EXHIBIT 10.3
INVESTMENT ADVISORY AGREEMENT
BETWEEN
REGATTA CAPITAL PARTNERS, INC.
AND
REGATTA CAPITAL MANAGEMENT, LLC
Agreement made this 17th day of May, 2006, by and between REGATTA CAPITAL
PARTNERS, INC, a Maryland corporation (the "Corporation"), and REGATTA CAPITAL
MANAGEMENT, LLC, a Delaware limited liability company (the "Adviser").
WHEREAS, the Corporation is a newly organized closed-end management
investment company that has elected to be treated as a business development
company under the Investment Company Act of 1940 (the "Investment Company Act");
WHEREAS, the Adviser is a newly organized investment adviser that is exempt
from registering under the Investment Advisers Act of 1940 (the "Advisers Act")
under Section 203A, and
WHEREAS, the Corporation desires to retain the Adviser to furnish
investment advisory services to the Corporation on the terms and conditions
hereinafter set forth, and the Adviser wishes to be retained to provide such
services.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties hereby agree as follows:
1. Duties of the Adviser.
(a) The Corporation hereby employs the Adviser to act as the investment
adviser to the Corporation and to manage the investment and reinvestment of the
assets of the Corporation, subject to the supervision of the Board of Directors
of the Corporation, for the period and upon the terms herein set forth, (i) in
accordance with the investment objective, policies and restrictions that are set
forth in the Corporation's Information Statement on Schedule 14C, dated May
17th, 2006, as the same shall be amended from time to time (as amended, the
"Information Statement"), (ii) in accordance with the Investment Company Act and
(iii) during the term of this Agreement in accordance with all other applicable
federal and state laws, rules and regulations, and the Corporation's charter and
by-laws. Without limiting the generality of the foregoing, the Adviser shall,
during the term and subject to the provisions of this Agreement, (i) determine
the composition of the portfolio of the Corporation, the nature and timing of
the changes therein and the manner of implementing such changes; (ii) identify,
evaluate and negotiate the structure of the investments made by the Corporation;
(iii) close and monitor the Corporation's investments; (iv) determine the
securities and other assets that the Corporation will purchase, retain, or sell;
(v) perform due diligence on prospective portfolio companies; and (vi) provide
the Corporation with such other investment advisory, research and related
services as the Corporation may, from time to time, reasonably require for the
investment of its funds. The Adviser shall have the power and authority on
behalf of the Corporation to effectuate its investment decisions for the
Corporation, including the execution and delivery of all documents relating to
the Corporation's investments and the placing of orders for other purchase or
sale transactions on behalf of the Corporation. In the event that the
Corporation determines to acquire debt financing, the Adviser will arrange for
such financing on the Corporation's behalf, subject to the oversight and
approval of the Corporation's Board of Directors. If it is necessary for the
Adviser to make investments on behalf of the Corporation through a special
purpose vehicle, the Adviser shall have authority to create or arrange for the
creation of such special purpose vehicle and to make such investments through
such special purpose vehicle in accordance with the Investment Company Act.
(b) The Adviser hereby accepts such employment and agrees during the term
hereof to render the services described herein for the compensation provided
herein.
(c) Subject to the requirements of the Investment Company Act, the Adviser
is hereby authorized to enter into one or more sub-advisory agreements with
other investment advisers (each, a "Sub-Adviser") pursuant to which the Adviser
may obtain the services of the Sub-Adviser(s) to assist the Adviser in
fulfilling its responsibilities hereunder. Specifically, the Adviser may retain
a Sub-Adviser to recommend specific securities or other investments based upon
the Corporation's investment objective and policies, and work, along with the
Adviser, in structuring, negotiating, arranging or effecting the acquisition or
disposition of such investments and monitoring investments on behalf of the
Corporation, subject to the oversight of the Adviser and the Corporation. The
Adviser, and not the Corporation, shall be responsible for any compensation
payable to any Sub-Adviser. Any sub-advisory agreement entered into by the
Adviser shall be in accordance with the requirements of the Investment Company
Act and other applicable federal and state law and shall contain a provision
requiring the Sub-Adviser to comply with sections 1(e) and 1(f) below as if it
were the Adviser.
(d) The Adviser shall for all purposes herein provided be deemed to be an
independent contractor and, except as expressly provided or authorized herein,
shall have no authority to act for or represent the Corporation in any way or
otherwise be deemed an agent of the Corporation.
(e) The Adviser shall keep and preserve for the period required by the
Investment Company Act any books and records relevant to the provision of its
investment advisory services to the Corporation and shall specifically maintain
all books and records with respect to the Corporation's portfolio transactions
and shall render to the Corporation's Board of Directors such periodic and
special reports as the Board may reasonably request. The Adviser agrees that all
records that it maintains for the Corporation are the property of the
Corporation and will surrender promptly to the Corporation any such records upon
the Corporation's request, provided that the Adviser may retain a copy of such
records.
(f) The Adviser has adopted and implemented written policies and procedures
reasonably designed to prevent violation of the Federal Securities laws by the
Adviser. The Adviser shall provide the Corporation, at such times as the
Corporation shall reasonably request, with a copy of such policies and
procedures and a report of such policies and procedures; such report shall be of
sufficient scope and in sufficient detail, as may reasonably be required to
comply with Rule 38a-1 under the Investment Company Act and to provide
reasonable assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the reports shall so state.
2. Corporation's Responsibilities and Expenses Payable by the Corporation.
All investment professionals of the Adviser and their respective staffs, when
and to the extent engaged in providing investment advisory and management
services hereunder, and the compensation and routine overhead expenses of such
personnel allocable to such services, will be provided and paid for by the
Adviser and not by the Corporation. The Corporation will bear all other costs
and expenses of its operations and transactions, including (without limitation)
those relating to: organization and formation; calculating the Corporation's net
asset value (including the cost and expenses of any independent valuation firm);
expenses incurred by the Adviser payable to third parties, including agents,
consultants or other advisors (such as independent valuation firms, accountants
and legal counsel), in monitoring financial and legal affairs for the
Corporation and in monitoring the Corporation's investments and performing due
diligence on its prospective portfolio companies; interest payable on debt, if
any, incurred to finance the Corporation's investments; offerings of the
Corporation's common stock and other securities; investment advisory and
management fees; administration fees, if any, payable under the Administration
Agreement between the Corporation and Regatta Administration, LLC (the
"Administrator"), the Corporation's administrator; fees payable to third
parties, including agents, consultants or other advisors, relating to, or
associated with, evaluating and making investments; transfer agent and custodial
fees; federal and state registration fees; all costs of registration and listing
the Corporation's shares on any securities exchange; federal, state and local
taxes; independent Directors' fees and expenses; costs of preparing and filing
reports or other documents required by the Securities and Exchange Commission;
costs of any reports, proxy statements or other notices to stockholders,
including printing costs; the Corporation's allocable portion of the fidelity
bond, directors and officers/errors and omissions liability insurance, and any
other insurance premiums; direct costs and expenses of administration, including
printing, mailing, long distance telephone, copying, secretarial and other
staff, independent auditors and outside legal costs; and all other expenses
incurred by the Corporation or the Administrator in connection with
administering the Corporation's business, including payments under the
Administration Agreement between the Corporation and the Administrator based
upon the Corporation's allocable portion of the Administrator's overhead in
performing its obligations under the Administration Agreement, including rent
and the allocable portion of the cost of the Corporation's chief compliance
officer and chief financial officer and their respective staffs.
2
3. Compensation of the Adviser. The Corporation agrees to pay, and the
Adviser agrees to accept, as compensation for the services provided by the
Adviser hereunder, a base management fee ("Base Management Fee") and an
incentive fee ("Incentive Fee") as hereinafter set forth. The Corporation shall
make any payments due hereunder to the Adviser or to the Adviser's designee as
the Adviser may otherwise direct.
(a) The Base Management Fee shall be calculated at an annual rate of 2.00%
of the Corporation's gross assets, payable quarterly in arrears. For the first
quarter of the Corporation's operations commencing with the effective date of
the Information Statement, the Base Management Fee will be calculated based on
the initial value of the Corporation's gross assets. Subsequently, the Base
Management Fee will be calculated based on the average value of the
Corporation's gross assets at the end of the two most recently completed
calendar quarters, and appropriately adjusted for any share issuances or
repurchases during the current calendar quarter. Base Management Fees for any
partial month or quarter will be appropriately pro rated.
(b) The Incentive Fee shall consist of two parts, as follows:
(i) One part will be calculated and payable quarterly in arrears
based on the pre-Incentive Fee net investment income for the
immediately preceding calendar quarter. For this purpose,
pre-Incentive Fee net investment income means interest income,
dividend income and any other income (including any other fees,
such as commitment, origination, structuring, diligence and
consulting fees and fees for providing significant managerial
assistance or other fees that the Corporation receives from
portfolio companies) accrued by the Corporation during the
calendar quarter, minus the Corporation's operating expenses for
the quarter (including the Base Management Fee, expenses payable
under the Administration Agreement, and any interest expense and
dividends paid on any issued and outstanding preferred stock, but
excluding the Incentive Fee). Pre-Incentive Fee net investment
income includes, in the case of investments with a deferred
interest feature (such as original issue discount, debt
instruments with payment-in-kind interest and zero coupon
securities), accrued income that the Corporation has not yet
received in cash. Pre-Incentive Fee net investment income does
not include any realized capital gains, realized capital losses
or unrealized capital appreciation or depreciation. Pre-Incentive
Fee net investment income, expressed as a rate of return on the
value of the Corporation's net assets at the end of the
immediately preceding calendar quarter, will be compared to a
"hurdle rate" of 1.75% per quarter (7% annualized). The
Corporation will pay the Adviser an Incentive Fee with respect to
the Corporation's pre-Incentive Fee net investment income in each
calendar quarter as follows; (1) no Incentive Fee in any calendar
quarter in which the Corporation's pre-Incentive Fee net
investment income does not exceed the hurdle rate; (2) 100% of
the Corporation's pre-Incentive Fee net investment income with
respect to that portion of such pre-Incentive Fee net investment
income, if any, that exceeds the hurdle rate but is less than
2.1875% in any calendar quarter (8.75% annualized); and (3) 20%
of the amount of the Corporation's pre-Incentive Fee net
investment income, if any, that exceeds 2.1875% in any calendar
quarter (8.75% annualized). These calculations will be
appropriately pro rated for any period of less than three months
and adjusted for any share issuances or repurchases during the
current quarter.
3
(ii) The second part of the Incentive Fee (the "Capital Gains Fee")
will be determined and be payable in arrears as of the end of
each calendar year (or upon termination of this Agreement as set
forth below), commencing on December 31, 2006, and will equal
20.0% of the Corporation's realized capital gains for the
calendar year, if any, computed net of all realized capital
losses and unrealized capital depreciation at the end of such
year; provided that the Incentive Fee determined as of December
31, 2006 will be calculated for a period of shorter than twelve
calendar months to take into account any net realized capital
gains, if any, computed net of all realized capital losses and
unrealized capital depreciation for the period ending December
31, 2006. In the event that this Agreement shall terminate as of
a date that is not a calendar year end, the termination date
shall be treated as though it were a calendar year end for
purposes of calculating and paying a Capital Gains Fee.
4. Covenants of the Adviser. Notwithstanding its current exempt status, the
Adviser covenants that it has applied for, and will become, registered as an
investment adviser under the Advisers Act. The Adviser agrees that its
activities will at all times be in compliance in all material respects with all
applicable federal and state laws governing its operations and investments.
5. Excess Brokerage Commissions. The Adviser is hereby authorized, to the
fullest extent now or hereafter permitted by law, to cause the Corporation to
pay a member of a national securities exchange, broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission another member of such exchange, broker or dealer would have charged
for effecting that transaction, if the Adviser determines in good faith, taking
into account such factors as price (including the applicable brokerage
commission or dealer spread), size of order, difficulty of execution, and
operational facilities of the firm and the firm's risk and skill in positioning
blocks of securities, that such amount of commission is reasonable in relation
to the value of the brokerage and/or research services provided by such member,
broker or dealer, viewed in terms of either that particular transaction or its
overall responsibilities with respect to the Corporation's portfolio, and
constitutes the best net results for the Corporation.
6. Limitations on the Employment of the Adviser. The services of the
Adviser to the Corporation are not exclusive, and the Adviser may engage in any
other business or render similar or different services to others including,
without limitation, the direct or indirect sponsorship or management of other
investment based accounts or commingled pools of capital, however structured,
having investment objectives similar to those of the Corporation, so long as its
services to the Corporation hereunder are not impaired thereby, and nothing in
this Agreement shall limit or restrict the right of any manager, partner,
officer or employee of the Adviser to engage in any other business or to devote
his or her time and attention in part to any other business, whether of a
similar or dissimilar nature, or to receive any fees or compensation in
connection therewith (including fees for serving as a director of, or providing
consulting services to, one or more of the Corporation's portfolio companies,
subject to applicable law). So long as this Agreement or any extension, renewal
or amendment remains in effect, the Adviser shall be the only investment adviser
for the Corporation, subject to the Adviser's right to enter into sub-advisory
agreements. The Adviser assumes no responsibility under this Agreement other
than to render the services called for hereunder. It is understood that
directors, officers, employees and stockholders of the Corporation are or may
become interested in the Adviser and its affiliates, as directors, officers,
employees, partners, stockholders, members, managers or otherwise, and that the
Adviser and directors, officers, employees, partners, stockholders, members and
managers of the Adviser and its affiliates are or may become similarly
interested in the Corporation as stockholders or otherwise.
4
7. Responsibility of Dual Directors, Officers and/or Employees. If any
person who is a manager, partner, officer or employee of the Adviser or the
Administrator is or becomes a director, officer and/or employee of the
Corporation and acts as such in any business of the Corporation, then such
manager, partner, officer and/or employee of the Adviser or the Administrator
shall be deemed to be acting in such capacity solely for the Corporation, and
not as a manager, partner, officer or employee of the Adviser or the
Administrator or under the control or direction of the Adviser or the
Administrator, even if paid by the Adviser or the Administrator.
8. Limitation of Liability of the Adviser; Indemnification. The Adviser
(and its officers, managers, partners, agents, employees, controlling persons,
members and any other person or entity affiliated with the Adviser, including
without limitation the Administrator) shall not be liable to the Corporation for
any action taken or omitted to be taken by the Adviser in connection with the
performance of any of its duties or obligations under this Agreement or
otherwise as an investment adviser of the Corporation, except to the extent
specified in Section 36(b) of the Investment Company Act concerning loss
resulting from a breach of fiduciary duty (as the same is finally determined by
judicial proceedings) with respect to the receipt of compensation for services,
and the Corporation shall indemnify, defend and protect the Adviser (and its
officers, managers, partners, agents, employees, controlling persons, members
and any other person or entity affiliated with the Adviser, including without
limitation its general partner and the Administrator, each of whom shall be
deemed a third party beneficiary hereof) (collectively, the "Indemnified
Parties") and hold them harmless from and against all damages, liabilities,
costs and expenses (including reasonable attorneys' fees and amounts reasonably
paid in settlement) incurred by the Indemnified Parties in or by reason of any
pending, threatened or completed action, suit, investigation or other proceeding
(including an action or suit by or in the right of the Corporation or its
security holders) arising out of or otherwise based upon the performance of any
of the Adviser's duties or obligations under this Agreement or otherwise as an
investment adviser of the Corporation. Notwithstanding the preceding sentence of
this Paragraph 8 to the contrary, nothing contained herein shall protect or be
deemed to protect the Indemnified Parties against or entitle or be deemed to
entitle the Indemnified Parties to indemnification in respect of, any liability
to the Corporation or its security holders to which the Indemnified Parties
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of the Adviser's duties or by reason of the
reckless disregard of the Adviser's duties and obligations under this Agreement
(as the same shall be determined in accordance with the Investment Company Act
and any interpretations or guidance by the Securities and Exchange Commission or
its staff thereunder).
9. Effectiveness, Duration and Termination of Agreement. This Agreement
shall become effective as of the first date above written. This Agreement shall
remain in effect for two years, and thereafter shall continue automatically for
successive annual periods, provided that such continuance is specifically
approved at least annually by (a) the vote of the Corporation's Board of
Directors, or by the vote of a majority of the outstanding voting securities of
the Corporation and (b) the vote of a majority of the Corporation's Directors
who are not parties to this Agreement or "interested persons" (as such term is
defined in Section 2(a)(19) of the Investment Company Act) of any such party, in
accordance with the requirements of the Investment Company Act. This Agreement
may be terminated at any time, without the payment of any penalty, upon 60 days'
written notice, by the vote of a majority of the outstanding voting securities
of the Corporation, or by the vote of the Corporation's Directors or by the
Adviser. This Agreement will automatically terminate in the event of its
"assignment" (as such term is defined for purposes of Section 15(a)(4) of the
Investment Company Act). The provisions of Paragraph 8 of this Agreement shall
remain in full force and effect, and the Adviser and its representatives shall
remain entitled to the benefits thereof, notwithstanding any termination or
expiration of this Agreement. Further, notwithstanding the termination or
expiration of this Agreement as aforesaid, the Adviser shall be entitled to any
amounts owed under Section 3 through the date of termination or expiration.
10. Notices. Any notice under this Agreement shall be given in writing,
addressed and delivered or mailed, postage prepaid, to the other party at its
principal office.
11. Amendments. This Agreement may be amended by mutual consent, but the
consent of the Corporation must be obtained in conformity with the requirements
of the Investment Company Act.
5
12. Entire Agreement; Governing Law. This Agreement contains the entire
agreement of the parties and supersedes all prior agreements, understandings and
arrangements with respect to the subject matter hereof. This Agreement shall be
construed in accordance with the laws of the State of New York and the
applicable provisions of the Investment Company Act. To the extent the
applicable laws of the State of New York, or any of the provisions herein,
conflict with the provisions of the Investment Company Act, the latter shall
control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the date above written.
REGATTA CAPITAL PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
REGATTA CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
6
