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Exhibit (h)
TROON PARTNERS, ▇.▇.
▇/O OPPENHEIMER & CO., INC.
OPPENHEIMER TOWER
ONE WORLD FINANCIAL CENTER
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
Oppenheimer Tower
One World Financial Center - ▇▇▇▇ ▇▇▇▇▇
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Re: Appointment as Placement Agent
Ladies and Gentlemen:
Troon Partners, L.P., a limited partnership organized under
the laws of the State of Delaware (the "Partnership"), hereby agrees with you
as follows:
1. Partnership Offering.
The Partnership proposes to issue and to sell its limited
partnership interests ("Interests") in accordance with a Confidential
Memorandum issued by the Partnership dated January 1997, as amended from time
to time (the "Memorandum").
2. Definitions.
All capitalized terms used in this Agreement which are not
separately defined herein shall have the respective meaning set forth in the
Memorandum.
3. Placement of Interests.
(a) Subject to the terms and conditions set forth herein,
the Partnership hereby appoints you as its placement agent in connection with
the placement of Interests. Subject to the performance in all material
respects by the Partnership of its obligations hereunder, and to the
completeness and accuracy in all material respects of all of the
representations and warranties of the Partnership contained herein, you hereby
accept such agency and agree on the terms and conditions herein set forth to
use your best efforts to find qualified subscribers for Interests and to use
all reasonable efforts to assist the Partnership in obtaining performance by
each subscriber. You shall not have any liability to the Partnership in the
event that any subscriber fails to
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consummate the purchase of Interests for any reason other than your willful
misconduct or gross negligence.
(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, as amended (the "Securities Act"), pursuant to Section 4(2)
thereof and Regulation D under the Securities Act. Both you and the
Partnership have established the following procedures in connection with the
offer and sale 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 Regulation D and only to investors that qualify as
"accredited investors," as defined in Rule 501(a) under the Securities Act.
(ii) No sale of Interests to any one Purchaser
will be for less than the minimum denominations as may be specified in the
Memorandum.
(iii) No offer or sale of any Interest shall be
made in any state or jurisdiction, or to any prospective investor located in
any state or jurisdiction, where such Interests have not been registered or
qualified for offer and sale under applicable state securities laws unless such
Interests are exempt from the registration or qualification requirements of
such laws.
(iv) Sales of Interests will be made only to
investors that qualify as eligible clients under Rule 205-3 under the
Investment Advisers Act of 1940, as amended.
(c) For purposes of the offering of Interests, the
Partnership has furnished to you copies of the Memorandum and subscription
documentation which shall 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
purchasers only such information concerning the Partnership and the offering as
may be contained in the Memorandum or any written supplements thereto, and such
other materials as you have prepared and which comply with applicable laws and
regulations, including to the extent applicable the rules of the National
Association of Securities Dealers, Inc. (the "NASD").
4. Subscriptions During the Initial Offering Period.
(a) The initial offering period for the Interests shall
commence as soon as practicable after the date as of which this Agreement is
effective and be closed on February 21, 1997 or on such later date as may be
agreed to by Troon Management, L.L.C., as manager of the Partnership (the
"Initial Offering Period").
(b) All subscriptions for Interests and payments by
subscribers of subscription amounts for Interests shall be made pursuant to the
terms and conditions set forth in the Memorandum and subscription
documentation. Subscriptions shall be subject to acceptance by you as agent
for the Partnership, as described in Section 6 below.
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(c) All payments received by you hereunder for
subscriptions in the name and on behalf of the Partnership shall be handled by
you in accordance with the terms of the subscription documentation.
(d) If the offering is not completed in accordance with
the conditions set forth in the Memorandum, the Partnership may terminate the
offering. In such case, you will instruct PFPC Inc. to return all subscription
payments to investors.
5. Subscriptions After the Initial Offering Period.
(a) After the Initial Offering Period, the Partnership
may from time to time, in its sole discretion, offer Interests to investors for
purchase ("Subsequent Offerings").
(b) In Subsequent Offerings, the minimum additional
investment requirements shall be such amounts as are specified in the
Memorandum. All subscriptions for Interests in Subsequent Offerings and
payments therefor shall be made pursuant to the terms and conditions set forth
in the Memorandum, and subscriptions shall be subject to acceptance by you as
agent for the Partnership, as described in Section 6 below. In Subsequent
Offerings, the procedures set forth in Sections 4(c) and (d) shall also be
applicable.
6. Acceptance of Subscriptions.
You are appointed as agent of the Partnership for purposes of
determining whether to accept or to reject subscriptions for Interests.
Subscriptions shall be accepted only if the investor: (a) has supplied, or in
the case of an additional subscription by an existing limited partner,
previously supplied, to you properly completed subscription documentation; and
(b) has made proper payment for Interests. Subscriptions shall be rejected if
it appears to you that any of the terms or conditions applicable to
subscriptions for Interests as set forth in the Memorandum or subscription
documentation have not been satisfied.
7. Representations and Warranties of the Partnership.
The Partnership represents and warrants to you that:
(a) The Partnership has been duly formed and is validly
existing as a limited partnership 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) Interests to be or which may be issued by the
Partnership have been duly authorized for issuance and sale and, when issued
and delivered by the Partnership, Interests will conform to all statements
relating thereto contained in the Memorandum.
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(c) The issue and sale of Interests and the execution,
delivery and performance of the Partnership's obligations under the Memorandum
will not result in the violation of any applicable law.
(d) The Partnership will apply the proceeds from the sale
of Interests for the purposes set forth in the Memorandum.
(e) The Memorandum will not contain an untrue statement
of any material fact or omit to state any material fact necessary in order to
make statements therein in the light of the circumstances under which they were
made, not misleading.
(f) This Agreement has been duly authorized, executed and
delivered by the Partnership and, assuming your execution hereof, will
constitute a valid and binding agreement of the Partnership.
(g) Prior to and on the effective date of this Agreement,
neither the Partnership, nor to the knowledge of the Partnership any person
acting on behalf of the Partnership, has directly or indirectly offered or
sold, or attempted to offer or sell any Interests to or solicited offers to buy
any Interests from, or otherwise approached or negotiated with respect thereto
with, any prospective investor in connection with the placement thereof.
8. Covenants of the Partnership.
The Partnership covenants and agrees with you as follows:
(a) You and your counsel shall be furnished with such
documents and opinions as you and they may require, from time to time, for the
purpose of enabling you or them to pass upon the issuance and sale of Interests
as herein contemplated 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 herein contained; and all proceedings taken by the
Partnership and in connection with the issuance and sale of Interests as herein
contemplated shall be satisfactory in form and substance to you and your
counsel.
(b) If, at any time after the commencement of an offering
of Interests and prior to its termination, an event occurs which in the opinion
of counsel to the Partnership materially affects the Partnership and which
should be set forth in an amendment or supplement to the Memorandum in order to
make the statements therein not misleading in light of the circumstances under
which they are made, the Partnership will notify you as promptly as practical
of the occurrence of such 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 therein not misleading in
light of the circumstances under which they are made.
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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 and will maintain 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 you
hereunder.
(c) You have not and will not solicit any offer to buy or
offer to sell Interests in any manner which would be inconsistent with
applicable laws and regulations, or with the procedures for solicitations
contemplated by the Memorandum or by any form of general solicitation or
advertising, including, but not limited to, any advertisement, article, notice
or other communication published in any newspaper, magazine or similar medium
or broadcast over television or radio or conduct any seminar or meeting whose
attendees have been invited by any general solicitation or advertising.
(d) You will furnish each subscriber of Interests,
identified either by you or the Partnership, a copy of the Memorandum and
subscription documentation.
10. Compensation of Placement Agent.
(a) You will receive no fee, payment or other
remuneration for your services under this Agreement.
(b) Except as may otherwise by agreed to by the
Partnership, you shall 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.
11. Indemnification and Contribution.
The parties agree to indemnify one another as follows:
(a) The Partnership agrees to indemnify and hold harmless
you and each person, if any, 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"), 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), joint or
several, to which you or they may become subject under the Securities Act, the
Exchange Act or any other law or statute in any jurisdiction otherwise, insofar
as such losses, liabilities, claims, damages or expense (or actions in respect
thereof) arise out of or are based upon any untrue
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statement or alleged untrue statement of a material fact contained in the
Memorandum or the subscription documentation or any amendment or supplement
thereto, 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
Partnership will not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense 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 Partnership by you or through you
expressly for the use therein; and further provided that this indemnity shall
not protect you or any other person who may otherwise be entitled to indemnity
hereunder 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 hereunder. This
indemnity will be in addition to any liability which the Partnership may
otherwise have included under this Agreement.
(b) You agree to indemnify and hold harmless the
Partnership and each person who controls the Partnership within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against
any 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), joint or several, 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, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Memorandum or Subscription Agreement, or any amendment or
supplement thereto, 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, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense 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 Partnership by you
or on your behalf through you expressly for use therein. This indemnity will
be in addition to any liability which you may otherwise have incurred under
this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any other
liability which it may have under this Section 11 (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 thereof, the indemnifying party will be entitled to participate
therein and, to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; provided, however, that if, in the judgment of such
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indemnified party, a conflict of interest exists where it is advisable for such
indemnified party to be represented by separate counsel, the indemnified party
shall have the right to employ separate counsel in any such action, in which
event the fees and expenses of such separate counsel shall be borne by the
indemnifying party or parties. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof and the
approval by the indemnified party of counsel, the indemnifying party shall not
be liable to such indemnified party under such subsections for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation unless (i) the indemnified party
shall have employed separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
or parties shall not be liable for the expenses of more than one such separate
counsel representing the indemnified parties under subparagraph (a) of this
Section 11 who are parties to such action), (ii) the indemnifying party or
parties shall not have employed counsel 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, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii). No indemnifying party shall, 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 hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
12. Representations and Indemnities to Survive Delivery.
The agreements, representations, warranties, indemnities and
other statements of the parties and their officers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of you, or the Partnership, any general partners, directors or officers
of any of the foregoing or any person controlling any of the foregoing, and
(iii) acceptance of any payment for Interests hereunder. The provisions of
this Section 12 shall survive the termination or cancellation of this
Agreement.
13. Effective Date and Term of Agreement.
This Agreement shall become effective for all purposes as of
December 19, 1996, and shall remain in effect for an initial term of two years
from such date. Thereafter, this Agreement shall continue in effect from year
to year, provided that each such continuance is approved by the Individual
General Partners of the Partnership (the "IGPs"), including the vote of a
majority of the IGPs who are not "interested persons" of the Partnership as
defined by the Investment Company Act of 1940 (the "1940 Act") and the rules
thereunder.
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14. Termination.
This Agreement may be terminated as follows:
(a) 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 the other, by written notice
to such other at any time.
(b) By written notice to the Partnership, you may
terminate this Agreement at any time if (i) there has been, since the
respective dates as of which information is given in the Memorandum, any
material adverse change in the condition, financial or otherwise, of the
Partnership, which in your opinion, will make it inadvisable to proceed with
the delivery of Interests; (ii) there has occurred any outbreak of hostilities
or other domestic or international calamity or crisis the effect of which on
the financial markets is so substantial and adverse as to make it, in your
judgment, impracticable to market Interests or enforce contracts for the sale
of Interests; and (iii) any order suspending the sale of Interests shall have
been issued by any jurisdiction in which a sale or sales of Interests shall
have been made, or proceedings for that purpose shall have been initiated or,
to your best knowledge and belief, shall be contemplated.
(c) This Agreement shall terminate automatically in the
event of its "assignment" as such term is defined by the 1940 Act and the rules
thereunder.
15. Delegation of Powers.
You shall be entitled to delegate all or any of your duties,
functions or powers under this Agreement to another person as sub-agents
subject to the approval of the Partnership. However, you shall be solely
responsible for the acts and omissions of any such sub-agent and for the
payment of any remuneration to such sub-agent.
16. Notices.
All communications under this Agreement shall be given in
writing, sent by (i) telecopier, (ii) telex confirmed by answerback, or (iii)
registered mail to the address set forth below or to such other address as such
party shall have 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 ▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.:
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇▇▇▇▇▇▇ Tower
One World Financial Center
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel
If to Troon Partners, L.P.:
Troon Partners, L.P.
c/o Oppenheimer & Co., Inc.
▇▇▇▇▇▇▇▇▇▇▇ Tower
One World Financial Center
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
17. Miscellaneous.
(a) This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall constitute one
and the same instrument. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns and
no other person shall have any right or obligation hereunder.
(b) This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof, and neither this
Agreement nor any term hereof 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 shall not limit or
otherwise affect the meaning hereof.
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18. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof, 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 shall control.
If the foregoing correctly sets forth our understanding with
you, please indicate your acceptance in the space provided below whereupon this
letter will form a valid and binding contract among the signers in accordance
with its terms.
Very truly yours,
TROON PARTNERS, L.P.
By: TROON MANAGEMENT, L.L.C.
By: ▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Date: December 19, 1996
Agreed to and accepted:
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Date: December 19, 1996
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