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EXHIBIT (g)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made the ___th day of [September,] 1998, by and
between Wynstone Partners, L.P., a Delaware limited partnership (the
"Partnership"), and CIBC Xxxxxxxxxxx Advisers, L.L.C., a Delaware limited
liability company (the "Adviser"):
W I T N E S S E T H:
WHEREAS, the Partnership intends to engage in business as a
closed-end, non-diversified management investment company and is registered as
such under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended, and will engage in the
business of acting as an investment adviser; and
WHEREAS, the Partnership desires to retain the Adviser to
render investment advisory services to the Partnership in the manner and on the
terms and conditions hereinafter set forth; and
WHEREAS, the Adviser desires to be retained to perform such
services on said terms and conditions:
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, the Partnership and the Adviser agree as
follows:
1. The Partnership hereby retains the Adviser to act as its
investment adviser and, subject to the supervision and control of the Individual
General Partners of the Partnership (the "IGPs"), to manage the investment
activities of the Partnership as hereinafter set forth. Without limiting the
generality of the foregoing, the 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 Partnership in a manner consistent with
the investment objective, policies and restrictions of the Partnership, as set
forth in the Confidential Memorandum of the Partnership and as may be adopted
from time to time by the IGPs, and applicable laws and regulations; determine
the securities to be purchased, sold or otherwise disposed of by the Partnership
and the timing of such purchases, sales and dispositions; and take such further
action, including the placing of purchase and sale orders and the voting of
securities on behalf of the Partnership, as the Adviser shall deem necessary or
appropriate. The Adviser shall furnish to or place at the disposal of the
Partnership such of the information, evaluations, analyses and opinions
formulated or obtained by the Adviser in the discharge of its duties as the
Partnership may, from time to time, reasonably request.
2. Without limiting the generality of paragraph 1 hereof, the
Adviser shall be authorized to open, maintain and close accounts in the name and
on behalf of the Partnership with brokers and dealers as it determines are
appropriate; to select and place
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orders with brokers, dealers or other financial intermediaries for the
execution, clearance or settlement of any transactions on behalf of the
Partnership on such terms as the Adviser considers appropriate and which are
consistent with the policies of the Partnership; and, subject to any policies
adopted by the IGPs and to the provisions of applicable law, to agree to such
commissions, fees and other charges on behalf of the Partnership 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
Partnership 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 Adviser may use, subject to such procedures as may be adopted by the
IGPs, affiliates of the Adviser as brokers to effect the Partnership's
securities transactions and the Partnership may pay such commissions to such
brokers in such amounts as are permissible under applicable law.
3. The 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 Adviser or
furnished to the Partnership under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Adviser shall be
deemed to include persons employed or otherwise retained by the Adviser or made
available to the Adviser by its members.
4. The Partnership will, from time to time, furnish or
otherwise make available to the Adviser such financial reports, proxy
statements, policies and procedures and other information relating to the
business and affairs of the Partnership as the Adviser may reasonably require in
order to discharge its duties and obligations hereunder.
5. The Adviser shall bear the cost of rendering the services
to be performed by it under this Agreement.
6. The Partnership assumes and shall pay or cause to be paid
all expenses of the Partnership not expressly assumed by the Adviser under this
Agreement, including without limitation: all costs and expenses directly related
to portfolio transactions and positions for the Partnership's account,
including, but not limited to, brokerage commissions, research fees, interest
and commitment fees on loans and debit balances, borrowing charges on securities
sold short, dividends on securities sold but not yet purchased, custodial fees,
margin fees, transfer taxes and premiums, taxes withheld on foreign dividends
and indirect expenses from investments in investment funds; all costs and
expenses associated with the organization and registration of the Partnership,
certain offering costs and the costs of compliance with any applicable Federal
or state laws; attorneys' fees and disbursements associated with updating the
Partnership's Confidential Memorandum and subscription documents (the "Offering
Materials"); the costs of printing the Offering Materials; the costs of
distributing the Offering Materials to prospective investors; and attorneys'
fees and disbursements associated with the review of subscription documents
executed and delivered to the Partnership in connection with offerings of
interests in the Partnership of the Partnership; the costs and expenses of
holding meetings of the IGPs and any meetings of limited partners of the
Partnership; fees and disbursements of any attorneys,
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accountants, auditors and other consultants and professionals engaged on behalf
of the Partnership; the administrative services fee paid to CIBC Xxxxxxxxxxx
Corp. pursuant to the Administrative Services Agreement and the fees of
custodians and persons providing administrative services to the Partnership; the
costs of a fidelity bond and any liability insurance obtained on behalf of the
Partnership or the IGPs; all expenses of computing the Partnership's net asset
value, including any equipment or services obtained for these purposes; and all
charges for equipment or services used in communicating information regarding
the Partnership's transactions among the Adviser and any custodian or other
agent engaged by the Partnership.
7. As full compensation for the services provided to the
Partnership and the expenses assumed by the Adviser under this Agreement, the
Adviser shall be entitled to be the Special Advisory Limited Partner of the
Partnership pursuant to the terms of the Limited Partnership Agreement of the
Partnership (the "Partnership Agreement"). As the Special Advisory Limited
Partner, the Adviser shall be entitled to receive an incentive allocation in
accordance with the terms and conditions of Section 5.8 of the Partnership
Agreement.
8. The Adviser will use its best efforts in the supervision
and management of the investment activities of the Partnership and in providing
services hereunder, but in the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of its obligations hereunder, neither the
Adviser nor any of its members, directors, officers or employees thereof, nor
any of their affiliates, executors, heirs, assigns, successors or other legal
representatives (collectively, the "Affiliates") shall be liable to the
Partnership for any error of judgment for any mistake of law or for any act or
omission by the Adviser and its Affiliates.
9. (a) The Partnership shall indemnify the Adviser, its
members, directors, officers or employees and any of their affiliates,
executors, heirs, assigns, 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 in respect of the
Partnership, except those resulting from the willful malfeasance, 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 unlawful
(collectively, "disabling conduct"). Indemnification shall be made following:
(i) a final decision on the merits by a court or other body before whom 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 IGPs who are not parties
to the proceeding or (B) legal counsel selected by a vote of a majority of the
IGPs in a written advice, that the Indemnified Person is entitled to
indemnification hereunder. The Partnership 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 Adviser agrees, and each other Indemnified Person will
agree as a condition to any such advance, that in the event it or he receives
any such advance, it or he
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shall reimburse the Partnership for such fees, costs and expenses to the extent
that it shall be determined that it or he 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
Adviser or any affiliated person of the 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 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 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 shall remain in effect for an initial term
expiring [September ___,] 2000, and shall continue in effect from year to year
thereafter provided such continuance is approved at least annually by the vote
of a majority of the outstanding voting securities of the Partnership, as
defined by the 1940 Act and the rules thereunder, or by the IGPs; and provided
that in either event such continuance is also approved by a majority of the IGPs
who are not parties to this Agreement or "interested persons" (as defined by the
0000 Xxx) of any such party (the "Independent IGPs"), by vote cast in person at
a meeting called for the purpose of voting on such approval. The Partnership may
at any time, without payment of any penalty, terminate this Agreement upon sixty
days' prior written notice to the Adviser, either by majority vote of the IGPs
or by the vote of a majority of the outstanding voting securities of the
Partnership (as defined by the 1940 Act and the rules thereunder). The Adviser
may at any time, without payment of penalty, terminate this Agreement upon sixty
days' prior written notice to the Partnership. This Agreement shall
automatically terminate in the event of its assignment (to the extent required
by the 1940 Act and the rules thereunder) unless such automatic termination
shall be prevented by an exemptive order of the Securities and Exchange
Commission.
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
IGPs and by a majority of the Independent IGPs in accordance with the provisions
of Section 15(c) of the 1940 Act and the
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rules thereunder. If required by the 1940 Act, any amendment shall also be
required to be approved by such vote of limited partners of the Partnership as
is required 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 Partnership represents that this Agreement has been
duly approved by the IGPs, including a majority of the Independent IGPs, and by
the sole initial limited partner of the Partnership, in accordance with the
requirements of the 1940 Act and the rules thereunder.
16. The parties to this Agreement agree that the obligations
of the Partnership under this Agreement shall not be binding upon any of the
IGPs, limited partners of the Partnership or any officers, employees or agents,
whether past, present or future, of the Partnership, individually, but are
binding only upon the assets and property of the Partnership.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the day and year first above written.
WYNSTONE PARTNERS, L.P.
By:
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Attest: Name:
------------------------- Title: Individual General Partner
CIBC XXXXXXXXXXX ADVISERS, L.L.C.
By: CIBC Xxxxxxxxxxx Corp.,
its Managing Member
By:
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Attest: Xxxxxx X. Xxxxxx
------------------------ Managing Director
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