memorandum or
the subscription documentation, as such documents may be amended or supplemented
from time to time, or other written information furnished to you or on your
behalf through you by the Fund expressly for use in connection with the
placement of Interests; and further provided that this indemnity will not
protect the Fund, the Investment Manager, the Managing Member, and each
controlling person of the Fund or any other person who may otherwise be entitled
to indemnity
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under this Agreement from or against any liability to which they would be
subject by reason of their own willful misfeasance, bad faith, or reckless
disregard of their duties under this Agreement. This indemnity will be in
addition to any liability that you may otherwise have incurred under this
Agreement.
(c) Promptly after receipt by an indemnified party under Section 12(a) or
(b) of this Agreement of notice of the commencement of any action, the
indemnified party will, if a claim in respect of the action is to be made
against the indemnifying party under Section 12(a) or (b) of this Agreement,
notify the party against whom indemnification is to be sought in writing of the
commencement of the action. The failure so to notify an indemnifying party will
not relieve it from any other liability which it may have under this Section 12
(except to the extent that it has been prejudiced in any material respect by
such failure) or from any liability which it may have otherwise. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement of the action, the indemnifying party
will be entitled to participate in the action and, to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
notice from the indemnified party, to assume the defense of the action with
counsel reasonably satisfactory to the indemnified party; provided, however,
that if, in the reasonable judgment of the indemnified party, a conflict of
interest exists where it is advisable for the indemnified party to be
represented by separate counsel, the indemnified party will have the right to
employ separate counsel in any such action, in which event the fees and expenses
of the separate counsel will be borne by the indemnifying party or parties.
After notice from the indemnifying party to the indemnified party of its
election to assume such defense and the approval by the indemnified party of
counsel, the indemnifying party will not be liable to the indemnified party
under Section 12(a) and (b) of this Agreement for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by the
indemnified party, in connection with the defense of such action other than
reasonable costs of investigation unless (i) the indemnified party will have
employed separate counsel in accordance with this Section 12(c) (it being
understood, however, that the indemnifying party or parties will not be liable
for the expenses of more than one separate counsel representing the indemnified
parties under Section 12(a) of this Agreement who are parties to such action),
(ii) the indemnifying party or parties will not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or parties; and
except that, if clause (i) or (iii) is applicable, liability for expenses will
be only in respect of the counsel referred to in such clause (i) or (iii). No
indemnifying party will, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought under this Agreement by the indemnified party, unless such
settlement includes an unconditional release of the indemnified party from all
liability on claims that are the subject matter of the proceeding.
13. Representations and Indemnities to Survive Delivery.
The agreements, representations, warranties, indemnities and other
statements of the parties and their officers set out in or made in accordance
with this Agreement will remain in full force and effect, regardless of (a) any
termination of this Agreement, (b) any investigation made
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by or on behalf of you, or the Fund, the Managing Member, the Investment
Manager, any Directors serving on the Board of Directors of the Fund, directors
or officers of any of the foregoing or any person controlling any of the
foregoing, and (c) acceptance of any payments for Interests under this
Agreement. The provisions of this Section 13 will survive the termination or
cancellation of this Agreement.
14. Intellectual Property Rights.
(a) For purposes of this clause:
(i) "IPR" means all intellectual property rights including, without
limitation, copyrights, design rights, patent rights, know-how, trade
marks, business names, domain names and copyrights in computer software
belonging to the Fund.
(ii) "Promotional Materials" means all materials used in the
advertising and promotion of the Fund including, without limitation,
brochures, web sites and the Memorandum, whether in paper, electronic or
other form.
(iii) "Trade Marks" means the registered and unregistered trade
marks and trade xxxx applications that the Fund or the Investment Manager
may license to you to use in a territory in respect of the Fund.
(b) The Fund and the Investment Manager hereby grant to you the
non-exclusive right to use the Trade Marks and other IPR in the Promotional
Materials for the purpose of advertising, promoting and selling the Fund in
accordance with the terms of and for the duration of this Agreement.
(c) The ownership of any and all IPR that exists in the Promotional
Materials and the Fund, howsoever disseminated or used by you, including any
changes, adaptations, modifications or improvements to the Promotional Materials
or the Fund, will remain the property of the Fund and will not vest in you or
any of your officers, employees, delegates or agents.
(d) The Fund and the Investment Manager make no representations or
warranties as to the validity or enforceability of the Trade Marks or other IPR
nor as to whether the same infringe upon any intellectual property rights of
third parties.
(e) You will enter into any document necessary for the recording,
registration or safeguarding of IPR and for the assignment to the Fund of rights
in the changes, adaptations, modifications or improvements referred to in
Section 14(c).
15. Effective Date and Term of Agreement.
This Agreement will become effective for all purposes as of the date of
its execution and will remain in effect for an initial term of two years from
such date, unless terminated by either party in accordance with the terms of
this Agreement. Thereafter, this Agreement will continue in effect from year to
year, provided that each continuance is approved by the Board of
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Directors, including the vote of a majority of the Directors who are not
"interested persons," as defined by the 1940 Act and the rules under that Act,
of the Fund.
16. Termination.
Either party may terminate this Agreement without cause by written notice
to the other on not less than thirty (30) days' notice, or, if there has been a
material breach of any condition, warranty, representation or other term of this
Agreement, by written notice from the non-breaching party to the party in breach
at any time.
17. Delegation of Powers.
You will be entitled to delegate all or any of your duties, functions or
powers under this Agreement to another person or persons as sub-agent or
sub-agents subject to the approval of the Managing Member. You will be solely
responsible, however, for the acts and omissions of any such sub-agent as if
such acts or omissions were your own and for the payment of any remuneration to
such sub-agent.
18. Notices.
Any notice, consent, instruction or other instrument or communication
required or permitted to be given hereunder by a party may be delivered in
person, sent by courier service or certified or registered post,
postage-prepaid, faxed or transmitted via e-mail to the address of the other
parties set forth below or such other address as may be notified in writing to
the other parties, and shall be deemed to have been properly delivered or given
hereunder and shall be effective on: (i) the date of delivery if delivered in
person or sent by Federal Express or other recognized courier who obtains a
signature acknowledging receipt; (ii) the date of transmission, if faxed or
transmitted via e-mail, provided that receipt of a facsimile or e-mail is
verified by telephone (and failing such verification, only upon actual receipt);
or (iii) five days after the same has been tendered for delivery by the post if
sent by certified or registered post, postage prepaid.
If to the Placement Agent:
X.X. Xxxxxx Securities Inc.
Attn: Xxxxx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Email: xxxxx.xxxx@xxxxxxxx.xxx
If to the Fund:
X.X. Xxxxxx Atlas Global Long/Short Equity Fund, L.L.C.
c/o PFPC Inc.
Attn: Xxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
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Facsimile: 000-000-0000
Email: xxxx.xxxxxxxx@xxxx.xxx
Copy to:
X.X. Xxxxxx Alternative Asset Management, Inc.
Attn: Xxxx Xxxxxxx
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Email: xxxx.xxxxxxx@xxxxxxxx.xxx
19. Miscellaneous.
(a) This Agreement may be executed in two or more counterparts, each of
which when so executed and delivered will constitute one and the same
instrument. This Agreement will inure to the benefit of and be binding upon the
parties to this Agreement and their respective successors and assigns and no
other person will have any right or obligation under this Agreement.
(b) This Agreement supersedes all prior agreements and understandings
relating to the subject matter of this Agreement, and neither this Agreement nor
any of its terms may be changed, waived, discharged or terminated except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and will not limit or otherwise
affect the meaning of this Agreement.
20. Governing Law.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York without regard to the conflicts of laws provisions
of such laws, and with the provisions of the 1940 Act. In the event of any
conflict between the provisions of the laws of New York and those of the 1940
Act, the 1940 Act provisions will control.
19. Bound Parties.
The parties to this Agreement agree that the obligations of the Fund under
this Agreement will not be binding upon any Directors or members of the Fund, or
upon any officers, employees or agents, whether past, present or future, of the
Fund, individually, but are binding only upon the assets and property of the
Fund.
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If the foregoing correctly sets out our understanding with you, please
indicate your acceptance in the space provided below.
Very truly yours,
X.X. XXXXXX ATLAS GLOBAL LONG/SHORT
EQUITY FUND, L.L.C.
By: Xxxxxxx Associates, L.L.C., as its
Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Sole Member
Date: September 30, 2003
Agreed to and accepted:
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
Date: September 30, 2003
13
