Exhibit 8
OPTIMA LIFE SCIENCES LIMITED
AND
PILLAR INVESTMENT LIMITED
MANAGEMENT AGREEMENT
Management Agreement
THIS AGREEMENT is made the 20th day of August 2003
BETWEEN
1. OPTIMA LIFE SCIENCES LIMITED, a company incorporated with number
108584C in and under the laws of the Isle of Man whose registered
office is at St. James's Xxxxxxxx, 64a Athol Street, Xxxxxxx, IMI
1JE., British Isles("the Company"); and
2. PILLAR INVESTMENT LIMITED, a company incorporated with number 51575C
in and under the laws of the Isle of Man whose registered office is
at St. James's Xxxxxxxx, 64a Athol Street, Xxxxxxx, IM I 1JE.,
British Isles("the Manager"); and
WHEREAS:
(A) The Company will be recognized as an Exempt International Fund in the Isle
of Man;
(B) The articles of association of the Company empower the Directors to a
Manager to carry out management and administrative duties relating to the
business of the Company; and
(C) The Directors of the Company wish to appoint the Manager to act as Manager
of the Company and to undertake certain duties for the Company as
hereinafter contained.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this agreement the following words and expressions bear the
following meanings:
"Articles" means the memorandum and articles of association for the
time being of the Company and any reference herein to an
Article shall be taken to refer to the Articles unless
otherwise specified;
"Auditors" means the auditors for the time being of the Company;
"Custodian" means any such person for the time being acting as
Custodian of the Company's assets;
"Custody Agreement" means any agreement for the time being
subsisting to which the Company or the Custodian Agent
are parties and relating to the appointment and duties
of the Custodian;
"Directors" means the board of directors of the Company including
any committee thereof;
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Management Agreement
"Rules" means all and any rules and regulations laid down by the
Financial Supervision Commission of the Isle of Man
pursuant to the Financial Supervision Act of 1988 for
the regulation of collective investment schemes.
"Offering emorandum" means the Scheme Particulars dated August
2003 as amended by any supplements thereto relating to
the offering of shares of the Company;
1.2 Any reference to the Company, the Manager or the Custodian includes,
where the context so permits, a reference to its or their duly
authorized servants, agents or delegates.
1.3 Unless the context otherwise requires, words and expressions
contained (but not defined) in this agreement shall bear the same
meanings as in the Offering Memorandum and in the Articles provided
that any alteration or amendment of the Articles or the Offering
Memorandum shall not be effective for the purposes of this agreement
unless any affected party (to the extent that its rights or duties
hereunder are affected by such alteration or amendment) shall have
endorsed his assent hereon or otherwise have assented thereto in
writing.
2. APPOINTMENT
The Company hereby appoints the Manager and the Manager hereby agrees with
effect from the date hereof (subject to the overall policy and supervision
of the Directors and to the provisions of clause 7 below) to act as
Manager of the Company and to manage the assets of the Company and to
promote (or procure the promotion of) the distribution of its Shares in
accordance with the provisions of the Articles, the Offering Memorandum,
the Rules, the laws of the Isle of Man and any other applicable laws or
regulations for the time being in force (hereinafter together called "the
Laws") and upon and subject to the terms hereof until its appointment
shall be terminated as hereinafter provided.
3. INVESTMENT DUTIES
Subject to the overall supervision and control of the Directors as
aforementioned the Manager shall in accordance with the investment policy
of the Directors manage the investment and reinvestment of all cash
securities and other property from time to time comprising the assets of
the Company and (without prejudice to the generality of the foregoing)
shall take such investment decisions as appear to the Manager to be
appropriate in order to achieve the current investment objectives of the
Company as from time to time laid down by the Directors, with power on
behalf of the Company at its discretion to purchase or otherwise acquire
investments and to sell exchange vary or transpose the same provided that
the Manager (and any agent of the appointee appointed for the purpose) may
in respect of each investment decision follow the advice of any adviser or
sub-adviser from time to time approved by the Directors but the Manager or
its appointee hereunder (and any agent of the appointee appointed for the
purpose) shall exercise its own judgment and shall not be bound to follow
such advice.
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Management Agreement
4. ADMINISTRATIVE DUTIES
Without prejudice to the generality of clause 2, the general
administrative duties to be performed by the Manager on behalf of the
Company (subject to the overall policy and supervision of the Directors)
shall include:
4.1 declaring any suspension of the valuation of the net assets pursuant
to the Articles;
4.2 instructing the Custodian as to any tax charges or relief relating
to the investments of the Company to be paid or claimed on behalf of
the Company;
4.3 negotiating in accordance with the instructions of the Directors
(subject always to the provisions of the Articles) all borrowing
arrangements and supervising the implementation of such
arrangements;
4.4 requesting from the Custodian such powers of attorney or proxies as
may reasonably be required appointing attorneys or proxies to
exercise any rights conferred by or attached to all or any part of
the investments of the Company;
4.5 instructing the Custodian or the Company's bankers (as the case may
be) as to the payment of any amounts payable by the Company and
arranging for the dispatch to or to the order of the persons
entitled thereto of all payments due in connection with the
redemption of Shares;
4.6 circulating to each of the Directors prior to the Directors'
meetings a report giving details of the activities and results of
the Company;
4.7 as and when instructed by the Directors, making arrangements for an
increase in the authorized share capital of the Company as and when
necessary;
4.8 as and when requested by the Directors or the Auditors, supplying
the Directors or the Auditors with such information in connection
with the Company or any shares therein as may be in the possession
of the Manager or as may reasonably be obtained or provided by it;
and
4.9 delivering to the Company for approval prior to the issue and
distribution thereof a copy of any prospectus, explanatory
memorandum, application form, accounts, Directors' report, circular,
advertisement or other advertising material proposed to be issued
by, on behalf of, or relating to the Company and maintaining a list
of persons to whom the Offering Memorandum has been given.
5. AUTHORITIES
5.1 The Manager shall have and is hereby granted the authority, power
and right for the account and in the name of the Company on or in
accordance with the instructions of the Directors and subject to the
overall policy and supervision of the Directors:
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Management Agreement
5.1.1 to issue orders and instructions with respect to the
acquisition or disposal of investments of the Company provided
that such acquisition or disposal shall at all times be
subject to and effected in accordance with (so far as
applicable) any arrangements for the time being in force
between the Company and the Custodian and notified to the
Manager,
5.1.2 to acquire or agree to acquire or dispose of or agree to
dispose of investments for the account of the Company and to
exercise any rights conferred by such investments;
5.1.3 to enter into, make and perform all contracts, agreements and
other undertakings as may in the opinion of the Manager be
necessary or advisable or incidental to the carrying out of
the objectives of this agreement; and
5.1.4 to apply to the relevant authorities for, and to obtain from
such authorities, all confirmations or consents relating to
the taxation status of the Company and (where appropriate) all
tax rebates and other payments which may be due to the Company
from time to time in respect of the investments and in
connection therewith (but without prejudice to the Articles)
the Manager shall have and is hereby granted the authority to
disclose to any such relevant authorities such information in
its possession regarding the Company or its affairs as it may
reasonably consider to be necessary for the purposes of such
confirmation, consents to resales or other payments. The
Manager shall not be under an obligation and shall have no
authority to disclose to any third party information relating
to the Company or its management or administration without the
prior written consent of the Directors.
5.2 Subject to the terms of this agreement and to the Articles, to such
directions as may from time to time be given by the Directors and to
the overall policy and supervision of the Directors, the Manager is
authorized to exercise all the powers, duties, discretions and/or
functions exercisable by the Directors under the Articles.
6. RESTRICTIONS AND CONTROL
The Manager shall observe and comply with the Laws, the Articles, the
Offering Memorandum and any obligations deriving from any explanatory
memoranda or other such document(s) of or relating to the Company from
time to time issued or distributed, all resolutions of the Directors of
which it has notice and other lawful orders and directions given from time
to time by the Directors, and all activities engaged in by the Manager
hereunder shall at all times be subject to the control of, and review by,
the Directors and, without limiting the generality of the foregoing, the
Directors from time to time may:
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Management Agreement
6.1 prohibit the Manager from investing or deciding to invest in any
investment or country or in or with any institution;
6.2 require the Manager to dispose of any investment or (subject to the
availability of funds) to acquire any investment;
6.3 instruct the Manager where and with whom to do business;
6.4 define the investment policy of the Company and specify the manner
in which they require the Manager to give effect to such investment
policy or their investment decision;
6.5 withdraw from the management of the Manager any Investment of the
Company which up to the time of such withdrawal was being managed by
the Manager for the purpose of managing the same itself; and
6.6 instruct the Manager as to the exercise of any rights conferred by
or attached to any of the investments of the Company.
7. MARKET MAKING BY THE MANAGER
The Manager shall not be entitled to make a market in the Shares.
8. FURTHER AUTHORITIES
8.1 Subject to the terms hereof, to such orders and directions as may
from time to time be given by the Directors and to the overall
policy and supervision of the Directors, in exercising their rights,
powers, duties, discretions and functions under this agreement, the
Manager is authorized to act for the Company and on the Company's
behalf in the same manner and with the same force and effect as the
Company might or could do.
8.2 The authorities herein contained are continuing ones and shall
remain in full force and effect until revoked by termination of this
agreement, but such revocation shall not affect any liability in any
way resulting from transactions initiated prior to such revocation.
8.3 The Manager shall not carry on any business outside the Isle of Man
(other than in any place or places as the Directors may from time to
time expressly approve for such purpose) if by so doing the Manager
shall cause the Company to become liable to pay any taxes which it
would not otherwise be liable to pay.
9. MANAGEMENT FEES AND EXPENSES
9.1 In consideration of the services to be performed by the Manager
hereunder the Company shall, pay to the Manager upon any redemption
of Shares, a carried interest calculated as follows:
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Management Agreement
For All Share Classes: The Manager and Investment Adviser shall be paid a
carried interest of 15% on the difference between the Net Asset Value at
the time of redemption and the Net Asset Value at the time of the initial
offering (the "Redemption Charge"). Additionally, the Manager and
Investment Adviser shall be reimbursed all out of pocket expenses related
to the subject redemption. These fees and expenses are payable in Hybridon
shares rounded up to next whole number of shares.
9.2 Reasonable disbursements are in addition to the above fees except
for the following expenses which the Manager agrees and undertakes
to pay the cost of maintaining the Company's Register, minute books
and other documentation required by the Laws to be maintained by the
Company; and
9.3 The following expenses of the Company shall be directly paid by the
Company:
(a) all audit fees of the Company and legal expenses in
connection with the Company's corporate existence,
corporate and financial structure and relations with its
shareholders and third parties and all other
professional and other charges in respect of services
rendered to the Company;
(b) any registered agent or other service provider appointed
by the Manager.
(c) Any Directors' fees or Company Secretary fees.
(d) Registered office fees.
9.4 In the event of the Directors declaring a suspension of the
determination of the Net Asset Value pursuant to the Articles the
Company shall continue to pay the Management Fee during the period
of such suspension such fee to be based on the last available NAV or
such other value as the Directors may reasonably determine for this
purpose in the circumstances prevailing at the time of the
suspension and subject to such adjustment as appears appropriate
when the determination of NAV is resumed.
9.5 All fees shall where appropriate bear value added tax.
10. DELEGATION
10.1 The Manager shall have full power to delegate the whole or any part
of the rights, powers, duties, discretion and/or functions
exercisable by it hereunder to any person, firm or company (the
"appointee") approved by the Directors and the Manager shall at all
times remain liable for any acts or omissions of or loss directly or
indirectly caused by such appointee as if such acts or omissions
were those of, or such loss was caused by, the Manager and provided
further that the Manager shall not have power to delegate as
aforesaid to any appointee for the time being resident outside of
the Isle of Man other than with the express prior
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Management Agreement
approval of the Directors and in accordance with the Rules. The
Manager shall exercise its power of delegation only on terms
approved by the Directors, including (unless otherwise agreed with
the Directors) a provision binding on the appointee in terms similar
in all respects to clauses 9 and 12.1.1 of this agreement. The
Manager shall take all reasonable steps to terminate the appointment
of any appointee upon being so instructed by the Directors.
10.2 The Manager shall be entitled to obtain investment and other advice
from such source or sources and on such terms as it thinks fit.
10.3 Subject to the Articles, the Manager may pay or procure the payment
of such commission to such persons in such manner as it shall from
time to time think fit without recourse to the Company.
11. MANAGER DEALING
11.1 Nothing herein contained shall prevent:
11.1.1 the Manager or any holding company of the Manager or any
subsidiary of such holding company or any director or
employee thereof (hereinafter called the "Interested Party")
from becoming the owner of Management Shares in the Company
and holding, disposing of or otherwise dealing with the same
with the same rights which they or it would have had if the
Manager was not a party to this agreement (provided that the
taxation status of the Company in any jurisdiction or
territory, including the Isle of Man, is not thereby affected
or prejudiced in any way) and the Interested Party may buy,
hold and deal in any investments upon its own account
notwithstanding that the same or similar investments may be
held by or for the account of the Company;
11.1.2 an Interested Party from contracting or entering into any
financial, banking or other transaction with the Company, the
Custodian , or any Shareholder of the Company or any company
or body any of whose securities are held by or for the
account of or otherwise connected with the Company, the
Custodian , or any Shareholder of the Company or any such
company or body as aforesaid or from being interested in any
such transaction and the Interested Party shall not be called
upon to account in respect of any such contract or
transaction or benefit derived therefrom by virtue only of
the relationship between the parties concerned provided that
nothing herein contained shall permit an Interested Party to
effect or enter into any such contract or transaction as
aforesaid with the Company unless the terms thereof are no
less beneficial to the Company than those which would have
been applicable to such contract or transaction on the same
day effected or entered into by a person other than an
Interested Party; or
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Management Agreement
11.1.3 an Interested Party from completing a transaction which is
made pursuant to a contract effected in the normal manner on
a stock exchange or other market where the purchaser or the
vendor is undisclosed at the time.
11.2 It is understood that Directors, officers, agents and Shareholders
of the Company are or may be interested in an Interested Party as
directors, officers or shareholders or otherwise, that directors,
officers, shareholders and agents of an Interested Party are or may
be interested in the Company as Directors, officers, shareholders or
otherwise, and that the Manager is or may be interested in the
Company as a Shareholder or otherwise, and it is hereby acknowledged
that no person, firm or company so interested shall be liable to
account for any benefit to any other party by reason solely of such
interest.
12. MANAGER LIABILITY
12.1 The Manager shall not be under any liability on account of anything
done or suffered or omitted to be done by the Manager in good faith
in accordance with or in pursuance of any request or advice of the
Company or its Directors. Whenever pursuant to any provision of this
agreement any notice, instruction or other communication is to be
given by or on behalf of the Company or its Directors or the
Custodian to the Manager, the Manager may accept as sufficient
evidence thereof:
12.1.1 a document signed or purporting to be signed on behalf of the
relevant company or its directors, or by such person or
persons whose signature the Manager is for the time being
authorized by the relevant company or its directors to
accept; or
12.1.2 a message by tested telex, telecopier, cable, facsimile
machine or telegram transmitted or purporting to have been
transmitted by the relevant company or its directors or on
behalf of the relevant company or its directors by such
person or persons whose messages to the Manager is for the
time being authorized by the relevant company or its
directors to accept, and the Manager shall not be obliged to
accept any document or message signed or transmitted or
purporting to be signed or transmitted by any other person.
12.2 The Manager shall not be liable to the Company or any Shareholder of
the Company for any loss sustained by the Company or any Shareholder
of the Company or in any of the investments of the Company except a
loss arising from the Manager's own actual dishonesty, fraud,
willful default, negligence or breach of this Agreement in the
performance or non-performance by the Manager its directors,
officers or employees or any person designated by it of its
obligations or duties hereunder and in particular (but without
limitation) this protection shall extend to any loss (not being
attributable to willful breach of duty or negligence as aforesaid)
sustained by the Company or any Shareholder of the Company or in
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Management Agreement
any of the investments of the Company as a result of any forged
document or signature.
12.3 Subject to clause 10.7 hereof the Company hereby undertakes to hold
harmless and indemnify the Manager against all actions, proceedings,
claims and demands (including taxation for the account of the
Company) and costs and expenses incidental thereto which may be
brought against, suffered or incurred by the Manager by reason of
its performance or non-performance of its obligations or duties
under the terms of this agreement (including all legal, professional
and other expenses incurred) except in any such case as shall arise
from the Manager's own actual dishonesty, fraud, willful default,
negligence or breach of this Agreement in the performance or
nonperformance by the Manager its directors, officers or employees
or any person designated by it of its obligations or duties
hereunder or otherwise and, in particular, (but without limitation)
this protection and indemnity shall extend to any such items
aforesaid (not being attributable to willful default or negligence
as aforesaid) as shall arise as a result of loss, delay,
mis-delivery or error in transmission of any letter, cable or
telegraphic communication or as a result of acting upon any forged
document or signature provided however that this protection and
indemnity shall not extend to any matter relating to or arising out
of the making of any market in Shares.
12.4 The Manager shall not be required to take any legal action on behalf
of the Company unless fully indemnified to its reasonable
satisfaction for all costs and liabilities likely to be incurred or
suffered by the Manager and if the Company requires the Manager to
take any action which in the reasonable opinion of the Manager might
make the Manager liable for the payment of money or liable in any
other way the Manager shall be and kept indemnified in any
reasonable amount and form satisfactory to the Manager as a
pre-requisite to taking action.
12.5 Notwithstanding anything else herein contained, the Manager shall
not be liable to the Company or any shareholder of the Company or
otherwise for any taxation assessed upon or payable by the Company
or any shareholder of the Company wheresoever and by whomsoever the
same may be assessed or imposed and whether directly or indirectly
except for such taxation as shall be attributable to willful breach
of duty or negligence as aforesaid (wheresoever and by whomsoever
imposed or assessed) or profits or gains of the Company which may be
assessed upon or become payable by the Manager and against all
costs, claims, demands, actions, proceedings, costs and expenses in
connection therewith.
12.6 Any indemnity expressly given to the Manager in this agreement is in
addition to and without prejudice to any indemnity allowed by the
Laws.
12.7 For the avoidance of doubt and without prejudice to the generality
of clause 1.2 hereof, it is hereby agreed and declared that
references to the Manager in this clause shall be deemed to refer
also to the officers, servants, employees, authorized agents and
authorized delegates of the Manager.
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Management Agreement
13. DISCRETIONS ON INVESTMENTS
Any rights conferred by investments of the Company shall be exercised in
such manner as the Manager may determine (subject to the right of the
Directors to give instructions to the Manager regarding the exercise of
such rights) and subject as aforesaid the Manager may in its discretion
refrain from the exercise of such rights. The Company shall from time to
time upon request from the Manager execute and deliver or cause or procure
to be executed and delivered to the Manager or its nominee(s) such powers
of attorney or proxies as may reasonably be required authorizing such
attorneys or proxies to exercise any right or otherwise act in respect of
all or any part of the investments.
14. TERMINATION
14.1 This agreement shall run until terminated by either party pursuant
to the following provisions and subject always to the Articles and
to the Rules.
14.2 The Manager shall be entitled to retire:
14.2.1 upon the expiration of not less than 90 days' prior notice in
writing to the Company; and
14.2.2 at any time upon or after the Company going into liquidation
(except voluntary liquidation for the purpose of
reconstruction or amalgamation upon terms previously approved
in writing by the Manager) or being unable to pay its debts
as defined by section 163 of the Companies Xxx 0000 (or any
statutory re-enactment) or if a receiver is appointed of any
of the assets of the Company.
14.3 The Company may terminate the appointment of the Manager by giving
not less than three months' prior notice in writing.
14.4 The Company may forthwith terminate the appointment of the Manager
by notice taking immediate or subsequent effect in any of the
following events:
14.4.1 if the Manager goes into liquidation (except voluntary
liquidation for the purpose of reconstruction or amalgamation
upon terms previously approved in writing by the Company) or
shall be unable to pay its debts as defined by Section 163 of
the Companies Xxx 0000 (or any statutory re-enactment) or if
a receiver is appointed of any of the assets of the Manager;
14.4.2 the Manager commits any breach of its obligations under this
agreement and (if such breach shall be capable of remedy)
fails within thirty days of receipt of notice requiring it so
to do to make good such breach; or
14.4.3 if all of the Shares of the Company in issue are redeemed at
the Company's behest or otherwise.
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Management Agreement
14.5 On the termination of the appointment of the Manager under the
provisions of this clause the Manager shall:
14.5.1 be entitled subject to any right of set off of the Company to
receive all fees and other monies accrued and due up to the
date of such termination but shall not be entitled to
compensation in respect of such termination; and
14.5.2 have the right by written request to require the Company in
all prospectuses, advertising material, letter heads and
other material designs available to investors and prospective
investors to state in a prominent position and in prominent
type (as may reasonably be approved by the Manager) that the
Manager has ceased to be its Manager and the Company shall
forthwith comply with such request and all rights, powers,
discretions and/or functions delegated to the Manager
hereunder shall be automatically withdrawn and revoked.
14.6 Termination of this agreement shall be without prejudice to any
claims or rights which either of the parties hereto may have by
reason of any breach of the other party's obligations and, without
prejudice to the generality of the foregoing, any indemnity
provisions and provisions limiting the liabilities of either party
shall survive termination of this agreement.
14.7 Upon termination hereof the Manager shall deliver or cause to be
delivered to any succeeding Manager or (if the Directors shall so
require) to the Company all books of account, records, registers,
correspondence, documents and other items relating to the affairs of
or belonging to the Company in the possession of or under the
control of the Manager.
14.8 The Manager shall not be responsible for the loss of or damage to
any documents or machinery the property of the Company in the
possession of the Manager or for any failure to fulfill their duties
hereunder if such loss, damage or failure shall be caused by or
indirectly due to war damage, enemy action, the act of any
government or other competent authority, riot, civil commotion,
rebellion, xxxxx, xxxxxxx, accident, fire, strike, lock-out or other
cause whether similar or not beyond the control of the Manager.
15. CONFIDENTIALITY
Neither of the parties hereto shall during the continuance of this
agreement or after its termination, disclose to any person (except with
the authority of the other party or unless ordered to do so by a court of
competent jurisdiction) any information relating to the business, assets,
finances, or other matters of a confidential nature of the other party of
which it may in the course of its duties hereunder or otherwise, become
possessed and each party shall use all reasonable endeavours to prevent
any such disclosure as aforesaid.
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Management Agreement
16. ASSIGNMENT
This agreement shall not be assigned by the Manager without the prior
written consent of the Company.
17. NOTICES
17.1 Any notice, instruction or other instrument required or permitted to
be given hereunder may be delivered in person to the offices of the
parties as set forth herein during normal business hours, or
delivered prepaid registered mail or by telex, cable, SWIFT or
facsimile to the parties at the following addresses or such other
address as may be notified by either party from time to time.
TO THE COMPANY:
Optima Life Sciences Ltd
St. James's Xxxxxxxx
00X Xxxxx Xxxxxx, Xxxxxxx,
Xxxx of Man IM1 1JE, British Isles
TO THE MANAGER:
Pillar Investment Ltd
St. James's Xxxxxxxx
00X Xxxxx Xxxxxx, Xxxxxxx,
Xxxx of Man IMI 1JE, British Isles
Such notice, instruction or other instrument shall be deemed to have been
served, in the case of personal delivery, at the time of delivery, in the
case of a registered letter, at the expiration of five business days after
posting, in the case of cable, twenty four hours after dispatch, and, in
the case of telex or SWIFT or facsimile, immediately on dispatch, and if
delivered outside normal business hours, it shall be deemed to have been
received at the next time after delivery when normal business hours
commence. Evidence that the notice was properly addressed, stamped and put
into the post shall be conclusive evidence or posting.
18. GOVERNING LAW
This agreement shall be governed by and construed in accordance with the
laws of the Isle of Man to the jurisdiction of whose courts the parties
hereby submit.
IN WITNESS WHEREOF the parties have executed this agreement on the date first
above written.
Signed by and on behalf of
OPTIMA LIFE SCIENCES LIMITED Director: /s/ Xxxxx Xxxxx
Signed for and on behalf of
PILLAR INVESTMENT LIMITED Director: /s/ Youssef El-Zein
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