Exhibit 10.06
TRADING ADVISORY AGREEMENT
This trading advisory agreement ("Agreement"), is made and entered
into effective as of the 21st day of April, 2008, by and among MAN-AHL 130, LLC,
a Delaware limited liability company (the "Fund"), MAN INVESTMENTS (USA) CORP.,
a Delaware (USA) corporation (the "Managing Member") and MAN INVESTMENTS
LIMITED, a United Kingdom corporation (the "Trading Advisor"). Capitalized and
other defined terms used in this Agreement and not otherwise expressly defined
herein shall have the same respective meanings as are set forth in the current
prospectus of the Fund (the "Prospectus").
WITNESSETH:
WHEREAS, the Fund seeks high medium term capital growth, independent
of the movement of the stock and bond markets, through the speculative trading,
directly and indirectly, in currency forward contracts, options on the foregoing
and other currency derivative instruments, (excluding any contract of sale for
future delivery made or to be made on or subject to the rules of a contract
market or derivatives transaction execution facility within the meaning of the
U.S Commodity Exchange Act) traded in the interbank and over-the-counter markets
(sometimes collectively referred to as "contracts"), and
WHEREAS, the Managing Member desires to appoint the Trading Advisor as
a trading advisor of the Fund, and the Trading Advisor desires to accept such
appointment as a trading advisor of the Fund; and
WHEREAS, the Fund, the Managing Member and the Trading Advisor wish to
enter into this Agreement in order to set forth the terms and conditions upon
which the Trading Advisor will implement its trading strategies on behalf of the
Fund.
NOW, THEREFORE, in consideration of the premises and mutual promises
and agreements set forth herein, the parties hereto do hereby agree as follows:
1. APPOINTMENT; DUTIES OF THE TRADING ADVISOR
(a) The Managing Member hereby appoints the Trading Advisor as a
trading advisor of the Fund, and the Trading Advisor accepts such appointment,
as a trading advisor of the Fund.
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(b) For the period and on the terms and conditions set forth in this
Agreement, the Trading Advisor shall have the authority and responsibility for
investing and reinvesting the Fund's assets in contracts. The investing and
reinvesting of the Fund's assets in contracts shall be done pursuant to the
Trading Advisor's proprietary trading strategies described in the Prospectus as
the AHL Diversified Program. In addition, for the period and on the terms and
conditions set forth in this Agreement, the Managing Member hereby constitutes,
appoints and authorizes the Trading Advisor as the Fund's true and lawful agent
and attorney-in-fact, in the Fund's name, place and stead to trade, buy, sell,
spread, swap, exchange or otherwise trade, deal in, acquire, hold or dispose of
"contracts" in the interbank and over-the-counter markets for the account and
risk of the Fund. The Trading Adviser shall also be granted the authority to
enter into, make and perform all contracts, agreements and other undertakings
(including the use of the Fund's assets for the provision of margin) as may in
the opinion of the Trading Adviser be necessary or advisable or incidental to
the carrying out of the objectives of this Agreement. In furtherance of the
foregoing, the Trading Advisor, as attorney-in-fact of the Fund, is hereby
authorized without further approval by the Fund (except as may be required by
law) to execute agreements with brokers and dealers and bind the Fund thereto
(including to arbitration thereunder), enter orders and/or confirmations with
respect to the transactions contemplated herein, execute directives regarding
the mailing of confirmations, disclose such financial information regarding the
Fund as such brokers or dealers deem necessary to effect such transactions and
take such other actions and make and execute all such documents as the Trading
Advisor considers necessary or appropriate to carry out its duties hereunder.
This power-of-attorney is a continuing power and shall remain in full force and
effect until revoked by the Fund in connection with the termination of this
Agreement, but any such revocation shall not affect the obligations of the Fund
in respect of any transaction initiated prior to receipt of such notice of
revocation.
(c) The Trading Advisor agrees to make all material disclosures to the
Fund and the Managing Member regarding itself and its members, managers,
partners, officers, directors, shareholders, employees, affiliates or any person
who controls any of the foregoing ("Principals and Affiliates"), their
investment performance and general investment methods, the investment
performance of their customer accounts (but not the identities of customers) and
otherwise as are required in the reasonable judgment of the Fund or the Managing
Member to be made in any filings required by any governmental body or by any
applicable law, regulation, rule or order or as are deemed necessary by the Fund
or the Managing Member to enable it to monitor the performance of the Trading
Advisor. Except as necessary in connection with Clause 1(b), each party to this
Agreement agrees to maintain in strict confidence the terms of this Agreement
and any and all information, materials or other documents regarding the other
parties which it obtains pursuant to or in connection with this Agreement, and
agrees that it shall not disclose any such documents, material or other
information to any person other than each party's attorneys and accountants
unless required to do so by law, regulation, the request of any regulatory or
self-regulatory authority or valid legal process. The Fund and the Managing
Member acknowledge that the trading advice provided by the Trading Advisor
constitutes proprietary information of the Trading Advisor, and the Fund and the
Managing Member shall not make use of such advice
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in any manner or disclose such advice to any person or entity unless required to
do so by law, regulation, the request of any regulatory or self-regulatory
authority or valid legal process. Nothing contained in this Agreement shall be
construed or deemed to require the Trading Advisor to disclose the confidential
or proprietary details of its trading strategies.
(d) The Trading Advisor may refuse any additional allocation of assets
from the Managing Member for any reason. However, the Trading Advisor
understands and agrees that the Managing Member may at any time remove all of
the assets of the Fund from the management of the Trading Advisor and may
require the Trading Advisor, to the extent possible, to liquidate existing
positions in an orderly manner as soon as practicable.
2. COMPENSATION
No compensation shall be due hereunder to the Trading Adviser,
compensation being paid to the Trading Advisor's affiliate Man AHL (USA)
Limited.
3. TERM AND TERMINATION
(a) Term. The term of this Agreement shall commence upon the execution
of this Agreement and shall terminate as hereinafter provided.
(b) Termination.
(i) This Agreement shall terminate automatically with respect to the
Fund in the event that the Fund is dissolved or terminated.
(ii) This Agreement may be terminated at any time in its entirety upon
the consent of all the parties hereto.
(iii) This Agreement may be terminated by the Fund or the Trading
Advisor upon 90 days' prior notice to the Fund and the Managing Member or
the Trading Advisor, as the case may be.
4. STANDARD OF LIABILITY AND INDEMNITY
(a) Standard of Liability. The Trading Advisor shall not be liable to
the Fund, the Managing Member or their respective Principals and Affiliates or
their successors or assigns for any act or failure to act taken or omitted by
the Trading Advisor in good faith in a manner reasonably believed to be in or
not opposed to the best interests of the Fund if such act or failure to act did
not constitute negligence, misconduct or a breach of this Agreement.
(b) Indemnity. (i) The Fund shall indemnify and hold harmless the
Trading Advisor and its Principals and Affiliates from and against any and all
losses, claims, damages,
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liabilities, costs and expenses (including, without limitation, attorneys' and
accountants' fees and disbursements), judgments and amounts paid in settlement
(collectively, "Losses"), to which an indemnified person may become subject
arising out of this Agreement, the transactions contemplated hereby or the fact
that the Trading Advisor is or was a trading advisor to the Fund, unless any
such Losses are the direct result of the Trading Advisor's failure to meet the
standard of liability applicable to it under SECTION 4(A).
(ii) The Trading Advisor shall indemnify and hold harmless the Fund
and the Managing Member from and against any and all Losses to which they may
become subject, if any such Losses are the direct result of the Trading
Advisor's failure to meet the standard of liability applicable to it under
SECTION 4(A).
(iii) The Trading Advisor shall not be indemnified arising from or out
of an alleged violation of federal or state securities laws unless (1) there has
been a successful adjudication on the merits of each count involving alleged
securities law violations as to the particular indemnitee, or (2) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee, or (3) a court of competent
jurisdiction approves a settlement of the claims against a particular indemnitee
and finds that indemnification of the settlement and related costs should be
made.
In the case of subparagraph (3) above, the party seeking
indemnification shall place before the court the position of the Securities and
Exchange Commission, the California Department of Corporations, the
Massachusetts Securities Division, the Pennsylvania Securities Commission, the
Tennessee Securities Division, the Texas Securities Board and any other state or
applicable regulatory authority with respect to the issue of indemnification for
securities law violations.
(c) Promptly after receipt by any of the indemnified parties under
this Agreement of notice of any action, arbitration, claim, demand, dispute,
lawsuit or other proceeding (each a "Proceeding"), the party seeking
indemnification (the "Indemnitee") shall notify the party from which
indemnification is sought (the "Indemnitor") in writing of the commencement
thereof if a claim with respect thereof is to be made under this Agreement. To
the extent that the Indemnitor has actual knowledge of the commencement of such
Proceeding, the failure to notify the Indemnitor shall not relieve such
Indemnitor from any indemnification liability which it may have to such
Indemnitee pursuant to this SECTION 4, and the omission to notify the Indemnitor
shall not relieve the Indemnitor from any obligation or liability which it may
have to any such Indemnitee otherwise than under this SECTION 4. The Indemnitor
shall be entitled to participate in the defense of any such Proceeding and to
assume the defense thereof with the assistance of counsel reasonably
satisfactory to the Indemnitee. In any such Proceeding, the Indemnitee shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the Indemnitee's own expense unless (i) otherwise agreed by
the Indemnitor and Indemnitee or (ii) the named parties to any such Proceeding
(including any impleaded parties) include both the Indemnitor and the
Indemnitee, and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them or the
existence of different or additional defenses (it being understood, however,
that the
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Indemnitor shall not be liable for legal fees or other expenses of more than one
separate firm of attorneys for all such Indemnitees, which firm shall be
designated in writing by such Indemnitees and be reasonably acceptable to the
Indemnitor). The Indemnitee will cooperate with the Indemnitor in connection
with any such Proceeding and shall make all personnel, books and records
relevant to the Proceeding available to the Indemnitor and grant such
authorizations or powers of attorney to the agents, representatives and counsel
of the Indemnitor as the Indemnitor may reasonably consider desirable in
connection with the defense of any such Proceeding.
(d) An Indemnitor shall not be liable under this SECTION 4 for any
settlement of any Proceeding effected without its consent with respect to which
indemnity may be sought hereunder.
(e) Any dispute as to whether a person or entity is entitled to
indemnification under SECTION 4 of this Agreement shall be determined by binding
arbitration in accordance with SECTION 17 of this Agreement.
(f) The provisions of this SECTION 4 shall survive the termination of
this Agreement.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) The Fund and the Managing Member represent, warrant and covenant
to the Trading Advisor with respect to the Fund as follows:
(i) it is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its formation, with full power and
authority to enter into and perform its obligations under this Agreement
and to conduct its business as described in this Agreement and in the
Prospectus;
(ii) this Agreement has been duly and validly authorized, executed and
delivered by it and is a valid and binding agreement of it enforceable in
accordance with its terms;
(iii) the performance by it of its obligations under this Agreement
will not conflict with or result in a breach of any of the terms or
provisions of, or in the imposition of any lien, charge or encumbrance upon
any of the property or assets of it pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of the property
or assets of it is subject, nor will any such action or performance result
in a violation of the provisions of its organizational documents or any
law, statute, order, rule or regulation of any court or governmental
authority or body having jurisdiction over it;
(iv) it will comply in all material respects with all laws, rules,
regulations and orders of any governmental agency or self-regulatory
organization applicable to its
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business, this Agreement and the matters to be discharged by it with
respect to the offering of the Units; and
(b) The Trading Advisor represents, warrants and covenants to the Fund
and the Managing Member as follows:
(i) it is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its formation, with full power and
authority to enter into and perform its obligations under this Agreement
and to conduct its business as described in this Agreement and in the
Prospectus;
(ii) this Agreement has been duly and validly authorized, executed and
delivered by the Trading Advisor and is a valid and binding agreement of
the Trading Advisor enforceable in accordance with its terms;
(iii) the performance by the Trading Advisor of its obligations under
this Agreement will not conflict with or result in a breach of any of the
terms or provisions of, or in the imposition of any lien, charge or
encumbrance upon any of the property or assets of the Trading Advisor
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trading Advisor is
a party or by which the Trading Advisor is bound or to which any of the
property or assets of the Trading Advisor is subject, nor will any such
action or performance result in a violation of the provisions of its
organizational documents or any law, statute, order, rule or regulation of
any court or governmental authority or body having jurisdiction over the
Trading Advisor; and
(iv) it will comply in all material respects with all laws, rules,
regulations and orders of any governmental agency or self-regulatory
organization applicable to its business and this Agreement.
(c) The Managing Member represents, warrants and covenants to the
Trading Advisor as follows:
(i) it is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its formation, with full power and
authority to enter into and perform its obligations under this Agreement
and to conduct its business as described in this Agreement and in the
Prospectus;
(ii) this Agreement has been duly and validly authorized, executed and
delivered by the Managing Member and is a valid and binding agreement of
the Managing Member enforceable in accordance with its terms;
(iii) the performance by the Managing Member of its obligations under
this Agreement will not conflict with or result in a breach of any of the
terms or provisions of, or in the imposition of any lien, charge or
encumbrance upon any of the property or
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assets of the Managing Member pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Managing Member is a party or by which the Managing Member is
bound or to which any of the property or assets of the Managing Member is
subject, nor will any such action or performance result in a violation of
the provisions of its organizational documents or any law, statute, order,
rule or regulation of any court or governmental authority or body having
jurisdiction over the Managing Member; and
(iv) it will comply in all material respects with all laws, rules,
regulations and orders of any governmental agency or self-regulatory
organization applicable to its business and this Agreement.
(d) Each party hereto will promptly notify the other parties of the
commencement of any Proceeding involving it or its Principals and Affiliates,
whether or not any such Proceeding also involves any other party hereto.
(e) All representations, warranties and covenants contained in this
Agreement shall be continuing during the term of this Agreement and shall
survive the termination of this Agreement with respect to any matter arising
while this Agreement was in effect. Each party hereby agrees that as of the date
of this Agreement it is, and during its term shall be, in compliance with its
representations, warranties and covenants herein contained. In addition, if at
any time any event occurs which would make, or tend to make, any of such
representations, warranties or covenants not true the affected party will use
its best efforts to promptly notify the other parties of such facts in the
manner provided below. All representations, warranties and covenants herein
contained shall inure to the benefit of the parties to whom it is addressed and
their respective heirs, executors, administrators, legal representatives,
successors and permitted assigns.
6. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof, and no other agreement, verbal
or otherwise, shall be binding on the parties hereto.
7. ASSIGNMENT
This Agreement may not be assigned by a party without the express
written consent of the other parties and any assignment without the consent of
all the parties hereto shall be null and void.
8. AMENDMENT
This Agreement may not be amended or modified except by the written
consent of all of the parties hereto.
9. SUCCESSORS
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This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns, and except as otherwise
provided in SECTION 4 and SECTION 5, above, no other person shall have any right
or obligation under this Agreement.
10. NOTICES
Except as otherwise provided herein, all notices, demands or requests
required to be made or delivered under this Agreement shall be effective only if
in writing and delivered personally, by facsimile or by mail, postage prepaid
(airmail if the addressee is in another country), to the respective addresses
below or to such other addresses as may be designated by the party entitled to
receive the same by notice similarly given and shall be deemed given by the
party required to provide notice when received by the party to whom notice is
required to be given:
If to the Fund, to it at:
c/o Man Investments (USA) Corp.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 XXX
Attn: Legal and Compliance
Fax No.: 0-000-000-0000
If to the Managing Member, to it at:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 XXX
Attn: Legal and Compliance
Fax. No.: 0-000-000-0000
If to the Trading Advisor, to it at:
Xxxxx Xxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attn: Managing Director
Fax No.: 000-00-000-000-0000
11. PARTIES INDEPENDENT; OTHER ACCOUNTS AND ACTIVITIES
(a) Each of the parties hereto shall for all purposes herein be deemed
to be an independent contractor and, except as otherwise expressly provided
herein, shall have no authority to act for or represent any other party in any
way or otherwise to be deemed an agent, joint venturer, partner or sponsor of
any other party.
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(b) The Trading Advisor's present business includes managing and
advising its assets, the assets of its Principals and Affiliates and
discretionary client accounts in the purchase and sale of futures and securities
and it will be managing and advising such accounts and assets for other clients
during the same period that it is managing and advising the Fund's account. The
services to be provided by the Trading Advisor hereunder are not to be deemed
exclusive. Subject to the terms of this Agreement, the Trading Advisor and its
Principals and Affiliates shall be free to trade for their own accounts and to
advise other persons and manage futures and securities trading accounts for
other persons during the term of this Agreement and to use the same or different
information and investment methodologies which it obtains, produces or utilizes
in the performance of services for the Fund. The parties hereto acknowledge that
performance results obtained for the Fund's account may differ from performance
results obtained for other accounts under the Trading Advisor's management and
that the Trading Advisor may have an incentive to favor certain accounts over
the Fund's account.
12. SURVIVAL
The provisions of this Agreement shall survive the termination of this
Agreement with respect to any matter arising while this Agreement was in effect.
13. HEADINGS
Headings to sections herein are for the convenience of the parties
only and are not intended to be or to affect the meaning or interpretation of
this Agreement.
14. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument. Signatures on this Agreement may be communicated by
facsimile transmission and shall be binding upon the parties so transmitting
their signatures. Counterparts with original signatures shall be provided to the
other parties following the applicable facsimile transmission; provided, that
the failure to provide the original counterpart shall have no effect on the
validity or the binding nature of this Agreement.
15. WAIVER OF BREACH; CURE OF BREACH
The waiver by a party of a breach of any provisions of this Agreement
shall not operate or be construed as a waiver of any subsequent breach by a
party. The failure of a party to insist upon a strict adherence to any provision
of this Agreement shall not constitute a waiver or thereafter deprive such party
of the right to insist upon a strict adherence. In the event that a party
becomes aware that it is in breach of any of its representations, warranties,
covenants or agreements set forth in this Agreement, the affected party will use
its best efforts to promptly take such actions as it deems necessary, in its
sole discretion, to cure such breach.
16. GOVERNING LAW
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This Agreement shall be governed by and construed in accordance with
the laws of England without giving effect to the principles of conflicts of
laws.
17. ARBITRATION
The parties agree that all controversies which may arise in connection
with any transaction contemplated by this Agreement or the construction,
performance or breach of this Agreement shall be determined by arbitration, to
be held in the City of Chicago, State of Illinois, USA, unless otherwise agreed
to by the parties hereto, and in accordance with the rules then obtaining of the
National Futures Association, or if no such rule is in effect or if jurisdiction
is declined, then in accordance with the rules then obtaining of the American
Arbitration Association; provided, however, that the arbitrator(s) shall be
knowledgeable in industry standards and practices and the matters giving rise to
the dispute, that the arbitrator(s) shall not have the power and authority to
award punitive damages, that the authority of the arbitrator(s) shall be limited
to construing and enforcing the terms and conditions of this Agreement as
expressly set forth herein and that the arbitrator(s) shall state their reasons
for their award and their legal and factual conclusions underlying the award in
a written opinion. The award of the arbitrator(s), or a majority of them, shall
be final, and judgment upon the award may be confirmed and entered in any court,
state or Federal, having jurisdiction.
18. CONSENT TO JURISDICTION
Except as otherwise provided in SECTION 17, above, each party hereto
expressly and irrevocably agrees: (a) that it waives any objection, and
specifically consents, to venue in the courts located in London, England, so
that any action at law or in equity may be brought and maintained in any such
court; and (b) that service of process in any such action may be effected
against such party in any manner permitted by applicable rules of civil
procedure or rules of the courts of London, England. In addition each party
hereto expressly and irrevocably waives, in respect of any action brought in any
court located in London, England or any resulting judgment, any objection, and
hereby specifically consents, to the personal and subject matter jurisdiction of
any such court, and agrees not to seek to change the situs of such action or to
assert that any other court in any other jurisdiction is a more suitable forum
for the hearing and adjudication of any claim or dispute raised in such action.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered for
and on behalf of the undersigned as of the day and year first above written.
MAN-AHL 130, LLC
By: Man Investments (USA) Corp.
Its Managing Member
By:
---------------------------------
Name:
Title:
MAN INVESTMENTS (USA) CORP.
By:
---------------------------------
Name:
Title:
MAN INVESTMENTS LIMITED
By:
---------------------------------
Name:
Title:
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