Exhibit (k)(1)
MANAGEMENT AND ADMINISTRATION AGREEMENT
BY AND BETWEEN
PW FUND ADVISOR, L.L.C.
AND
PW EUCALYPTUS FUND, L.L.C.
THIS MANAGEMENT AND ADMINISTRATION AGREEMENT (the "Agreement") is made
as of this 8th day of September, 1999, by and between PW Fund Advisor, L.L.C.
("PWFA") and PW Eucalyptus Fund, L.L.C. (the "Fund").
WHEREAS, PWFA is in the business of providing, and the Fund wishes
PWFA to provide, certain management and administrative services;
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. APPOINTMENT OF PWFA.
(a) The Fund hereby appoints, and PWFA hereby accepts appointment, to
serve as the Fund's management company. In such capacity, PWFA agrees to provide
certain management (but not investment management) and administrative services
to the Fund. These services shall include:
(i) the provision of office space, telephone and utilities;
(ii) the provision of administrative and secretarial, clerical and
other personnel as necessary to provide the services required to
be provided under this Agreement;
(iii) the general supervision of the entities which are retained by
the Fund to provide administrative services and custody services
to the Fund;
(iv) the handling of investor inquiries regarding the Fund and
providing investors with information concerning their investment
in the Fund and capital account balances;
(v) monitoring relations and communications between investors and the
Fund;
(vi) overseeing the drafting and updating of disclosure documents
relating to the Fund and assisting in the distribution of all
offering materials to investors;
(vii) maintaining and updating investor information, such as change of
address and employment;
(viii) overseeing the distribution and acceptance of investor
applications and confirming the receipt of such applications and
funds;
(ix) overseeing the provision of investment advice to the Fund by PW
Eucalyptus Management, L.L.C., the manager of the Fund (or any
successor adviser) (the "Manager"), and monitoring compliance by
the Manager with applicable investment policies and restrictions
of the Fund;
(x) coordinating and organizing meetings of the Fund's board of
directors (the "Board" and its members, the "Directors");
(xi) preparing materials and reports for use in connection with
meetings of the Board; and
(xii) reviewing and approving all regulatory filings required under
applicable law.
(b) All other services to be performed, and expenses related thereto,
in the operation of the Fund shall be borne by the Fund.
(c) Notwithstanding the appointment of PWFA to provide services
hereunder, the Board shall remain responsible for supervising and controlling
the management, business and affairs of the Fund.
2. PWFA FEE; REIMBURSEMENT OF EXPENSES.
(a) In consideration for the provision by PWFA of its services
hereunder, the Fund will pay PWFA a monthly management fee of .1042% (1.25% on
an annualized basis) of the Fund's "net assets," excluding assets attributable
to the Manager's capital account (the "Fee"). "Net assets" shall equal the total
value of all assets of the Fund, less an amount equal to all accrued debts,
liabilities and obligations of the Fund calculated before giving effect to any
repurchase of interests.
(b) The Fee will be computed based on the net assets of the Fund as of
the start of business on the first business day of each month, after adjustment
for any applications effective on such date, and will be due and payable in
arrears within five days after the end of such month. The Fee will be charged in
each fiscal period to the capital accounts of the Fund's investors in proportion
to their capital accounts at the beginning of such fiscal period. In the event
that the Fee is payable in respect of a partial month, such fee will be
appropriately pro-rated.
(c) PWFA is responsible for all costs and expenses associated with the
provision of its services hereunder. The Fund shall pay all other expenses
associated with the conduct of its business, including the costs and expenses of
holding any meetings of the Board that are regularly scheduled, permitted or
required to be held under the terms of the Fund's limited liability company
agreement, the Investment Company Act of 1940, as amended (the "1940 Act"), or
other applicable law, and the fees and disbursements of any attorneys engaged on
behalf of the Fund.
(d) The Fund understands that PWFA may pay a portion of the fees
received by it hereunder to OrbiMed Advisers Inc. or an affiliate.
3. LIABILITY. PWFA will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund or its investors in
connection with the performance of its duties under this Agreement, except a
loss resulting from willful misfeasance, bad faith or gross negligence on PWFA's
part (or on the part of an officer or employee of PWFA) in the performance of
its duties hereunder or reckless disregard by it of its duties under this
Agreement.
4. EFFECTIVE DATE AND TERMINATION. This Agreement shall become
effective as of the date first noted above, and shall remain in effect for an
initial term of two years from the date of its effectiveness. This Agreement may
be continued in effect from year to year thereafter provided that each such
continuance is approved by the Board, including the vote of a majority of the
Directors who are not "interested persons" of the Fund, as defined by the 1940
Act. This Agreement may be terminated by PWFA, by the Board or by vote of a
majority of the outstanding voting securities of the Fund at any time, in each
case upon not less than 60 days' prior written notice. This Agreement shall also
terminate automatically in the event of its "assignment," as such term is
defined by the 1940 Act.
5. ENTIRE AGREEMENT. This Agreement embodies the entire understanding
of the parties. This Agreement cannot be altered, amended, supplemented, or
abridged, or any provisions waived, except by written agreement of the parties.
6. CHOICE OF LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York and the 1940 Act. In the event
the laws of New York conflict with the 1940 Act, the applicable provisions of
the 1940 Act shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PW FUND ADVISOR, L.L.C.
By:
Name:
Title:
PW EUCALYPTUS FUND, L.L.C.
By:
Name:
Title:
