[Exhibit 10.17]
DISCRETIONARY ADVISORY AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the 8th day of
December, 2005 between XXXXXXX XXXXX ASSET MANAGEMENT, L.P., a limited
partnership organized under the laws of Delaware (the "Adviser") and Validus
Reinsurance, Ltd (the "Client").
WHEREAS, the Adviser and Xxxxxxx Sachs Asset Management
International, Xxxxxxx Xxxxx Asset Management Japan Limited, Xxxxxxx Sachs
(Asia) L.L.C., Xxxxxxx Xxxxx (Singapore) Pte., and other advisory affiliates
(collectively, "Affiliate Advisers") of Xxxxxxx, Sachs & Co. ("Xxxxxxx Xxxxx")
may, subject to applicable law and contract, provide investment advice to
clients;
WHEREAS, the Client desires to appoint the Adviser as the investment
adviser of the portion of the assets of the Client constituting the Account (as
defined in Section 4), and the Adviser wishes to accept such appointment;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, it is covenanted and agreed as follows;
1. Appointment of Investment Adviser; Acceptance of Appointment. The
Adviser is hereby appointed as investment adviser to the Account for the purpose
of selecting and executing transactions which are in compliance with the
Account's Investment Guidelines (as defined in Section 2) and the Adviser hereby
accepts such appointment. In performing its obligations under this Agreement the
Adviser may, at its own discretion, delegate any or all of its discretionary
investment. advisory and other rights, powers and functions hereunder to any
Affiliate Advisers, without further written consent of the Client, provided that
the Adviser shall always remain liable to the Client for its obligations
hereunder. References herein to the Adviser shall include, except in Section 20
hereof, any of the Affiliate Advisers to which the Adviser delegates
responsibilities hereunder.
2. Discretion; Management of Account and Powers of Adviser. (a) The
Adviser is hereby authorized to supervise and direct the investment and
reinvestment of assets in the Account, with full authority and at its discretion
(without reference to the Client), on the Clients behalf and at the Client's
risk, subject to the written investment restrictions and guidelines (the
"Investment Guidelines") in respect of one or more sub-accounts and attached
hereto as Appendix A. An investment's compliance with the Investment Guidelines
shall be determined on the date of purchase only, based upon the price and
characteristics of the investment on the date of purchase compared to the value
of the Account as of the most recent valuation date; the Investment Guidelines
shall not be deemed breached as a result of changes in value or status of an
investment following purchase. The Adviser's authority and discretion hereunder
shall include, without limitation, the power to buy, sell, retain and exchange
investments and affect transactions; and other powers as the Adviser deems
appropriate in relation to investing and executing transactions for the Account.
The Client hereby authorizes the
Adviser to open accounts and execute documents, indemnities and representation
letters in the name of, binding against and on behalf of the Client for all
purposes necessary or desirable in the Adviser's view to effectuate the
Adviser's activities under this Agreement.
(b) The Client may from time to time amend the Investment Guidelines.
The Adviser will not be bound to follow any amendment to the Investment
Guidelines, however, until it has received actual written notice of the
amendment from the Client and has agreed to accept such amendment. All
transactions effected for the Account will be deemed to be in compliance with
the Investment Guidelines unless written notice to the contrary is received by
the Adviser from the Client within 30 days following the first issue of the
periodic report containing such transactions.
(c) The Adviser may in its sole discretion invest the Account in any
investment company, unit trust or other collective investment fund, registered
or non-registered, for which the Adviser or any of its affiliates serves as
investment adviser ("Affiliated Fund"); provided, however, that the purposes of
such investment are limited management of short-term cash balances in the
Account. The Adviser will make such investments only if in its reasonable view
the Affiliated Fund is, based on yield, safety, charges, nature of investment
program, liquidity and other relevant factors, an equivalent investment to
competing investments. In connection with investments in Affiliated Fund(s), the
Client will pay its share of all fees, expenses and 12b-1 fees (if any)
associated with investing in such Affiliated Fund(s); provided, that the Adviser
agrees to waive the advisory fee payable by the Client hereunder for those
Account assets invested from time to time in Affiliated Funds. The Client may
revoke its consent to investment in Affiliated Funds at any time by written
notice to the Adviser.
3. Portfolio Transactions. (a) The Adviser will place orders for the
execution of transactions for the Account in accordance with Part II of the
Adviser's Form ADV as may be amended from time to time. Best price, giving
effect to commissions and commission equivalents, if any, and other transaction
costs, is normally an important factor in this decision, but the selection also
takes into account the quality of brokerage services, including such factors as
execution capability, willingness to commit capital, creditworthiness and
financial stability, and clearance and settlement capability, and the provisions
of research and other services. Accordingly, transactions will not always be
executed at the lowest available price or commission. The Adviser may select a
broker-dealer that furnishes the Adviser directly or through correspondent
relationships with third party research or other services which provide in the
Adviser's view appropriate assistance to the Adviser in the investment
decision-making process (including with respect to futures, fixed-price
offerings and over-the-counter transactions, if such instruments are permitted
by the Investment Guidelines). Such research or other services may include
research reports on companies, industries, and securities; economic and
financial data; financial publications; computer data bases; quotation equipment
and services; and research-oriented computer hardware, software and other
services. These selections, and the total amount of commissions given a
particular broker-dealer, may be made pursuant to an agreement that would bind
the Adviser to compensate the selected broker-dealer for the services provided.
Research and other services obtained in this manner may be used in servicing any
or all of the Adviser's clients and may be used in connection with accounts
other than those that pay commissions to the broker-dealer relating to the
research or
other service arrangements. The Adviser may endeavor to direct sufficient
commissions to broker-dealers who, pursuant to such arrangements, provide
research or other services in order to ensure the continued receipt of research
or other services the Adviser believes is useful in its investment
decision-making process.
(b) The Client authorizes the Adviser, at the Adviser's discretion, to
bunch or aggregate orders for the Account with orders of other Clients and to
allocate the aggregate amount of the investment among accounts (including
accounts in which the Adviser, its affiliates and/or their personnel have
beneficial interests) in the manner in which the Adviser shall determine
appropriate and may, in accordance with applicable laws or rules of any exchange
or regulatory or self-regulatory organization, when placing orders with Xxxxxxx
Xxxxx or with unaffiliated brokers, give permission for Xxxxxxx Sachs or such
other brokers to trade along with or ahead of the Client order. When portfolio
decisions are made on an aggregated basis, the Adviser may in its discretion,
place a large order to purchase or sell a particular security for the Account
and the accounts of several other clients. Because of the prevailing trading
activity, it is frequently not possible to receive the same price or execution
on the entire volume of securities purchased or sold. When this occurs, the
various prices may be averaged and the Account will be charged or credited with
the average price; and the effect of the aggregation may operate on some
occasions to the Clients disadvantage. Although in such an instance the Client
will be charged the average price, the Adviser will make the information
regarding the actual transactions available to the Client upon the Client's
request. Neither the Adviser nor its affiliates, however, are required to bunch
or aggregate orders.
(c) Subject to the Adviser's execution obligations described in
Section 3(a), the Adviser is hereby authorized to execute so much or all of the
transactions for the Account with or through Xxxxxxx Xxxxx or any of Xxxxxxx
Sachs' affiliates, as agent or as principal, as the Adviser in its sole
discretion shall determine, and may execute transactions in which the Adviser,
its affiliates and/or their personnel have interests as described in Section 15
hereof. In all such dealings, Xxxxxxx Xxxxx and any of its affiliates shall be
authorized and entitled to retain any commissions, remuneration or profits which
may be made in such transactions and shall not be liable to account for the same
to the Client, and the Adviser's fees as set forth in Section 14 shall not be
abated thereby. The Adviser shall, with respect to transactions subject to
Section 11(a) of the U.S. Securities Exchange Act of 1934, as amended, and Rule
11a2-2(T) thereunder (or any similar rule which may be adopted in the future),
use its best efforts to provide the Client with information annually disclosing
commissions, if any, retained by the Adviser's affiliates in connection with
exchange transactions for the Account. The Adviser and its affiliates are also
authorized to execute agency and other cross transactions (collectively "Cross
transactions") for the Account. Cross transactions are inter-account
transactions which may be effected by the Adviser or its affiliates acting for
both the Account and the counterparty to the transaction. Cross transactions
enable the Adviser to purchase or sell a block of securities for the Account at
a set price and possibly avoid an unfavorable price movement that may be created
through entrance into the market with such purchase or sell order. The Adviser
believes that such transactions can provide meaningful benefits for its clients.
However, the Client should note that the Adviser has a potentially conflicting
division of loyalties and responsibilities regarding both parties to Cross
transactions and that Xxxxxxx Sachs, or any of its affiliates, if acting as
broker may receive commissions from both parties to such transactions. The
Client understands that its authority to the Adviser to execute Cross
transactions for the Account is terminable at will without
penalty, effective upon receipt by the Adviser of written notice from the
Client, and that the failure to terminate such authorization will result in its
continuation.
(d) The Adviser may cause the Client to enter into short-term
borrowings to facilitate execution and settlement of transactions in the
Account.
4. Account. The "Account" shall initially consist of the cash and
other assets of the Client listed in the schedule of assets separately furnished
in writing to the Adviser by the Client or otherwise delivered by the Client to
its Custodian (as hereinafter defined) and notified to the Adviser for
management hereunder, plus all investments, reinvestments and proceeds of the
sale thereof, including, without limitation, all interest, dividends and
appreciation on investments, less depreciation thereof and withdrawals
therefrom, and at the Client's direction may be comprised of one or more
sub-accounts (each a "Sub-Account") subject to different Investment Guidelines
attached hereto as Exhibit A and which may be subject to different fees as set
forth in Appendix B. To the extent that the Account is comprised of two or more
Sub-Accounts, the Client acknowledges that the amount of Client assets to be
included and managed in each Sub-Account and the Investment Guidelines
applicable thereto, have been prescribed by the Client. The Adviser has no
responsibility, unless otherwise expressly provided in the Investment
Guidelines, to allocate assets from one Sub-Account to another or advise the
Client regarding any such allocation from time to time. Cash and other assets
may, at the Adviser's discretion, be deemed part of the Account and the Client
shall be responsible for all transactions effected on the basis of such
assumption, beginning before immediately available funds (in the case of cash)
and Client ownership (in the case of securities) are received by the Custodian
(as defined below) in its account for the Client. The Client consents and
acknowledges that securities issued by The Xxxxxxx Xxxxx Group, Inc. or any of
its affiliates ("GS Securities") received as original or additional assets of
the account will be sold as soon as practical, unless Client directs the Adviser
to retain the GS Securities by executing the Retention Letter, attached hereto,
prior to funding date. Furthermore, Client acknowledges that it is the policy of
the Adviser not to give advice with respect to the purchase, sale, retention or
voting of GS Securities. The Client shall give reasonable written notice to the
Adviser of additions to, or withdrawals from, the Account.
5. Custody. The cash and assets of the Account shall be held by a
custodian (the "Custodian") appointed by the Client pursuant to a separate
custody agreement or by the Client itself. The Adviser and its affiliates shall
at no time have custody or physical control of the assets and cash in the
Account. The Adviser shall not be liable for any act or omission of the
Custodian. The Client shall instruct the Custodian to act, within the limits of
the Adviser's authority hereunder, in accordance with instructions from the
Adviser and shall deposit security within the limits provided hereunder as
directed by the Adviser. The Client shall instruct the Custodian to provide the
Adviser with such periodic reports concerning the status of the Account as the
Adviser may reasonably request from time to time. The Client will not change the
Custodian without giving the Adviser reasonable prior written notice of its
intention to do so together with the name and other relevant information with
respect to the new Custodian. The Client authorizes and directs the Custodian to
debit its custodial account maintained for Client for all remuneration and
expenses payable hereunder. In such a case, the Adviser will send a statement to
the Custodian indicating the amount of the fee to be paid to the Adviser
hereunder. The Client agrees that if the Custodian does not determine whether
the Adviser's fee is properly calculated, it will be the Client's responsibility
to undertake such verification. The Client will arrange for
the Custodian to send to the Client, no less than quarterly, a statement showing
all amounts disbursed from the Client's Custodian account to the Adviser.
6. Representations and Warranties of the Adviser. The Adviser hereby
represents and warrants to, and agrees with, the Client that this Agreement has
been duly authorized, executed and delivered by the Adviser and constitutes its
legal, valid and binding obligation and that the Adviser is registered under the
U.S. investment Advisers Act of 1940 as an "investment adviser."
7. Representations and Warranties; Certain Agreements of the Client.
(a) The Client hereby represents and warrants to, and agrees with, the Adviser
that (i) the Client is the sole beneficial owner of all assets in the Account
and that no restrictions exist on the transfer, sale or other disposition of any
of those assets and no option, lien, charge, security or encumbrance exists or
will, due to any act or omission of the Client, exist over any of the said
assets; (ii) this Agreement has been duly authorized, executed and delivered by
the Client and constitutes the Client's legal, valid and binding obligation and,
without limitation, all transactions in securities, futures, options, forwards
and other instruments and obligations of any kind relating thereto authorized by
the Client in the Investment Guidelines (collectively, "Obligations") are within
the Client's power, are duly authorized by the Client and, when duly entered
into with a counterparty, will be the legal, valid and binding Obligations of
the Client; (iii) the Client is not an officer, director or controlling person
of any corporation whose securities fall within the Investment Guidelines except
as may be set forth in writing by the Client to the Adviser as an addendum
hereto; (iv) without limitation, the transactions and agreements which the
Adviser enters on behalf of the Client with a counterparty pursuant to this
Agreement will not violate the constituent documents of, or any law, rule,
regulation, order, decree or judgment binding on the Client, or any contractual
restriction binding on or affecting the Client or its properties and no
governmental or other notice or consent b required in connection with the
execution, delivery or performance of this Agreement by the Client or of any
agreements governing or relating to Obligations; (v) the Client shall have full
responsibility for payment of all taxes due on capital or income halt or
collected for the Account; (vi) the Client will not deal or authorize anyone
other than the Adviser to deal with the Account; (vii) the Client is not
required to be registered as an Investment company under the Investment Company
Act of 1940; (viii) the Client has independently examined and understands the
tax, legal and accounting consequences related to the Account and the
transactions permitted under the Investment Guidelines; (ix) the Client is an
"accredited investor" as defined in Regulation D and a "Qualified Institutional
Buyer" as defined in Rule 144A under the U.S. Securities Act of 1933; (x) the
Client is not a commodity pool and the Client and any person with trading
authority over the Client's accounts is not required to be registered as a
Commodity Pool Operator under the Commodity Exchange Act (the "Act") or has
reviewed the registration requirements of the Commodity Exchange Act, as
amended, and the National Futures Association pertinent to commodity pool
operators and has determined that the Client is in compliance with such
requirements; and (xi) the Client is a "Qualified Eligible Person" as defined
under Commodity Futures Trading Commission ("CFTC") Regulation 4.7, it consents
to its account being an "exempt account" for purposes of such Regulation and it
acknowledges that it has not been furnished with a disclosure document prepared
in accordance with CFTC Regulation 4.31 because no such document is required
pursuant to CFTC Regulation 4.7. In addition, the Client acknowledges receipt of
Part II of GSAM's Form ADV at least 48
hours prior to entering into this Agreement and, to the extent that options are
approved Investments for the Account, the Client also acknowledges receipt of
the Characteristics and Risks of Standardized Options booklet. Furthermore, the
Client agrees to inform the Adviser promptly in writing if any representation,
warranty or agreement made by the Client in this Agreement is no longer true,
correct or complete or requires exception and/or modification to remain true.
8. Limitation of Liability; Indemnification. (a) To the extent
permitted by law, the Adviser shall not be liable for any expenses, losses,
damages, liabilities, demands, charges and claims of any kind or nature
whatsoever (including without limitation any legal expenses and boats and
expenses relating to investigating or defending any demands, charges and claims)
(collectively "Losses") by or with respect to the Account, except to the extent
that such Losses are actual losses of the Client proven with reasonable
certainly, are not speculative, are proven to have been fairly within the
contemplation of the parties as of the date hereof, and are the direct result of
an act or omission taken or omitted by the Adviser during the term of this
Agreement which constitutes gross negligence or willful misconduct under the
Agreement, and without limiting the generality of the foregoing, the Adviser
will not be liable for any indirect, special, incidental or consequential
damages or other losses (regardless of whether such damages or other losses were
reasonably foreseeable). Without limitation, the Adviser shall not be liable for
Losses resulting from or in any way arising out of (i) any action of the Client
or its previous advisers or its Custodian or other agents, following any
direction of the Client or the Adviser's failure to follow any unlawful or
unreasonable direction of the Client, (ii) force majeure or other events beyond
the control of the Adviser, including without limitation any failure, default or
delay in performance resulting from computer or other electronic or mechanical
equipment failure, unauthorized access, strikes, failure of common carrier or
utility systems, severe weather or breakdown in communications not reasonably
within the control of the Adviser or other causes commonly known as "acts of
god", whether or not any such cause was reasonably foreseeable, or (iii) general
market conditions unrelated to any violation of this Agreement by the Adviser.
The Adviser gives no warranty as to the performance or profitability of the
Account or any part thereof, nor any guarantee that the investment objectives,
expectations or targets described in this Agreement and/or in the Investment
Guidelines or any Client Policy Statements will be achieved, including without
limitation any risk control, risk management or return objectives, expectations
or targets. The Account may suffer lose of principal, and income, if any, may
fluctuate. The value of Account investments may be affected by a variety of
factors, including, but not limited to, economic and political developments,
interest rates and issuer-specific xxxxx, market conditions, sector positioning,
and other factors. The Adviser shall not be responsible for the performance by
any person not affiliated with the Adviser of such person's commercial
obligations in executing, completing or satisfying such person's obligations.
The Adviser shall not be responsible for any Losses incurred after termination
of the Account. The Adviser shall have no responsibility whatsoever for the
management of any other assets of the Client and shall incur no liability for
any Losses which may result from the management of such other assets. U.S.
federal and state securities laws impose liabilities under certain circumstances
on persons who act in good faith; nothing herein shall constitute a waiver or
limitation of any rights which the Client may have, if any, under any applicable
U.S. federal and state securities laws. The rights of the Client under this
clause (a) shall be the exclusive remedy of the Client for any breach of the
Adviser under this Agreement.
(b) The Client shall reimburse, indemnify and hold harmless the
Adviser, its affiliates and their partners, directors, officers and employees
and any person controlled by or controlling the Adviser ("indemnities") for,
from and against any and all Losses (i) relating to this Agreement or the
Account arising out of any misrepresentation or act or omission or alleged act
or omission on the part of the Client or previous advisers or the Custodian or
any of their agents; or (ii) arising out of or relating to any demand, charge or
claim in respect of an indemnitee's acts, omissions, transactions, duties,
obligations or responsibilities arising pursuant to this Agreement, unless (y) a
court with appropriate jurisdiction shall have determined by a final judgment
which is not subject to appeal that such indemnitee is liable in respect of the
demands, charges and claims referred to in this subparagraph or (z) such
indemnitee shall have settled such demands, charges and claims without the
Client's consent.
9. Directions to the Adviser. All directions by or on behalf of the
Client to the Adviser shall be in writing signed either by the Client or by an
authorized agent of the Client or, if by telephone, confirmed in writing. For
this purpose, the term in writing, shall include directions given by facsimile.
A list of persons authorized to give instructions to the Adviser hereunder with
specimen signatures, is set out in Appendix C to this Agreement. The Client may
revise the list of authorized persons from time to time by sending the Adviser a
revised list which has been certified either by the Client or by a duty
authorized agent of the Client. The Adviser shall incur no liability whatsoever
in relying upon any direction from, or document signed by, any person reasonably
believed by it to be authorized to give or sign the same, whether or not the
authority of such person is then effective. The Adviser shall be under no duty
to make any investigation or inquiry as to any statement contained in any
writing and may accept the same as conclusive evidence of the truth and accuracy
of the statements therein contained. Directions given by the Client to the
Adviser hereunder shall be effective only upon actual receipt by the Adviser and
shall be acknowledged by the Adviser through its actions hereunder only, unless
the Client is advised by the Adviser otherwise.
10. Reports. The Adviser shall provide the Client with reports
containing the valuations and status of the Account on a quarterly basis, or
otherwise as the Client and the Adviser may from time to time agree. Performance
reporting shall begin as of the business day one full month following the date
on which cash or securities are deemed part of the Account or Sub-Account as
provided in Section 4, or on such earlier date in the Adviser's reasonable
discretion. Valuation levels for the assets listed in the Account statements
will reflect the Adviser's good faith effort to ascertain fair market levels
(including accrued income, if any) for the securities and other assets in the
Account based on pricing and valuation information believed by the Adviser to be
reliable for round lot sizes. These valuation levels may not be realized by the
Account upon liquidation. Market conditions and transaction size will affect
liquidity and price received upon liquidation. Then current exchange rates will
be applied in valuing holdings in foreign currency. The Client agrees that the
Adviser is not obligated to send to the Client copies of any trade confirmations
it receives.
11. Exercise of Membership Rights; Proxies; Tender Offers: Class
Actions. Subject to any other written instructions of the Client or as otherwise
stated herein, the Adviser is hereby appointed the Client's agent and
attorney-in-fact to exercise in its discretion all rights and perform all duties
which may be exercisable in relation to any assets held or that were held in the
Account with respect to the right to vote (or in its discretion, refrain from
voting), tender,
exchange, endorse, transfer. or deliver any securities in the Account, to
participate in or consent to any distribution, plan of reorganization, creditors
committee, merger, combination, consolidation, liquidation, underwriting, or
similar plan with reference to such securities; and to execute and bind the
Client and Account in waivers, consents, covenants and indemnification related
thereto. Notwithstanding the above, the Client or its Custodian, and not the
Adviser, shall make any and all filings in connection with any securities
litigation or class action lawsuits involving securities held or that were held
in the Account. Except as may be explicitly provided by applicable law, the
Adviser shall not incur any liability to the Client by reason of any exercise
of, or failure to exercise, any such discretion and shall not incur any
liability for any failure arising from an act or omission of a person other than
the Adviser. The Client understands that the Adviser establishes from time to
time guidelines for the voting of proxies and may employ the services of a proxy
voting service to exercise proxies in accordance with the Adviser's guidelines.
The Adviser is authorized to hire at the Client's expense any agents (including
attorneys) the Adviser deems appropriate in connection with and in order to
provide services related to matters set forth in this paragraph and the Client
agrees to pay for such agents in addition to the fees set forth in this
Agreement.
12. Non-Assignability. No assignment (as such term is defined under
the U.S. Investment Advisers Act of 1940) of this Agreement may be made by
either party to the Agreement except with the written consent of the other
party. The Client will be notified by the Adviser of a change in general
partners of the Adviser within a reasonable time thereafter.
13. Confidential Information. (a) The Adviser and the Client each
agree not to disclose each other's name to the public or to use each others name
without the prior written approval of the other party except that the Client
hereby consents to the disclosure by the Adviser of the Client's name to (i)
brokers and dealers (including any futures brokers and futures commission
merchants if futures are permitted by the Investment Guidelines) whether
executing or clearing to effectuate the Adviser's trading activities on behalf
of the Client, (ii) consultants in connection with the completion of
questionnaires and informational surveys, and (iii) prospective clients of the
Adviser as part of a representative client list. The Client agrees and
acknowledges that confidential information and advice furnished by the Adviser
to the Client (including without limitation information evidencing the Adviser's
expertise, investment strategies or trading activities) has been developed by
the Adviser through the application of methods and standards of judgment and
through the expenditure of considerable work, time and money and is the
exclusive and proprietary intellectual property of the Adviser which (i) shall
be treated as confidential by the Client, (ii) shall not be used by the Client
as the basis for effecting transactions in any accounts other than the Account,
(iii) shall not be used for any purpose other than Client's, or Client's
consultant's, analysis of the performance of the Adviser, and (iv) shall not be
disclosed, directly or indirectly, to third parties by the Client except (in the
case of (i) through (iv)) with the prior written consent of the Adviser or as
required by law. Notwithstanding the above, confidential information may be
disclosed if (i) requested by or through, or related to a judicial,
administrative, governmental or self-regulatory organization process,
investigation, inquiry or proceeding, or is otherwise legally required, (ii)
required in order for each party to carry out its responsibilities hereunder, or
(iii) permitted upon the prior written consent of the other party.
(b) Notwithstanding anything herein to the contrary, the Client (and
each of the Client's employees, representatives or other agents) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of any transaction or potential transaction in the Client's Account
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Client relating to such tax treatment and tax structure.
However, any information relating to the tax treatment or tax structure shall
remain subject to the confidentiality provisions hereof (and the foregoing
sentence shall not apply) to the extent reasonably necessary to enable the
parties hereto, their respective affiliates, and their respective affiliates'
directors and employees to comply with applicable securities laws. For this
purpose, "tax structure" means any facts relevant to the federal income tax
treatment of any such transaction or potential transaction but does not include
information relating to the identity of the issuer of any securities bought,
sold or transferred in any such transaction, or to be bought, sold or
transferred in any such potential transaction, the issuer of any assets
underlying any such securities, or any of their respective affiliates that are
offering any such securities.
14. Remuneration; Expenses. For its discretionary advisory services
hereunder, the Adviser shall be entitled to the fees and terms of payment as set
forth in Appendix B to this Agreement. The Adviser may, at its discretion, make
payments out of such fees to any affiliate from which the Adviser obtains
assistance. Furthermore, the Client acknowledges and agrees that, if Client has
been referred to the Adviser by an employee of the Adviser or any of its
affiliates, the Adviser may, at its discretion, make payments out of such fees
directly or indirectly to said employee, and that such persons may also receive
commissions or commission equivalents related to brokerage transactions effected
by Xxxxxxx, Xxxxx & Co. and its affiliates as compensation for such referral or
for services provided to the Client in relation to the Account. Custodial fees,
if any, are charged separately by the Custodian for the Account and are not
included in Appendix B unless specifically set forth therein. The Client shall
be responsible for payment of brokerage commissions, transfer fees, registration
costs, taxes and other similar costs and transaction-related expenses and fees
arising out of transactions in the Account as well as any expenses described in
Section 11, and the Client hereby authorizes the Adviser to incur such expenses
for the Account.
15. Services to Other Clients; Certain Affiliated Activities. (a) The
relationship between the Adviser and the Client is as described in this
Agreement and permits, expressly as set forth herein, the Adviser and its
affiliates to act in multiple capacities (i.e., act as principal or agent in
addition to acting on behalf of Client), and, subject only to the Adviser's
execution obligations set forth in Section 3 hereof, to effect transactions with
or for the Account in instances in which the Adviser and its affiliates may have
multiple interests. In this regard the Client understands that the Adviser is
part of a worldwide, full-service investment banking, broker-dealer, asset
management organization, and as such, the Adviser and its affiliates (the
"Firm") and their managing directors, directors, officers and employees
("Personnel") may have multiple advisory, transactional and financial and other
interests in securities, instruments and companies that may be purchased, sold
or held by the Adviser for the Account. The Firm may act as adviser to clients
in investment banking, financial advisory, asset management and other capacities
in advisory or other assignments of all types including those related to
instruments that may be purchased, sold or held in the Account and the Firm may
issue, or be engaged as underwriter for the issuer of, instruments that the
Account may purchase,
sell or hold. At times, these activities may cause departments of the Firm to
give advice to clients that may cause these clients to take actions adverse to
the interests of the Client. The Firm and Personnel may act in a proprietary
capacity with long or short positions, in instruments of all types, including
those that the Account may purchase, sell, or hold. Such activities could affect
the prices and availability of the securities and instruments that the Adviser
seeks to buy or sell for the Account, which could adversely impact the
performance of the Account. Personnel may serve as directors of companies the
securities of which the Account may purchase, sell, or hold. The Firm and
Personnel may give advice, and take action, with respect to any of the Firm's
clients or proprietary accounts that may differ from the advice given, or may
involve a different timing or nature of action taken, than with respect to any
one or all of the Adviser's advisory accounts, and effect transactions for such
clients or proprietary accounts at prices or rates that may be more or less
favorable than for the Account. The Firm and Personnel may obtain and keep any
profits, commissions and fees accruing to them in connection with their
activities as agent or principal in transactions for the Account and other
activities for themselves and other clients and their own accounts and the
Adviser's fees as set forth in this Agreement shall not be abated thereby.
(b) The Client understands that the ability of the Adviser and its
affiliates to effect and/or recommend transactions may be restricted by
applicable regulatory requirements in the United States, United Kingdom or
elsewhere and/or their internal policies designed to comply with such
requirements. As a result, there may be periods when the Adviser will not
initiate or recommend certain types of transactions in certain investments when
the Adviser or its affiliates are performing investment banking or other
services or when aggregated position limits have been reached and the Client
will not be advised of that fact. Without limitation, when Xxxxxxx Sachs or an
affiliate is engaged in an underwriting or other distribution of securities of a
company, the Adviser may in certain circumstances be prohibited from purchasing
or recommending the purchase of certain securities of that company for its
clients. Without limitation, the Adviser and its affiliates may also be
prohibited from effecting transactions for the Account with or through its
affiliates, from acting as agent for another customer as well as the Client in
respect of a particular transaction, or from acting as the counterparty on a
transaction with the Client. If not prohibited, the Adviser is nonetheless not
required to effect transactions for the Account with or through its affiliates
and other clients or in instances in which the Adviser or its affiliates have
multiple interests.
(c) The Client should be aware that from time to time at the Adviser's
discretion, advisory Personnel may consult with Personnel in proprietary trading
or other areas of the Firm or form investment policy committees comprised of
such Firm Personnel, and the performance of Firm Personnel obligations related
to their consultation with the Adviser could conflict with their areas of
primary responsibility within the Firm. In connection with their activities with
the Adviser, such Firm Personnel may receive information regarding the Adviser's
proposed investment activities which is not generally available to the public.
However, there will be no obligation on the part of such Firm Personnel to make
available for use by advisory accounts any information or strategies known to
them or developed in connection with their client, proprietary or other
activities. In addition, the Firm will be under no obligation to make available
any research or analysis prior to its public dissemination. Furthermore, the
Firm shall have no obligation to recommend for purchase or sale by advisory
accounts any security that the Firm or Personnel may purchase for themselves or
for any other clients. The Firm shall have no obligation
to seek to obtain any material non-public ("inside") information about any
issuer of securities, and will not effect transactions for advisory accounts on
the basis of any inside information as may come into its possession.
16. Duration and Termination. This Agreement shall continue in full
force and effect until terminated in writing as set forth below. The Adviser or
the Client may terminate the Agreement at any time upon 30 days' written notice
without penalty or other additional payment except that the Client will pay the
fees of the Adviser referred to in Section 11 and Section 14 of the Agreement
prorated to the date upon which all trades have settled and all positions have
been liquidated or otherwise transferred upon order of the Client. Termination
of the Adviser's discretionary authority hereunder to supervise and direct the
investment and reinvestment of assets in the Account shall be effective
immediately upon one party's receipt of written notice of termination from the
other party provided that the Client shall honor any trades entered but not
settled before the date of any such termination and that, upon such termination,
except as the Client may otherwise direct, the Account will be liquidated by the
Adviser in an orderly manner. Sections 6, 7, 8,13,14,15,16,17, 18 and 20 shall
survive the termination of this Agreement.
17. Notices. (a) Except as otherwise specifically provided herein, all
notices shall be deemed duly given when sent in writing to the appropriate party
at the addresses appearing at the end of this Agreement for each signatory
hereto, or to such other address as shall be notified in writing by that party
to the other party from time to time or, if sent by facsimile transmission, upon
transmission.
(b) The Client agrees that it will be notified only of trading errors
by the Adviser that in the Adviser's reasonable view, result in a loss as a
result of a direct violation of the Investment Guidelines or fiduciary
responsibility but that no other notice of errors is required.
18. Entire Agreement; Amendment, Etc. This Agreement, including the
Appendices attached hereto, states the entire agreement of the parties with
respect to management of the Account and may not be amended except by a writing
signed by the parties. If any provision or any part of a provision of this
Agreement shall be found to be void or unenforceable, it shall not affect the
remaining part which shall remain in full force and effect. All terms used but
not defined in the Appendices shall have the meaning ascribed to herein.
19. Effective Date. (a) This Agreement shall become effective on the
day and year first written above.
(b) The Adviser shall commence its discretionary investment management
activities, as contemplated under the Agreement, on the later of the date of (i)
execution of this Agreement by each of the parties; (ii) either the receipt by
the Adviser of confirmation in writing from the Custodian that cleared funds are
available to the Adviser for investment on behalf of the Client or that assets
initially comprising the Account have been delivered to the Custodian and are
available for disposition by the Adviser; or (iii) such other date agreed in
writing between the Adviser and the Client.
20. Governing Law. This Agreement shall be governed by, and construed
in accordance with the law of New York. The Client acknowledges and agrees
however that, to the extent that the Adviser delegates power and authority
hereunder to an Affiliate Adviser, the laws and regulations applicable to such
Affiliate Adviser's activities will apply to the Affiliate Adviser's activities
for the Account. Nothing herein shall constitute a waiver or limitation of any
rights which the Client may have, if any, under any applicable U.S. federal and
state securities laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly appointed agents so as to be effective on the day,
month and year first above written.
XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Notice Address: Xxxxxxx Sachs Asset Management, L.P.
00 Xxx Xxxx
Xxx Xxxx Xxx Xxxx 00000
Attention: Chief Executive Officer
Fax: 000-000-0000
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION ("CFTC")
IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS ACCOUNT DOCUMENT
IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE CFTC. THE CFTC DOES NOT
PASS UPON THE MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY
OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE CFTC HAS
NOT REVIEWED OR APPROVED THE TRADING PROGRAM ADOPTED HEREUNDER OR ANY BROCHURE
OR ACCOUNT DOCUMENT.
[CLIENT]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Notice Address:
---------------------
Mailing Address:
Suite 1790
00 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx, XX 00, Xxxxxxx
