INVESTMENT MANAGEMENT AGREEMENT
Exhibit
99.2G
AGREEMENT
made this 22nd
day of December, 2008, by
and between ACP Strategic Opportunities Fund II, LLC, a Delaware Limited
Liability Company (the “Company”), and Ascendant Capital Partners LP, a Delaware
Limited Partnership (the “Investment Manager”).
WHEREAS,
the Company is registered as a non-diversified, closed-end management investment
company under the Investment Company Act of 1940, as amended (the “Investment
Company Act”).
WHEREAS,
the Company has retained the Investment Manager, Inc. (the “Administrator”) to
provide administration of the Company's operations, subject to the control of
the Board of Directors;
WHEREAS,
the Company desires to retain the Investment Manager to render investment
management services to the Company, and the Investment Manager is willing to
render such services:
NOW,
THEREFORE, in consideration of mutual covenants herein contained, the parties
hereto agree as follows:
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1.
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Duties of Investment
Manager. The Company employs the Investment Manager to
manage the investment and reinvestment of the assets of the Company, and
to continuously review, supervise and (where appropriate) administer the
investment program of the Company, to determine in its discretion (where
appropriate) the investments to be purchased or sold, to provide the
Administrator and the Company with records concerning the Investment
Manager's activities which the Company is required to maintain, and to
render regular reports to the Administrator and to the Company's officers
and Directors concerning the Investment Manager's discharge of the
foregoing responsibilities. The retention of a sub-adviser by
the Investment Manager shall not relieve the Investment Manager of its
responsibilities under this
Agreement.
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The
Investment Manager shall discharge the foregoing responsibilities subject to the
control of the Board of Directors of the Company and in compliance with such
policies as the Directors may from time to time establish, and in compliance
with the objectives, policies, and limitations of the Company as set forth in
its Prospectus, Statement of Additional Information and Operating Agreement, as
amended from time to time, and applicable laws and regulations.
The
Investment Manager accepts such employment and agrees, at its own expense, to
render the services and to provide the office space, furnishings and equipment
and the personnel (including any sub-advisers) required by it to perform the
services on the terms and for the compensation provided herein. The
Investment Manager will not, however, pay for the cost of
securities,
commodities,
and other investments (including brokerage commissions and other transaction
charges, if any) purchased or sold for the Company.
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2.
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Company
Transactions. The Investment Manager is authorized to
select the brokers or dealers that will execute the purchases and sales of
the Company’s investments and is directed to use its best efforts to
obtain the best net results as described from time to time in the
Company's Prospectus and Statement of Additional
Information. The Investment Manager will promptly communicate
to the Administrator and to the officers and the Directors of the Company
such information relating to the Company’s investment transactions as they
may reasonably request.
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It is
understood that the Investment Manager will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Company or be in breach
of any obligation owing to the Company under this Agreement, or otherwise, by
reason of its having directed a securities transaction on behalf of the Company
to a broker-dealer in compliance with the provisions of Section 28(e) of the
Securities Exchange Act of 1934 or as described from time to time by the
Company’s Prospectus and Statement of Additional Information.
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3.
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Compensation of the Investment
Manager. For the services to be rendered by the
Investment Manager as provided in Sections 1 and 2 of this Agreement, the
Investment Manager is entitled to receive from persons who purchase Units
of the Company (“Members”) an annual management fee (the “Management
Fee”). The Management Fee is equal to 1.50% of the net asset
value of each Member’s Units and will be subject to an adjustment (the
“Management Fee Adjustment”) based on the annual returns of each Member’s
Units. The Investment Manager’s fee is calculated and accrued
monthly and is paid out to the Investment Manager on a quarterly
basis. The Management Fee Adjustment will be determined in
accordance with the scale as specified in the Schedule(s) which is
attached hereto and made part of this Agreement. For purposes
of determining the Management Fee, net assets will be determined by taking
into account net realized gain or loss and the net change in unrealized
appreciation or depreciation of net
assets.
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All
rights of compensation under this Agreement for services performed as of the
termination date shall survive the termination of this Agreement.
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4.
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Other
Expenses. The Investment Manager shall pay all expenses
of printing and mailing reports, prospectuses, statements of additional
information, and sales literature relating to the solicitation of
prospective clients. The Company shall pay all expenses
relating to mailing to existing Members prospectuses, statements of
additional information, proxy solicitation material and Member
reports.
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5.
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Excess
Expenses. If the expenses for the Company for any fiscal
year (including fees and other amounts payable to the Investment Manager,
but excluding interest, taxes, brokerage costs, litigation, and other
extraordinary costs) as calculated every business day would exceed the
expense limitations imposed on investment companies by any applicable
statute or regulatory authority of any jurisdiction in which Units of the
Company are qualified for offer and sale, the Investment Manager shall
bear such excess cost.
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Payment
of expenses by the Investment Manager pursuant to this Section 5 shall be
settled on a monthly basis (subject to fiscal year end reconciliation) by a
reduction in the fee payable to the Investment Manager for such month pursuant
to Section 3 and, if such reduction shall be insufficient to offset such
expenses, by reimbursing the Company.
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6.
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Reports. The Company and
the Investment Manager agree to furnish to each other, if applicable,
current prospectuses, proxy statements, reports to Members, certified
copies of their financial statements, and such other information with
regard to their affairs as each may reasonably
request.
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7.
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Status of Investment
Manager. The services of the Investment Manager to the
Company are not to be deemed exclusive, and the Investment Manager shall
be free to render similar services to others so long as its services to
the Company are not impaired thereby. The Investment Manager
shall be deemed to be an independent contractor and shall, unless
otherwise expressly provided or authorized, have no authority to act for
or represent the Company in any way or otherwise be deemed an agent of the
Company.
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8.
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Certain
Records. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2
promulgated under the Investment Company Act which are prepared or
maintained by the Investment Manager on behalf of the Company are the
property of the Company and will be surrendered promptly to the Company on
request.
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9.
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Limitation of Liability of
Investment Manager. The duties of the Investment Manager
shall be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against the Investment Manager
hereunder. The Investment Manager shall not be liable for any
error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission in carrying out its duties
hereunder, except a loss resulting from willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder, except as may
otherwise be provided under provisions of applicable state law or Federal
securities law which cannot be waived or modified hereby. (As
used in this Paragraph 9, the term "Investment Manager" shall include
directors, officers, employees and other corporate agents of the
Investment Manager as well as the Limited Partnership
itself).
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10.
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Permissible
Interests. Directors, agents, and Members of the Company
are or may be interested in the Investment Manager (or any successor
thereof) as directors, partners, officers, or Members, or otherwise;
directors, partners, officers, agents, and Members of the Investment
Manager are or may be interested in the Company as Directors, Members or
otherwise; and the Investment Manager (or any successor) is or may be
interested in the Company as a Member or otherwise. In
addition, brokerage transactions for the Company may be effected through
affiliates of the Investment Manager if approved by the Board of
Directors, subject to the rules and regulations of the Securities and
Exchange Commission.
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11.
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License of Investment Manager's
Name. The Investment Manager hereby agrees to grant a
license to the Company for use of its name in the names of the Company for
the term of this Agreement and such license shall terminate upon
termination of this Agreement.
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12.
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Duration and Termination.
This Agreement, unless sooner terminated as provided herein, shall
remain in effect until two years from date of execution, and thereafter,
for periods of one year so long as such continuance thereafter is
specifically approved at least annually (a) by the vote of a majority of
those Directors of the Company who are not parties to this Agreement or
interested persons of any such party, cast in person at a meeting called
for the purpose of voting on such approval, and (b) by the Directors of
the Company or by vote of a majority of the outstanding voting Units of
the Company; provided, however, that if the Members of the Company fail to
approve the Agreement as provided herein, the Investment Manager may
continue to serve hereunder in the manner and to the extent permitted by
the Investment Company Act and rules and regulations
thereunder. The foregoing requirement that continuance of this
Agreement be “specifically approved at least annually” shall be construed
in a manner consistent with the Investment Company Act and the rules and
regulations thereunder.
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This
Agreement may be terminated at any time, without the payment of any penalty by
vote of a majority of the Directors of the Company or by vote of a majority of
the outstanding voting Units of the Company on not less than 30 days nor more
than 60 days written notice to the Investment Manager, or by the Investment
Manager at any time without the payment of any penalty, on 90 days written
notice to the Company. This Agreement will automatically and
immediately terminate in the event of its assignment. Any notice
under this Agreement shall be given in writing, addressed and delivered, or
mailed postpaid, to the other party at any office of such party.
As used
in this Section 12, the terms “assignment”, “interested persons”, and a “vote of
a majority of the outstanding voting securities” shall have the respective
meanings set forth in the Investment Company Act and the rules and
regulations
thereunder;
subject to such exemptions as may be granted by the Securities and Exchange
Commission under said Act.
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13.
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Notice. Any
notice required or permitted to be given by either party to the other
shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party
at the last address furnished by the other party to the party giving
notice: if to the Company, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: President, and if to the Investment Manager
at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention:
President.
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14.
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Severability. If any
provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
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15.
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Governing
Law. This Agreement shall be construed in accordance
with the laws of the Commonwealth of Pennsylvania and the applicable
provisions of the Investment Company Act. To the extent that the
applicable laws of the Commonwealth of Pennsylvania, or any of the
provisions herein, conflict with the applicable provisions of the
Investment Company Act, the latter shall
control.
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A copy of
the Certificate of Formation of the Company is on file with the Secretary of the
State of Delaware, and notice is hereby given that this instrument is executed
on behalf of the Directors of the Company as Directors, and are not binding upon
any of the Directors, officers, or Members of the Company individually but
binding only upon the assets and property of the Company.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as
of the day and year first written above.
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ACP
STRATEGIC OPPORTUNITIES FUND II, LLC
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By:
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/S/
Xxxx X. Xxxxxxx
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Attest:
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ASCENDANT
CAPITAL PARTNERS
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By:
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/S/
Xxxx X. Xxxxxxx
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Attest:
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Schedule
A dated December 22,
2008,
to
the
dated
December 22,
2008,
between
ACP
Strategic Opportunities Fund II, LLC
and
Ascendant
Capital Partners
The
Management Fee Adjustment is determined in accordance with the following
scale:
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Annual
Return
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Management
Fee Adjustment
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Net
Management Fee
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Less
than 6.00%
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-0.50%
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1.00%
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Greater
than 6.00%
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1.50%
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