Exhibit (g)(3)
SUB-INVESTMENT ADVISORY AGREEMENT
This AGREEMENT, dated January [ ], 2002, by and between Advantage
Advisers Multi-Sector Fund I, a Delaware business trust (the "Fund"),
Advantage Advisers, L.L.C., a Delaware limited liability company (the
"Investment Adviser"), and Kilkenny Capital Management, a Delaware limited
liability company (the "Sub-Adviser").
WHEREAS, the Investment Adviser has agreed to furnish investment
advisory services to the Fund, a non-diversified, closed-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Fund has heretofore filed a Registration Statement on
Form N-2 with the Securities and Exchange Commission (the "SEC") (as
amended or supplemented from time to time, the "Registration Statement")
which includes a prospectus (the "Prospectus") and a statement of
additional information (the "Statement of Additional Information");
WHEREAS, the Investment Adviser and the Fund each wish to retain
the Sub-Adviser to provide the Adviser and the Fund with certain
sub-advisory services as described below in connection with Investment
Adviser's advisory activities on behalf of the Fund;
WHEREAS, the investment advisory agreement between the Investment
Adviser and the Fund dated ________________ (such agreement or the most
recent successor agreement between such parties relating to advisory
services to the Fund is referred to herein as the "Advisory Agreement")
contemplates that the Investment Adviser may sub-contract investment
advisory services with respect to the Fund to one or more sub-advisers
pursuant to one or more sub-investment advisory agreements agreeable to the
Fund and approved in accordance with the provisions of the 1940 Act; and
WHEREAS, this agreement has been approved in accordance with the
provisions of the 1940 Act and the Sub-Adviser is willing to provide such
services upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein contained and other good and valuable consideration, the
receipt of which is hereby acknowledged, it is agreed by and between the
parties hereto as follows:
Section 1. General. The Investment Adviser and the Fund hereby
appoint the Sub-Adviser to act as sub-adviser with respect to the
healthcare/ biotechnology Separate Investment Account (as defined in the
Prospectus) and the Sub-Adviser accepts such appointment and agrees, all as
fully set forth herein, to act as a sub-adviser to the Fund with respect to
the investment of the healthcare/biotechnology Separate Investment
Account's assets and to supervise and arrange for the day-to-day operations
of the healthcare/biotechnology Separate Investment Account and the
purchase of securities for and the sale of securities held in the
healthcare/biotechnology Separate Investment Account.
Section 2. Duties and Obligations of the Sub-Adviser with Respect
to Investment of Assets of the Fund. Subject to the succeeding provisions
of this Section 2 and the oversight and supervision of the Investment
Adviser and subject to the direction and control of the Fund's Board of
Trustees, the Sub-Adviser shall:
(a) act as investment adviser for, and invest and
reinvest, the healthcare/biotechnology Separate Investment Account's assets
and, in connection therewith, have complete discretion in purchasing and
selling securities and other assets for the healthcare/biotechnology
Separate Investment Account and in voting, exercising consents and
exercising all other rights appertaining to such securities and other
assets on behalf of the Fund consistent with the investment objective,
policies and restrictions of the Fund, subject to the oversight and
supervision of the Investment Adviser and to the direction and control of
the Fund's Board of Trustees;
(b) supervise continuously the investment program of the
healthcare/biotechnology Separate Investment Account and the composition of
its investment portfolio;
(c) arrange, subject to the provisions of paragraph 4
hereof, for the purchase and sale of securities and other assets held in
the healthcare/biotechnology Separate Investment Account; and
(d) provide, or arrange to have provided, investment
research to the Fund.
Section 3. [Reserved].
Section 4. Covenants. In the performance of its duties under this
Agreement, the Sub-Adviser shall at all times:
(a) Conform to, and act in accordance with, any
requirements imposed by: (i) the provisions of the 1940 Act and the
Advisers Act, and all applicable Rules and Regulations of the SEC; (ii) any
other applicable provisions of law; (iii) the provisions of the Amended and
Restated Agreement and Declaration of Trust and By-laws of the Fund, as
such documents may be amended from time to time; (iv) the investment
strategy and investment policies of the Fund as set forth in the
Registration Statement; and (v) any policies and determinations of the
Board of Trustees of the Fund.
(b) Without limiting the generality of paragraph (a)
hereof, 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 either directly
with the issuer or with any broker or dealer. Subject to the other
provisions of this paragraph, in placing orders with brokers and dealers,
the Sub-Adviser will seek to obtain the best price and execution, taking
into account factors such as price, size of order, difficulty of execution
and operational facilities of a brokerage firm, the scope and quality of
brokerage services provided, and in the case of transactions effected with
unaffiliated brokers, the firm's risk in positioning a block of securities.
Consistent with this principle, the Sub-Adviser may place brokerage orders
with brokers (including affiliates of the Fund) that provide supplemental
research, market and statistical information, including advice as to the
value of securities, the advisability of investing in, purchasing or
selling securities, and the availability of securities or purchasers or
sellers of securities, and furnish analyses and reports concerning issuers,
industries, securities, economic factors and trends, portfolio strategy and
the performance of accounts. Information and research received from such
brokers will be in addition to, and not in lieu of, the services required
to be performed by the Investment Adviser hereunder. A commission paid to
such brokers may be higher than that which another qualified broker would
have charged for effecting the same transaction, provided that the
Sub-Adviser determines in good faith that such commission is reasonable in
terms either of the transaction or the overall responsibility of the
Sub-Adviser to the Fund and its other clients and that the total
commissions paid by the Fund will be reasonable in relation to the benefits
to the Fund over the long-term. In addition, the Sub-Adviser is authorized
to take into account the sale of shares of the Fund in allocating purchase
and sale orders for portfolio securities to brokers or dealers (including
brokers and dealers that are affiliated with the Sub-Adviser, the
Investment Adviser or another of the Fund's sub-advisers); provided that
the Sub-Adviser believes that the quality of the transaction and the
commission are comparable to what they would be with other qualified firms.
In no instance, however, will the Fund's securities be purchased from or
sold to the Investment Adviser, or any affiliated person thereof, except to
the extent permitted by the SEC or by applicable law.
(c) Maintain books and records with respect to the
healthcare/biotechnology Separate Investment Account's securities
transactions and will render to the Investment Adviser and the Board of
Trustees such periodic and special reports as they may request.
(d) Keep the Fund and the Investment Adviser informed of
developments materially affecting the healthcare/biotechnology Separate
Investment Account and shall, on its own initiative, furnish to the Fund
from time to time whatever information the Sub-Adviser believes appropriate
for this purpose. The Sub-Adviser will periodically communicate to the
Investment Adviser, at such times as the Investment Adviser may direct,
information concerning the purchase and sale of securities for the
healthcare/biotechnology Separate Investment Account, including: (i) the
name of the issuer, (ii) the amount of the purchase or sale, (iii) the name
of the broker or dealer, if any, through which the purchase or sale is
effected, (iv) the CUSIP number of the instrument, if any, and (v) such
other information as the Investment Adviser may reasonably require for
purposes of fulfilling its obligations to the Fund under the Advisory
Agreement.
(e) Will treat confidentially and as proprietary
information of the Fund all records and other information relative to the
Fund, and pertaining to the Fund's prior, current or potential shareholders
with respect to their investment in the Fund, in a manner consistent with
the Privacy Notification Policy of the Fund set forth in the Registration
Statement (as amended or supplemented from time to time) and will not use
such records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to
and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Investment Adviser
may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Fund.
(f) Will do and perform any such further acts and things
related to the management of the healthcare/biotechnology Separate
Investment Account or the performance of any other duty, obligation or
agreement hereunder as the Investment Adviser may from time to time
reasonably request.
(g) If any of its affiliates conducts a commercial
banking operation, (i) it will maintain a policy and practice of conducting
its investment advisory services hereunder independently of said commercial
banking operations and (ii) when it makes investment recommendations for
the healthcare/biotechnology Separate Investment Account, its investment
advisory personnel will not inquire or take into consideration whether the
issuer of securities proposed for purchase or sale for the
healthcare/biotechnology Separate Investment Account are customers of the
commercial department of its affiliates.
Section 5. Services Not Exclusive. Nothing in this Agreement shall
prevent the Sub-Adviser or any member, manager, officer, employee or other
affiliate thereof from acting as investment adviser for any other person,
firm or corporation, or from engaging in any other lawful activity, and
shall not in any way limit or restrict the Sub-Adviser or any of its
members, manager, officers, employees or agents from buying, selling or
trading any securities for its or their own accounts or for the accounts of
others for whom it or they may be acting; provided, however, that the
Sub-Adviser will undertake no activities which, in its judgment, will
adversely affect the performance of its obligations under this Agreement.
Section 6. Books and Records. In compliance with the requirements
of Rule 31a-3 under the 1940 Act, the Sub-Adviser hereby agrees that all
records which it maintains for the Fund are the property of the Fund and
further agrees to surrender promptly to the Fund any such records upon the
Fund's request. The Investment Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to
be maintained by Rule 31a-1 under the 1940 Act.
Section 7. Agency Cross Transactions. From time to time, the
Sub-Adviser or brokers or dealers affiliated with it may find themselves in
a position to buy for certain of their brokerage clients (each an
"Account") securities which the Sub-Adviser's investment advisory clients
wish to sell, and to sell for certain of their brokerage clients securities
which advisory clients wish to buy. Where one of the parties is an advisory
client, the Sub-Adviser or the affiliated broker or dealer cannot
participate in this type of transaction (known as a cross transaction) on
behalf of an advisory client and retain commissions from one or both
parties to the transaction without the advisory client's consent. This is
because in a situation where the Sub-Adviser is making the investment
decision (as opposed to a brokerage client who makes his own investment
decisions), and the Sub-Adviser or an affiliate is receiving commissions
from both sides of the transaction, there is a potential conflicting
division of loyalties and responsibilities on the Sub-Adviser's part
regarding the advisory client. The SEC has adopted a rule under the
Advisers Act which permits the Sub-Adviser or its affiliates to participate
on behalf of an Account in agency cross transactions if the advisory client
has given written consent in advance. By execution of this Agreement, the
Fund authorizes the Sub-Adviser or its affiliates to participate in agency
cross transactions involving an Account. The Fund may revoke its consent at
any time by written notice to the Sub-Adviser.
Section 8. Expenses. During the term of this Agreement, the
Sub-Adviser will bear all costs and expenses of its employees and any
overhead incurred in connection with its duties hereunder and shall bear
the costs of any salaries or trustees fees of any officers or trustees of
the Fund who are affiliated persons (as defined in the 0000 Xxx) of the
Sub-Adviser.
Section 9. Compensation of the Investment Adviser. As compensation
for all services rendered by the Sub-Adviser hereunder, the Investment
Adviser from the "Management Fee" (as defined in the Advisory Agreement)
will pay the Sub-Adviser an amount equal to 0.25% of the average daily net
assets of the healthcare/biotechnology Separate Investment Account. Such
fee will be due and payable by the Investment Advisor in arrears within
[ten] business days after the receipt thereof from the Fund.
Section 10. Indemnity.
(a) The Fund hereby agrees to indemnify the Sub-Adviser,
and each of the Sub-Adviser's members, managers, officers, employees,
agents, associates and controlling persons and the directors, partners,
members, officers, employees and agents thereof (including any individual
who serves at the Sub-Adviser's request as director, officer, partner,
member, trustee or the like of another entity) (each such person being an
"Indemnitee") against any liabilities and expenses, including amounts paid
in satisfaction of judgments, in compromise or as fines and penalties, and
counsel fees (all as provided in accordance with applicable state law)
reasonably incurred by such Indemnitee in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or
criminal, before any court or administrative or investigative body in which
such Indemnitee may be or may have been involved as a party or otherwise or
with which such Indemnitee may be or may have been threatened, while acting
in any capacity set forth herein or thereafter by reason of such Indemnitee
having acted in any such capacity, except with respect to any matter as to
which such Indemnitee shall have been adjudicated not to have acted in good
faith in the reasonable belief that such Indemnitee's action was in the
best interest of the Fund and furthermore, in the case of any criminal
proceeding, so long as such Indemnitee had no reasonable cause to believe
that the conduct was unlawful; provided, however, that (1) no Indemnitee
shall be indemnified hereunder against any liability to the Fund or its
shareholders or any expense of such Indemnitee arising by reason of (i)
willful misfeasance, (ii) bad faith, (iii) gross negligence or (iv)
reckless disregard of the duties involved in the conduct of such
Indemnitee's position (the conduct referred to in such clauses (i) through
(iv) being sometimes referred to herein as "disabling conduct"), (2) as to
any matter disposed of by settlement or a compromise payment by such
Indemnitee, pursuant to a consent decree or otherwise, no indemnification
either for said payment or for any other expenses shall be provided unless
there has been a determination that such settlement or compromise is in the
best interests of the Fund and that such Indemnitee appears to have acted
in good faith in the reasonable belief that such Indemnitee's action was in
the best interest of the Fund and did not involve disabling conduct by such
Indemnitee and (3) with respect to any action, suit or other proceeding
voluntarily prosecuted by any Indemnitee as plaintiff, indemnification
shall be mandatory only if the prosecution of such action, suit or other
proceeding by such Indemnitee was authorized by a majority of the full
Board of Trustees of the Fund.
(b) The Fund shall make advance payments in connection
with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Fund receives a written
affirmation of the Indemnitee's good faith belief that the standard of
conduct necessary for indemnification has been met and a written
undertaking to reimburse the Fund unless it is subsequently determined that
such Indemnitee is entitled to such indemnification and if the trustees of
the Fund determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must
be met: (A) the Indemnitee shall provide a security for such
Indemnitee-undertaking, (B) the Fund shall be insured against losses
arising by reason of any lawful advance, or (C) a majority of a quorum
consisting of trustees of the Fund who are neither "interested persons" of
the Fund (as defined in Section 2(a)(19) of the 0000 Xxx) nor parties to
the proceeding ("Disinterested Non-Party Trustees") or an independent legal
counsel in a written opinion, shall determine, based on a review of readily
available facts (as opposed to a full trial-type inquiry), that there is
reason to believe that the Indemnitee ultimately will be found entitled to
indemnification.
(c) All determinations with respect to indemnification
hereunder shall be made (1) by a final decision on the merits by a court or
other body before whom the proceeding was brought that such Indemnitee is
not liable or is not liable by reason of disabling conduct, or (2) in the
absence of such a decision, by (i) a majority vote of a quorum of the
Disinterested Non-Party Trustees of the Fund, or (ii) if such a quorum is
not obtainable or, even if obtainable, if a majority vote of such quorum so
directs, independent legal counsel in a written opinion. All determinations
that advance payments in connection with the expense of defending any
proceeding shall be authorized shall be made in accordance with the
immediately preceding clause (2) above.
The rights accruing to any Indemnitee under these provisions shall
not exclude any other right to which such Indemnitee may be lawfully
entitled.
Section 11. Limitation on Liability.
(a) The Sub-Adviser will not be liable for any error of
judgment or mistake of law or for any loss suffered by Sub-Adviser or by
the Fund in connection with the performance of this Agreement, except a
loss resulting from a breach of fiduciary duty with respect to the receipt
of compensation for services or a loss resulting from willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties
or from reckless disregard by it of its duties under this Agreement.
(b) Notwithstanding anything to the contrary contained in
this Agreement, the parties hereto acknowledge and agree that, as provided
in Section 5.4 of Article V of the Amended and Restated Agreement and
Declaration of Trust of the Fund, this Agreement is executed by the
Trustees and/or officers of the Fund, not individually but as such Trustees
and/or officers of the Fund, and the obligations hereunder are not binding
upon any of the Trustees or shareholders of the Fund individually, but bind
only the estate of the Fund.
Section 12. Duration and Termination. This Agreement shall become
effective as of the date hereof and, unless sooner terminated with respect
to the Fund as provided herein, shall continue in effect for a period of
two years. Thereafter, if not terminated, this Agreement shall continue in
effect with respect to the Fund for successive periods of 12 months;
provided that such continuance is specifically approved at least annually
by both (a) the vote of a majority of the Fund's Board of Trustees or the
vote of a majority of the outstanding voting securities of the Fund at the
time outstanding and entitled to vote, and (b) the vote of a majority of
the Trustees who are not parties to this Agreement or interested persons of
any party to this Agreement, cast in person at a meeting called for the
purpose of voting on such approval. Notwithstanding the foregoing, this
Agreement may be terminated by the Fund at any time, without the payment of
any penalty, upon giving the Sub-Adviser 60 days' written notice (which
notice may be waived by the Sub-Adviser); provided that such termination by
the Fund shall be directed or approved by the vote of a majority of the
Trustees of the Fund in office at the time or by the vote of the holders of
a majority of the voting securities of the Fund at the time outstanding and
entitled to vote, or by the Sub-Adviser on 60 days' written notice (which
notice may be waived by the Fund). This Agreement will also immediately
terminate in the event of its assignment. (As used in this Agreement, the
terms "majority of the outstanding voting securities," "interested person"
and "assignment" shall have the meanings provided such terms in the 1940
Act and the rules thereunder.)
Section 13. Notices. Any notice under this Agreement shall be in
writing to the other party at such address as the other party may designate
from time to time for the receipt of such notice and shall be deemed to be
received on the earlier of the date actually received or on the fourth day
after the postmark if such notice is mailed first class postage prepaid.
Section 14. Amendment of this Agreement. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought. Any amendment of
this Agreement shall be subject to the 1940 Act.
Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware for
contracts to be performed entirely therein without reference to choice of
law principles thereof and in accordance with the applicable provisions of
the 1940 Act.
Section 16. Miscellaneous. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their construction or
effect. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding
on, and shall inure to the benefit of the parties hereto and their
respective successors.
Section 17. Counterparts. This Agreement may be executed in
counterparts by the parties hereto, each of which shall constitute an
original counterpart, and all of which, together, shall constitute one
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers, all as of the
day and the year first above written.
ADVANTAGE ADVISERS MULTI-SECTOR FUND I
By:
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Name:
Title:
ADVANTAGE ADVISERS, L.L.C.
By:
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Name:
Title:
KILKENNY CAPITAL MANAGEMENT, L.L.C.
By:
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Name:
Title:
