INVESTMENT MANAGEMENT AGREEMENT
Exhibit 2(g)(1)
INVESTMENT MANAGEMENT AGREEMENT to be effective as of the 25th day of August, 2010
between X.X. XXXXXX ACCESS MULTI-STRATEGY FUND, L.L.C., a Delaware limited liability company (the
“Fund”), and X.X. XXXXXX INVESMENT MANAGEMENT, INC., a Delaware corporation (the “Investment
Manager”).
WHEREAS, the Fund has been organized for the purpose of allocating discrete pools of its
capital among portfolio managers (the “Portfolio Managers”) that invest through investment pools or
managed accounts in a variety of markets and that employ, as a group, a range of investment
techniques and strategies, as described in the Private Placement Memorandum of the Fund, as it may
be amended and supplemented from time to time (the “Private Placement Memorandum”), and the Fund
desires to avail itself of the experience, sources of information, advice, assistance and
facilities of the Investment Manager, and desires to have the Investment Manager perform for it
various investment management services;
WHEREAS, the Investment Manager is willing to perform such services under the terms and
conditions hereinafter set forth;
WHEREAS, the Investment Manager has received a copy of the Amended and Restated Limited
Liability Company Agreement (“LLC Agreement”) of the Fund, in effect as of the date of this
Agreement, and the Private Placement Memorandum;
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good
and valuable consideration the receipt whereof is hereby acknowledged, the parties hereto agree as
follows:
1. Appointment of the Investment Manager. The Investment Manager will act as
investment manager to the Fund and will be responsible for all investment decisions, either
directly or indirectly through the selection and monitoring of the Portfolio Managers through which
the assets of the Fund will be invested. The Investment Manager undertakes to give the Fund the
benefit of its best judgment, efforts and facilities in rendering its services.
2. Authority of the Investment Manager. Subject to Section 5, and in connection with
its obligations under this Agreement, the Investment Manager will have the authority for and in the
name of the Fund (including, to the extent applicable, any subsidiary of the Fund) to manage the
investment and reinvestment of the assets of the Fund and to continuously review, supervise and
administer the investment program of the Fund subject to oversight by the Fund’s Board of Directors
(the “Board of Directors”) and in accordance with the investment objective and policies described
in the Private Placement Memorandum. Without limiting the generality of the foregoing, the
Investment Manager is specifically authorized to:
(a) invest discrete portions of the Fund’s assets (which may constitute, in the
aggregate, all of the Fund’s assets) in unregistered investment funds or other investment
vehicles and registered investment companies (“Investment Funds”) that are managed by
Portfolio Managers, which investments shall be subject in each case to the terms and
conditions of the respective governing documents utilized by each Portfolio Manager;
(b) invest the Fund’s assets in any type of instrument it deems appropriate for the
purpose of fulfilling the investment objective of the Fund as described in the Private
Placement Memorandum;
(c) invest the cash balances of the Fund in any instruments it deems appropriate and to
reinvest any income earned thereon in accordance with the investment program of the Fund;
(d) borrow or raise monies, on behalf of the Fund, and, from time to time issue,
accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments and evidences of indebtedness,
and secure the payment of such or other obligations by mortgage upon, or hypothecation or
pledge of, all or part of the property of the Fund,
whether at the time owned or thereafter acquired, when deemed appropriate by the Investment
Manager, including, without limitation, to meet repurchases that would otherwise result in
the premature liquidation of investments;
(e) open, maintain and close bank accounts and brokerage accounts in the name of the
Fund and draw checks or other orders for the payment of monies in respect of those accounts,
and issue instructions and authorizations to brokers regarding securities and/or money
therein, subject to the oversight of the Board of Directors;
(f) do any and all acts on behalf of the Fund, and exercise all rights of the Fund,
with respect to its interest in any person, firm, corporation or other entity, including,
without limitation, the voting or abstention from voting of limited liability company
interests, limited partnership interests, shares or other interests of the Investment Funds
and Sub-Funds, participation in arrangements with creditors, the institution and settlement
or compromise of suits and administrative proceedings and other like or similar matters;
(g) advise the Board of Directors in connection with any proposed changes to the Fund’s
investment guidelines, policies or strategies from time to time in order to meet the Fund’s
investment objective;
(h) supply the Fund’s administrator, custodian, escrow agent, or other service
providers to the Fund, with such information and instructions as may be necessary to enable
such person or persons to perform their duties in accordance with the applicable agreements;
(i) authorize any employee or other agent of the Investment Manager or agent or
employee of the Fund to act for and on behalf of the Fund in all matters incidental to the
foregoing; and
(j) engage personnel, whether part-time or full-time, attorneys and independent
accountants or such other persons as the Investment Manager may deem necessary or advisable.
Subject to Section 3(b) of this Agreement, the Investment Manager may be assisted in
performing its services hereunder by sub-managers or consultants that it selects.
3. Policies of the Fund.
(a) The activities engaged in by the Investment Manager on behalf of the Fund shall be
subject to the policies and control of the Board of Directors.
(b) The selection of Subadvisers by the Investment Manager will be subject to the
approval by the Board of Directors in accordance with requirements of the 1940 Act and a
vote of a majority of the outstanding voting securities of the Fund unless the Fund acts in
reliance on exemptive, interpretive or other relief granted by the Securities and Exchange
Commission (the “SEC”) from the provisions of the 1940 Act requiring such approval by
security holders.
(c) The Fund and the Investment Manager agree to furnish to each other current
prospectuses, proxy statements, reports to members or shareholders, true and complete copies
of their financial statements, and such other information with regard to their affairs as
each may reasonably request. The Investment Manager will provide the Fund with records
concerning the Investment Manager’s activities that the Fund is required to maintain and to
render regular reports to the Fund’s officers and the Board of Directors concerning the
Investment Manager’s discharge of its responsibilities.
4. Status of the Investment Manager.
(a) The Investment Manager will for all purposes be an independent contractor and not
an employee of the Fund, nor will anything in this Agreement be construed as making the Fund
a partner or
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co-venturer with the Investment Manager or any of its affiliates or clients. The Investment
Manager shall have no authority to act for, represent, bind or obligate the Fund except as
specifically provided in this Agreement or as specifically approved by the Board of
Directors.
(b) The Fund authorizes affiliates of the Investment Manager to provide services
relating to the investment or trading of securities for the Fund and to retain compensation
in connection with the transactions, provided that any such affiliate discloses, at
least annually, and as may be required under the Fund’s Rule 17e-1 Procedures, as amended
from time to time with notice to the Investment Manager (the “Procedures”), the amount of
the commission it has received and that the amount of such compensation is permissible under
the Procedures. This authorization is executed and delivered pursuant to Section 11(a) of
the Securities Exchange Act of 1934 and Rule 11a2-2(T) under that Act.
5. Conduct of the Investment Manager. All actions engaged in by the Investment
Manager under this Agreement will at all times conform to and be in accordance with the
requirements imposed by:
(a) any provisions of applicable law;
(b) provisions of the LLC Agreement as such LLC Agreement may be amended, supplemented
or revised from time to time, provided that the Investment Manager will not be obligated to
follow any amendment to the LLC Agreement that increases its obligations, responsibilities
or liabilities until it has received actual notice of the amendment; and
(c) such policies and procedures as may be adopted from time to time by the Board of
Directors, provided that the Investment Manager will not be obligated to follow any such
policies or procedures that increases its obligations, responsibilities or liabilities until
it has received actual notice of the policy or procedure.
6. Reimbursement of Legal and Other Professional Expenses. The Investment Manager, in
its discretion, may rely upon the advice of legal counsel, independent accountants and other
professional advisors to the Fund in connection with the performance of its activities on behalf of
the Fund under this Agreement, and the Fund shall bear full responsibility therefor and the expense
of any fees and disbursements arising from the use of such professional advisors.
7. Fees.
(a) The Fund shall pay the Investment Manager as full compensation for the services
performed by the Investment Manager a fixed monthly fee payable monthly equal to 0.1042%
(approximately 1.25% on an annualized basis) (the “Management Fee”) of the month-end capital
account balance of each member of the Fund (each, a “Member”, and collectively, the
“Members”), before giving effect to repurchases, repurchase fees (if any) or the Incentive
Allocation, and after giving effect to other expenses (all as computed pursuant to the LLC
Agreement). The Management Fee shall be appropriately prorated in the event that this
Agreement becomes effective as of a date other than the beginning of a month or terminates
as of a date other than the end of a month.
(b) Payment of the Management Fee shall be made in arrears within 20 days after the end
of each month. Subject to the 1940 Act, the Investment Manager, in its discretion, may
remit to any Member all or a portion of its past profits earned with respect to the Capital
Account of that Member. A portion of the Management Fee may be paid by, or at the direction
of, the Investment Manager to Placement Agents that assist in the placement of Interests and
may be affiliated with the Investment Manager, and any such payments will be in addition to
the direct placement fees paid by investors.
(c) Each payment for services to the Investment Manager shall be accompanied by a
report of the Fund, prepared either by the Fund’s administrator or by an established firm of
independent public accountants, which shows the amount properly payable to the Investment
Manager under this Agreement, and the manner of computation thereof.
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8. Expenses of the Fund. The Fund will pay or assume all ordinary operating expenses
of the Fund in accordance with the terms of the LLC Agreement, other than expenses assumed by the
Investment Manager.
9. Expenses of the Investment Manager. The Investment Manager will bear all of its
own costs incurred in providing investment advisory services to the Fund, including travel and
other expenses related to the selection and monitoring of Portfolio Managers, as well as its other
ordinary operating expenses.
10. Representations and Warranties.
(a) The Investment Manager represents and warrants that: (i) it has obtained all
applicable licenses, permits, registrations, memberships and approvals that may be required
in order to serve in its designated capacities with respect to this Agreement, and will
continue to keep current those licenses, permits, registrations, memberships and approvals
for so long as this Agreement is in effect; (ii) it is in material compliance with all
requirements of applicable federal securities and commodities laws, regulations and rules,
including the regulations and rules of the SEC, the CFTC and all other laws, rules or
regulations applicable to it or its activities; (iii) it will immediately notify the Fund of
the occurrence of any event that would disqualify it from serving in its designated
capacities with respect to this Agreement; (iv) it has the capacity and authority to perform
its obligations under this Agreement; (v) this Agreement has been duly and validly
authorized, executed and delivered on behalf of the Investment Manager and is a valid and
binding agreement of the Investment Manager enforceable in accordance with its terms; and
(vi) entry into this Agreement will not breach or cause to be breached any undertaking,
agreement, contract, statute, rule or regulation to which it is a party or by which it is
bound which would materially limit or affect the performance of its duties under this
Agreement.
(b) The Fund represents and warrants that: (i) it is a limited liability company duly
formed and validly existing under the laws of the State of Delaware and has full power and
authority to perform its obligations under this Agreement; (ii) it has the capacity and
authority to enter into this Agreement; (iii) this Agreement has been duly and validly
authorized, executed and delivered on behalf of the Fund and is a valid and binding
agreement of the Fund enforceable in accordance with its terms; and (iv) entry into this
Agreement will not breach or cause to be breached any undertaking, agreement, contract,
statute, rule or regulation to which it is a party or by which it is bound that would
materially limit or affect the performance of its duties under this Agreement.
11. Liability of Investment Manager. In the absence of (a) willful misfeasance, bad
faith or negligence on the part of the Investment Manager in performance of its obligations and
duties under this Agreement, (b) reckless disregard by the Investment Manager of its obligations
and duties under this Agreement, or (c) a loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services (in which case any award of damages will be
limited to the period and the amount set out in Section 36(b)(3) of the 1940 Act), the Investment
Manager will not be subject to any liability whatsoever to the Fund, or to any Member of the Fund
for any error of judgment, mistake of law or any other act or omission in the course of, or
connected with, rendering services under this Agreement including, without limitation, for any
losses that may be sustained in connection with the purchase, holding, redemption or sale of any
security on behalf of the Fund.
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12. Indemnification.
(a) To the fullest extent permitted by law, the Fund will, subject to Section 12(c) of
this Agreement, indemnify the Investment Manager (including for this purpose each officer,
director, member, partner, principal, employee or agent of, or any person who controls, is
controlled by or is under common control with, the Investment Manager, and their respective
executors, heirs, assigns, successors or other legal representatives) (each such person
being referred to as an “indemnitee”) against all losses, claims, damages, liabilities,
costs and expenses (“Losses,” and individually, a “Loss”) arising by reason of being or
having been Investment Manager to the Fund, or the past or present performance of services
to the Fund in accordance with this Agreement by the indemnitee, except to the extent that
the Loss has been determined in a final judicial decision on the merits from which no
further right of appeal may be taken in any action, suit, investigation or other proceeding,
whether civil or criminal (“Action”), to have been incurred or suffered by the indemnitee by
reason of willful misfeasance, bad faith, negligence, or reckless disregard of the duties
involved in the conduct of the indemnitee’s office (“disabling conduct”). Losses include,
but are not limited to, amounts paid in satisfaction of judgments, in compromise, or as
fines or penalties, and counsel fees and expenses incurred in connection with the defense or
disposition of any Action before any judicial, arbitral, administrative or legislative body,
in which the indemnitee may be or may have been involved as a party or otherwise, or with
which the indemnitee may be or may have been threatened, while in office or thereafter. The
rights of indemnification provided under this Section 12 are not to be construed so as to
provide for indemnification of an indemnitee for any liability (including liability under
U.S. federal securities laws that, under certain circumstances, impose liability even on
persons that act in good faith) to the extent (but only to the extent) that indemnification
of such liability would be in violation of applicable law, but will be construed so as to
effectuate the applicable provisions of this Section 12.
(b) Expenses, including counsel fees and expenses, incurred by any indemnitee (but
excluding amounts paid in satisfaction of judgments, in compromise, or as fines or
penalties) may be paid from time to time by the Fund in advance of the final disposition of
any Action upon receipt of an undertaking by or on behalf of the indemnitee to repay to the
Fund amounts paid if a determination is made that indemnification of the expenses is not
authorized under Section 12(a) of this Agreement, so long as (1) the indemnitee provides
security for the undertaking, (2) the Fund is insured by or on behalf of the indemnitee
against Losses arising by reason of the indemnitee’s failure to fulfill his, her or its
undertaking, or (3) a majority of the directors (each, a “Director,” and collectively, the
“Directors”) of the Fund who are not “interested persons” (as that term is defined in the
1940 Act) (“Independent Directors”) (excluding any Director who is either seeking
advancement of expenses under this Agreement or is or has been a party to any other Action
involving claims similar to those involved in the Action giving rise to a claim for
advancement of expenses under this Agreement) or independent legal counsel in a written
opinion determines, based on a review of readily available facts (as opposed to a full
trial-type inquiry), that reason exists to believe that the indemnitee ultimately will be
entitled to indemnification.
(c) With respect to the disposition of any Action (whether by a compromise payment,
pursuant to a consent decree or otherwise) without a final decision on the merits by a
court, or by any other body before which the Action has been brought, that an indemnitee was
liable to the Fund or its Members by reason of disabling conduct, indemnification will be
provided in accordance with Section 12(a) of this Agreement if (1) the indemnification is
approved as in the best interests of the Fund by a majority of the Independent Directors
(excluding any Director who is either seeking indemnification under this Agreement or is or
has been a party to any other Action involving claims similar to those involved in the
Action giving rise to a claim for indemnification under this Agreement) upon a
determination, based upon a review of readily available facts (as opposed to a full
trial-type inquiry), that the indemnitee acted in good faith and in the reasonable belief
that the actions were in the best interests of the Fund and that the indemnitee is not
liable to the Fund or its Members by reason of disabling conduct, or (2) the Directors
secure a written opinion of independent legal counsel, based upon a review of readily
available facts (as opposed to a full trial-type inquiry), to the effect that
indemnification would not protect the indemnitee against any liability to the Fund or its
Members to which the indemnitee would otherwise be subject by reason of disabling conduct.
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(d) Any indemnification or advancement of expenses made in accordance with this Section
12 will not prevent the recovery from any indemnitee of any amount if the indemnitee
subsequently is determined in a final judicial decision on the merits in any Action
involving the liability or expense that gave rise to the indemnification or advancement of
expenses to be liable to the Fund or its Members by reason of disabling conduct. In any
suit brought by an indemnitee to enforce a right to indemnification under this Section 12,
it will be a defense that the indemnitee has not met the applicable standard of conduct
described in this Section 12. In any suit in the name of the Fund to recover any
indemnification or advancement of expenses made in accordance with this Section 12 the Fund
will be entitled to recover the expenses upon a final adjudication from which no further
right of appeal may be taken. In any suit brought to enforce a right to indemnification or
to recover any indemnification or advancement of expenses made in accordance with this
Section 12, the burden of proving that the indemnitee is not entitled to be indemnified, or
to any indemnification or advancement of expenses, under this Section 12 will be on the Fund
(or on any Member acting derivatively or otherwise on behalf of the Fund or its Members).
(e) An indemnitee may not satisfy any right of indemnification or advancement of
expenses granted in this Section 12 or to which he, she or it may otherwise be entitled
except out of the assets of the Fund, and no Member will be personally liable with respect
to any such claim for indemnification or advancement of expenses.
(f) The rights of indemnification provided in this Section 12 will not be exclusive of
or affect any other rights to which any person may be entitled by contract or otherwise
under law. Nothing contained in this Section 12 will affect the power of the Fund to
purchase and maintain liability insurance on behalf of the Investment Manager or any other
indemnitee.
13. Activities of the Investment Manager and Others. The Investment Manager and its
affiliates may engage, simultaneously with their investment management activities on behalf of the
Fund, in other businesses and make investments for their own accounts, and may render services
similar to those described in this Agreement for other individuals, companies, trusts or persons,
and shall not by reason of such engaging in other businesses, making such investments or rendering
of services for others be deemed to be acting in conflict with the interests of the Fund.
Notwithstanding the foregoing, the Investment Manager shall devote sufficient time to the
management of the Fund’s assets as is necessary to supervise the investment activities of the Fund.
14. Permissible Interests. Subject to and in accordance with the LLC Agreement and
the organizational documents of the Investment Manager (the “Investment Manager Organizational
Documents”), (a) Directors (other than those identified as “disinterested” in the Fund’s Private
Placement Memorandum), officers, employees, agents and Members of the Fund are or may be interested
in the Investment Manager (or any successor thereof) as directors, officers, agents, shareholders
or otherwise; (b) directors, officers, employees, agents and shareholders of the Investment Manager
are or may be interested in the Fund as Directors (other than those identified as “disinterested”
in the Fund’s Private Placement Memorandum), officers, Members or otherwise; and (c) the Investment
Manager (or any successor) is or may be interested in the Fund as a Member or otherwise. The
effect of any such interrelationships will be governed by the LLC Agreement, the Investment Manager
Organizational Documents, the provisions of the 1940 Act and the provisions of the Investment
Advisers Act of 1940.
15. Term. This Agreement will become effective as of the date first written above and
will continue for an initial two-year term, and will continue thereafter so long as the continuance
is specifically approved at least annually in conformity with the requirements of the 1940 Act;
provided however, that if the Members of the Fund fail to approve the Agreement as
provided in this Section 15, the Investment Manager may continue to serve in such capacity in the
manner and to the extent permitted by the 1940 Act and the rules under that Act. This Agreement
may be terminated by the Fund at any time, without the payment of any penalty, by vote of a
majority of the Board of Directors or by vote of a majority of the outstanding voting securities of
the Fund on 60 days’ written notice to the Investment Manager. This Agreement may be terminated by
the Investment Manager at any time, without the payment of any penalty, upon 60 days’ written
notice to the Fund.
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16. Use of Name. The Fund acknowledges that it adopted its name through the
permission of the Investment Manager. The Investment Manager hereby consents to the non-exclusive
use by the Fund of “X.X. Xxxxxx” in its name only so long as the Investment Manager or one of its
affiliates serves as the investment manager of the Fund. The Fund agrees to indemnify and hold
harmless the Investment Manager and its affiliates from and against any and all costs, losses,
claims, damages or liabilities, joint or several, including, without limitation, attorney’s fees
and disbursements, which may arise out of the Fund’s use or misuse of the name “X.X. Xxxxxx Access
Multi-Strategy Fund, L.L.C.” or out of any breach of or failure to comply with this Section 16.
17. Miscellaneous.
(a) Definitions. Capitalized terms used and not otherwise defined in this
Agreement shall have the same meaning as in the Private Placement Memorandum. As used in
this Agreement, the terms “assignment,” “interested persons,” and a “vote of a majority of
the outstanding voting securities” will have the respective meanings set forth in Section
2(a)(4), Section 2(a)(19) and Section 2(a)(42) of the 1940 Act, and relevant interpretations
of those sections.
(b) Notices. Any notice, consent or other communication made or given in
connection with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or five days after mailed by certified mail, return receipt requested,
as follows:
If to the Investment Manager:
X.X. Xxxxxx Investment Management, Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal
If to the Fund:
X.X. Xxxxxx Access Multi-Strategy Fund, L.L.C.
c/o PFPC Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:
c/o PFPC Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention:
(c) Entire Agreement. This Agreement contains all of the terms agreed upon or
made by the parties relating to the subject matter of this Agreement, and supersedes all
prior and contemporaneous agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, respecting such subject matter.
(d) Amendments and Waivers. This Agreement may be amended by mutual consent,
but the consent of the Fund must be approved, if required by the 1940 Act, (a) by vote of a
majority of those members of the Board of Directors who are not parties to this Agreement or
interested persons of any party to this Agreement, cast in person at a meeting called for
the purpose of voting on such amendment, and (b) by vote of a majority of the outstanding
voting securities of the Fund.
(e) Binding Effect; Assignment. This Agreement will automatically and
immediately terminate in the event of its assignment, provided that an assignment to
a successor to all or substantially all of the Investment Manager’s business or to a wholly
owned subsidiary of such successor that does not result in a change of actual control of the
Investment Manager’s business or management will not be deemed to be an assignment for the
purposes of this Agreement.
(f) Governing Law. Notwithstanding the place where this Agreement may be
executed by any of the parties to this Agreement, the parties expressly agree that all terms
and provisions of this Agreement shall be governed by and construed in accordance with the
laws of the Xxxxx xx Xxx Xxxx,
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Xxxxxx Xxxxxx applicable to agreements made and to be performed entirely in that
jurisdiction, without regard to such jurisdiction’s conflict of laws provisions.
(g) Headings. The headings contained in this Agreement are intended solely for
convenience and shall not affect the rights of the parties to this Agreement.
(h) Counterparts. This Agreement may be signed in any number of counterparts
with the same effect as if the signatures to each counterpart were upon a single instrument,
and all such counterparts together shall be deemed an original of this Agreement.
(i) Survival. The provisions of Sections 6, 7, 8, 12, and 17(f) of this
Agreement will survive the termination of this Agreement.
(j) Fund Obligations. The parties to this Agreement agree that the obligations
of the Fund under this Agreement will not be binding upon any of the Directors, Members or
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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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the date
first written above.
| X.X. XXXXXX ACCESS MULTI-STRATEGY FUND, L.L.C. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| X.X. XXXXXX INVESTMENT MANAGEMENT, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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