INVESTMENT MANAGEMENT AGREEMENT
THIS INVESTMENT MANAGEMENT AGREEMENT is made the 13th day of
October, 2006, by and between Old Mutual 2100 Emerging Managers Master Fund,
L.L.C., a Delaware limited liability company (the "Fund"), and 0000 Xxxxx Xxxx
LLC, a Delaware limited liability company (the "Investment Adviser").
WHEREAS, the Fund is registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"), as a closed-end, non-diversified management
investment company, and the Investment Adviser is an investment adviser
registered as such with the Commission under the Investment Advisers Act of
1940, as amended; and
WHEREAS, the Fund desires to retain the Investment Adviser to
act as its investment adviser pursuant to this Agreement; and
WHEREAS, the Investment Adviser desires to be retained to act
as investment adviser to the Fund pursuant to this Agreement;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, it is agreed, by and between the parties, as follows:
1. The Fund hereby retains the Investment Adviser to:
(a) act as its investment adviser and, subject to the
supervision and control of the Board of Managers of the Fund (the "Board"),
manage the investment activities of the Fund as hereinafter set forth. Without
limiting the generality of the foregoing, the Investment Adviser shall: obtain
and evaluate such information and advice relating to the economy, securities
markets, and securities as it deems necessary or useful to discharge its duties
hereunder; continuously manage the assets of the Fund in a manner consistent
with the investment objective, policies and restrictions of the Fund, as set
forth in the registration statement of the Fund filed with the Commission on
Form N-2, as the same may be amended from time to time, and such other policies
as may be adopted from time to time by the Board, and applicable laws and
regulations; determine the securities to be purchased, sold or otherwise
disposed of by the Fund and the timing of such purchases, sales and
dispositions; 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 ("Portfolio Funds"), which are managed by investment managers
("Portfolio Managers"), which retention shall be subject to compliance with
applicable 1940 Act provisions, and take such further action, including the
placing of purchase and sale orders and the voting of securities on behalf of
the Fund, as the Investment Adviser shall deem necessary or appropriate. The
Investment Adviser shall furnish to or place at the disposal of the Fund such of
the information, evaluations, analyses and opinions formulated or obtained by
the Investment Adviser in the discharge of its duties as the Fund may, from time
to time, reasonably request; and
(b) provide, and the Investment Adviser hereby agrees to
provide, certain management services to the Fund in connection with provision of
the advisory services set forth in 1(a) above. These include:
(i) providing office space, telephone and
utilities;
(ii) providing administrative and secretarial,
clerical and other personnel as necessary to
provide the services required to be provided
under this Agreement;
(iii) monitoring relations and communications
between investors and the Fund;
(iv) assisting in the drafting and updating of
disclosure documents relating to the Fund
and assisting in the preparation of offering
materials;
(v) assisting in the preparation of regulatory
filings with the Commission and state
securities regulators and other Federal and
state regulatory authorities;
(vi) assisting in the preparation of reports to
and other informational materials for
members and assisting in the preparation of
proxy statements and other member
communications;
(vii) monitoring compliance with regulatory
requirements and with the Fund's investment
objective, policies and restrictions as
established by the Board;
(viii) assisting in the preparation of materials
and reports for use in connection with
meetings of the Board;
(ix) maintaining and preserving those books and
records of the Fund not maintained by any
Sub-Adviser (as defined in paragraph 2
below) of the Fund or the Fund's
administrator, accounting agent or custodian
(which books and records shall be the
property of the Fund and maintained and
preserved as required by the 1940 Act and
the rules thereunder and shall be
surrendered to the Fund promptly upon
request);
(x) providing the services of persons employed
by the Investment Adviser or its affiliates
who may be appointed as officers of the Fund
by the Board; and
(xi) assisting the Fund in routine regulatory
examinations, and working closely with any
counsel of the Fund and any counsel retained
to represent any members of the Board who
are not "interested persons," as defined by
the 1940 Act and the rules thereunder (the
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"Independent Managers") of the Fund in
response to any litigation, investigations
or regulatory matters.
2. Provided that the Fund shall not be required to pay any
compensation to the Investment Adviser for the services to be provided hereunder
other than as provided by the terms of this Agreement, the Investment Adviser is
authorized: (i) to obtain investment information, research or assistance from
any other person, firm or corporation to supplement, update or otherwise improve
its investment management services; and (ii) to enter into investment
sub-advisory agreements with any registered investment adviser (a
"Sub-Adviser"), subject to such approvals of the Board and members of the Fund
("Members") as may be required to comply with applicable provisions of the 1940
Act, and delegating any or all of the services required to be provided by the
Investment Adviser under paragraph 1(a) hereof, subject to the supervision of
the Investment Adviser.
3. Without limiting the generality of paragraph 1 hereof, the
Investment Adviser and, if applicable, the Sub-Adviser, shall be authorized to
open, maintain and close accounts in the name and on behalf of the Fund with
brokers and dealers as it determines are appropriate; to select and place orders
with brokers, dealers or other financial intermediaries for the execution,
clearance or settlement of any transactions on behalf of the Fund on such terms
as the Investment Adviser (or the Sub-Adviser) considers appropriate and that
are consistent with the policies of the Fund; and, subject to any policies
adopted by the Board and to the provisions of applicable law, to agree to such
commissions, fees and other charges on behalf of the Fund as it shall deem
reasonable in the circumstances taking into account all such factors as it deems
relevant (including the quality of research and other services made available to
it even if such services are not for the exclusive benefit of the Fund and the
cost of such services does not represent the lowest cost available) and shall be
under no obligation to combine or arrange orders so as to obtain reduced charges
unless otherwise required under the federal securities laws. The Investment
Adviser (or the Sub-Adviser) may, subject to such procedures as may be adopted
by the Board, use affiliates of the Investment Adviser as brokers to effect the
Fund's securities transactions and the Fund may pay such commissions to such
brokers in such amounts as are permissible under applicable law.
4. INVESTMENT MANAGEMENT FEE; EXPENSES
(a) The Fund shall not pay any fees to the Investment
Adviser so long as the Investment Adviser is the investment adviser to any fund
that invests substantially all of its assets in the Fund (each, a "Feeder Fund")
and such Feeder Fund pays a fee to the Investment Adviser for its investment
advisory services. In the event the Investment Adviser ceases to serve as the
investment adviser to each Feeder Fund, as consideration for the provision by
the Investment Adviser of its services hereunder, the Fund shall pay the
Investment Adviser a fee that is calculated and payable in accordance with the
lowest annual rate that had most recently been charged by the Investment Adviser
to a Feeder Fund (the "Investment Management Fee").
(b) Except as is provided in paragraph 6 below, the
Investment Adviser is responsible for all costs and expenses associated with the
provision of its services hereunder including, but not limited to: expenses
relating to the selection and monitoring of Portfolio Managers; and fees of any
consultants or a Sub-Adviser retained by the Investment
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Adviser. The Investment Adviser shall, at its own expense, maintain such staff
and employ or retain such personnel and consult with such other persons as may
be necessary to render the services required to be provided by the Investment
Adviser or furnished to the Fund under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Investment Adviser
shall be deemed to include persons employed or otherwise retained by the
Investment Adviser or made available to the Investment Adviser.
5. The Fund will, from time to time, furnish or otherwise
make available to the Investment Adviser such financial reports, proxy
statements, policies and procedures and other information relating to the
business and affairs of the Fund as the Investment Adviser may reasonably
require in order to discharge its duties and obligations hereunder.
6. Except as provided herein or in another agreement between
the Fund and the Investment Adviser, the Fund shall bear its own operating
expenses, including, but not limited to: all investment-related expenses
(including, but not limited to, fees paid directly or indirectly to Portfolio
Managers, investment-related interest expense, all costs and expenses directly
related to portfolio transactions and positions for the Fund's account such as
direct and indirect expenses associated with the Fund's investments, including
its investments in Portfolio Funds, costs and expenses associated with
background checks on Portfolio Managers, all costs and expenses associated with
retaining independent third parties to provide risk management services to the
Fund, transfer taxes and premiums and taxes withheld on foreign dividends); any
non-investment related interest expense; fees and disbursements of any attorneys
and accountants engaged on behalf of the Fund; entity-level taxes; audit and tax
preparation fees and expenses; administrative expenses and fees; custody and
escrow fees and expenses; the costs of an errors and omissions/directors and
officers liability insurance and a fidelity bond for the Fund; any Investment
Management Fee; fees and travel-related expenses of the Board who are not
employees of the Investment Adviser or any affiliate of the Investment Adviser;
all costs and charges for equipment or services used in communicating
information regarding the Fund's transactions among the Investment Adviser
and/or Sub-Adviser and any custodian or other agent engaged by the Fund; any
extraordinary expenses; and such other expenses as may be approved from time to
time by the Board.
7. The compensation provided to the Investment Adviser
pursuant to paragraph 4 hereof shall be the entire compensation for the services
provided to the Fund hereunder and the expenses assumed by the Investment
Adviser under this Agreement.
8. The Investment Adviser will use its best efforts in the
supervision and management of the investment activities of the Fund and in
providing services hereunder, but in the absence of willful misfeasance, bad
faith, gross negligence or reckless disregard of its obligations hereunder, the
Investment Adviser, its directors, officers or employees and its affiliates,
successors or other legal representatives (collectively, the "Affiliates") shall
not be liable to the Fund for any error of judgment, for any mistake of law, for
any act or omission by the Investment Adviser or any of the Affiliates or by any
Sub-Adviser or for any loss suffered by the Fund.
9. (a) The Fund shall indemnify the Investment Adviser and
its directors, members, officers or employees and their respective affiliates,
executors, heirs, assigns,
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successors or other legal representatives (each an "Indemnified Person") against
any and all costs, losses, claims, damages or liabilities, joint or several,
including, without limitation, reasonable attorneys' fees and disbursements,
resulting in any way from the performance or non-performance of any Indemnified
Person's duties with respect to the Fund, except those resulting from the
willful misfeasance, bad faith or gross negligence of an Indemnified Person or
the Indemnified Person's reckless disregard of such duties, and in the case of
criminal proceedings, unless such Indemnified Person had reasonable cause to
believe its actions were unlawful (collectively, "disabling conduct").
Indemnification shall be made following: (i) a final decision on the merits by a
court or other body before which the proceeding was brought that the Indemnified
Person was not liable by reason of disabling conduct or (ii) a reasonable
determination, based upon a review of the facts and reached by (A) the vote of a
majority of the Managers who are not parties to the proceeding or (B) legal
counsel selected by a vote of a majority of the Board in a written advice, that
the Indemnified Person is entitled to indemnification hereunder. The Fund shall
advance to an Indemnified Person (to the extent that it has available assets and
need not borrow to do so) reasonable attorneys' fees and other costs and
expenses incurred in connection with defense of any action or proceeding arising
out of such performance or non-performance. The Investment Adviser agrees, and
each other Indemnified Person will agree as a condition to any such advance,
that in the event the Indemnified Person receives any such advance, the
Indemnified Person shall reimburse the Fund for such fees, costs and expenses to
the extent that it shall be determined that the Indemnified Person was not
entitled to indemnification under this paragraph 9.
(b) Notwithstanding any of the foregoing to the contrary, the
provisions of this paragraph 9 shall not be construed so as to relieve the
Indemnified Person of, or provide indemnification with respect to, any liability
(including liability under Federal Securities laws, which, under certain
circumstances, impose liability even on persons who act in good faith) to the
extent (but only to the extent) that such liability may not be waived, limited
or modified under applicable law or that such indemnification would be in
violation of applicable law, but shall be construed so as to effectuate the
provisions of this paragraph 9 to the fullest extent permitted by law.
10. Nothing contained in this Agreement shall prevent the
Investment Adviser or any affiliated person of the Investment Adviser from
acting as investment adviser or manager for any other person, firm or
corporation and, except as required by applicable law (including Rule 17j-1
under the 1940 Act), shall not in any way bind or restrict the Investment
Adviser or any such affiliated person from buying, selling or trading any
securities or commodities for their own accounts or for the account of others
for whom they may be acting. Nothing in this Agreement shall limit or restrict
the right of any member, officer or employee of the Investment Adviser to engage
in any other business or to devote his or her time and attention in part to the
management or other aspects of any other business whether of a similar or
dissimilar nature.
11. This Agreement will take effect on the date first set
forth above. Unless earlier terminated pursuant to this paragraph, this
Agreement shall remain in effect for a period of two (2) years from such date
and shall continue in effect from year to year thereafter, so long as such
continuance shall be approved at least annually by the vote of a "majority of
the outstanding voting securities of the Fund," as defined by the 1940 Act and
the rules thereunder, or by the Board; and provided that in either event such
continuance is also approved by a
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majority of the Independent Managers, by vote cast in person at a meeting called
for the purpose of voting on such approval. The Fund may at any time, without
payment of any penalty, terminate this Agreement upon sixty days' prior written
notice to the Investment Adviser, either by majority vote of the Board or by the
vote of a "majority of the outstanding voting securities of the Fund," as
defined by the 1940 Act and the rules thereunder. The Investment Adviser may at
any time, without payment of penalty, terminate this Agreement upon sixty days'
prior written notice to the Fund. This Agreement shall automatically terminate
in the event of its "assignment," as defined by the 1940 Act and the rules
thereunder.
12. Any notice under this Agreement shall be given in writing
and shall be deemed to have been duly given when delivered by hand or facsimile
or five days after mailed by certified mail, post-paid, by return receipt
requested to the other party at the principal office of such party.
13. This Agreement may be amended only by the written
agreement of the parties. Any amendment shall be required to be approved by the
Board and by a majority of the Independent Managers in accordance with the
provisions of Section 15(c) of the 1940 Act and the rules thereunder. If
required by the 1940 Act or the rules and interpretations thereunder, any
amendment shall also be required to be approved by the vote of a "majority of
the outstanding voting securities of the Fund," as defined by the 1940 Act and
the rules thereunder.
14. This Agreement shall be construed in accordance with the
laws of the State of New York and the applicable provisions of the 1940 Act. To
the extent the applicable law of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
15. The Fund represents that this Agreement has been duly
approved by the Board, including the vote of a majority of the Independent
Managers, and by the vote of a "majority of the outstanding voting securities of
the Fund," as defined by the 1940 Act and the rules thereunder.
16. The parties to this Agreement agree that the obligations
of the Fund under this Agreement shall not be binding upon any of the Managers,
members of the Fund 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.
17. This Agreement embodies the entire understanding of the
parties.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the day and year first above written.
OLD MUTUAL 2100 EMERGING MANAGERS MASTER
FUND, L.L.C.
By:
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Attest: Name:
Title:
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0000 XXXXX XXXX LLC
By:
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Attest: Name:
Title:
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