AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT FEG EQUITY ACCESS FUND LLC
AMENDED AND RESTATED
AGREEMENT, made as of April 1, 2012 between FEG Equity Access Fund LLC, a Delaware limited liability company (the “Company”), and FEG Investors, LLC, a Delaware limited liability company (the “Investment Manager”).
WHEREAS, the Company retained the Investment Manager to render investment advisory services to the Company pursuant to an Investment Management Agreement dated as of March 12, 2010; and
(i) to make investment decisions and provide a program of continuous investment management for the Company; prepare, obtain, evaluate, and make available to the Company research and statistical data in connection therewith; 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; engage in or supervise the selection, acquisition, retention, and sale of investments, securities, and/or cash; engage in or supervise the selection, acquisition, retention, and sale of unregistered pooled investment vehicles, and/or managed accounts (collectively, “Portfolio Funds”); the allocation of capital among a number of independent investment advisers (“Portfolio Managers”); select brokers or dealers to execute transactions; and all of the aforementioned shall be done in accordance with the Company’s investment objective, policies, and limitations as stated in the Company’s confidential private placement memorandum, as amended from time to time (the “Memorandum”);
(ii) subject to the direction and control of the Company’s Board, to assist the Company as it may reasonably request in the conduct of the Company’s business, including oral and written research, analysis, advice, statistical, and economic data, judgments regarding individual investments, general economic conditions and trends, and long-range investment policies; determine or recommend the securities, instruments, repurchase agreements, options, and other investments (including the Portfolio Funds), and techniques that the Company will purchase, sell, enter into, use, or provide in an ongoing evaluation of the Company’s portfolio; continuously manage and supervise the investment program of the Company and the composition of its investment portfolio in a manner consistent with the investment objective, policies, and restrictions of the Company, as set forth in its Memorandum and as may be adopted from time to time by the Board, and applicable laws and regulations; determine or recommend the extent to which the Company’s portfolio shall be invested in securities, Portfolio Funds, and other assets, and what portion if any, should be held uninvested; and undertake to do anything incidental to the foregoing to facilitate the performance of its obligations hereunder;
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(iii) furnish to or place at the disposal of the Company information, evaluations, analyses, and opinions formulated or obtained by the Investment Manager in the discharge of its duties as the Company may, from time to time reasonably request, and maintain or cause to be maintained for the Company all books, records, reports, and any other information required under the Company Act, to the extent that such books, records, reports, and other information are not maintained or furnished by any custodian, transfer agent, administrator, sub-administrator, or other agent of the Company;
(iv) to furnish at the Investment Manager’s expense for the use of the Company such office space, telephone, utilities, and facilities as the Company may require for its reasonable needs and to furnish at the Investment Manager’s expense clerical services related to research, statistical, and investment work;
(v) to render to the Company management and administrative assistance in connection with the operation of the Company that shall include (i) compliance with all reasonable requests of the Company for information, including information required in connection with the Company’s potential filings with the SEC, other federal and state regulatory organizations, and self-regulatory organizations, and (ii) such other services as the Investment Manager shall from time to time determine to be necessary or useful to the administration of the Company;
(vi) to pay the reasonable salaries, fees, and expenses of the Company (including the Company’s officers and employees and the Company’s share of payroll taxes) and any fees and expenses (including travel expenses) of the Company’s Directors who are directors, officers, or employees of the Investment Manager or its affiliates; provided, however, that the Company and not the Investment Manager, shall bear travel expenses of Directors and officers of the Company who are directors, officers, or employees of the Investment Manager or of its affiliates to the extent that such expenses relate to attendance at meetings of the Company’s Board of Directors or any committees thereof or advisers thereto. The Investment Manager shall bear all expenses arising out of its duties hereunder but shall not be responsible for any expenses of the Company other than those specifically allocated to the Investment Manager in this Agreement;
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(vii) to enter into, make and perform any other contracts, agreements or other undertakings it may deem advisable in acting as Investment Manager of the Company; and
(viii) to act for the Company in all other matters relating to its investment management duties.
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The Company will bear all of its extraordinary expenses, if any. The Investment Manager or an affiliate will bear the fees and expenses incurred in connection with the organization of the Company and the initial offering of the Interests. Any expenses incurred in connection with the Company’s registration under the Company Act, if so registered in the future, will be borne by the Investment Manager or an affiliate, provided, however, that the ongoing expenses incurred in connection with the Company’s status as a registered investment company, if and when so registered, such as the fees and expenses of directors not affiliated with the Investment Manager or its affiliates and the expenses incurred in connection with the preparation and filing of periodic and other regulatory filings, will be borne by the Company.
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(a) The Investment Manager, its Members, and their personnel are required to devote so much of their time to the activities of the Company as may be reasonably required to further the business affairs and activities of the Company. The Investment Manager, its Members, and their personnel are involved in other business ventures and may organize or become involved in other business ventures in the future. Neither the Company nor any Member will share in the risks or rewards of the Investment Manager, its members, and their personnel deriving from such other ventures. However, such other ventures will compete for the time and attention of such persons and might create other conflicts of interest. This Agreement does not require the Investment Manager, its members, and their personnel to devote any particular amount of time to the Company.
(b) Portfolio Managers trade for accounts other than the Company and may have an incentive to favor those accounts over the Company as they may have investments in those accounts or receive greater compensation for managing them than they do for managing the Company’s investment. Similarly, the Investment Manager’s members currently manage other accounts and may have an incentive to favor those accounts over the Company as it or its members may have investments in those accounts or receive greater compensation for managing them than they do for managing the Company.
(c) The Investment Manager or its members may operate now or organize in the future investment vehicles similar to the Company which may invest in similar or different investments. The Investment Manager and its members may have to allocate limited investment opportunities in Portfolio Managers among the Company and such other investment vehicles, based on a variety of factors including differences in the size of different investment vehicles (including the Company), differences in target strategy allocations and the timing of contributions and withdrawals. The ultimate decision as to allocations will be determined in the Investment Manager’s discretion.
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(a) To the fullest extent permitted by law, the Company shall, subject to Section 12(b) hereof, indemnify the Investment Manager (including for this purpose each affiliate, shareholder, partner, member, officer, director, principal, employee, or agent of the Investment Manager) and the executors, heirs, assigns, successors, or other legal representatives of the Investment Manager, and of any person who controls or is under common control, or otherwise affiliated, with the Investment Manager (and their executors, heirs, assigns, successors, or other legal representatives) (an “indemnitee”) against all losses, claims, damages, liabilities, costs, and expenses, including, but not limited to, amounts paid in satisfaction of judgments, in compromise, or as fines or penalties, and reasonable counsel fees, incurred in connection with the defense or disposition of any action, suit, investigation, or other proceeding, whether civil or criminal, before any judicial, arbitral, administrative, or legislative 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 in office or thereafter, by reason of being or having been the Investment Manager of the Company or the past or present performance of services to the Company by the Investment Manager, except to the extent such loss, claim, damage, liability, cost, or expense shall have been finally determined in a decision on the merits in any such action, suit, investigation, or other proceeding to have been incurred or suffered by such indemnitee by reason of willful
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misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of the indemnitee’s office. The rights of indemnification provided under this Section 12 shall not be construed to constitute a waiver of any rights of the Company or any Member under federal or state securities laws which, under certain circumstances, impose liability even on persons that act in good faith, or to provide for indemnification of an indemnitee to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the applicable provisions of this Section 12 to the fullest extent permitted by law.
(b) Expenses, including reasonable counsel fees, so incurred by any such indemnitee (but excluding amounts paid in satisfaction of judgments, in compromise, or as fines or penalties), may be paid from time to time by the Company in advance of the final disposition of any such action, suit, investigation, or proceeding upon receipt of an undertaking by or on behalf of such indemnitee to repay to the Company amounts so paid if it shall ultimately be determined that indemnification of such expenses is not authorized under Section 12(a) hereof; provided, however, that a majority of the Directors (excluding any Director who has been a party to any action, suit, investigation, or proceeding involving claims similar to those involved in the action, suit, investigation, or proceeding giving rise to a claim for advancement of expenses hereunder if the Company is registered as an “investment company” under the Company Act) or 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 such indemnitee ultimately will be entitled to indemnification.
(c) An indemnitee may not satisfy any right of indemnification or advancement of expenses granted in this Section 12 as to which he, she, or it may otherwise be entitled except out of the assets of the Company, and no Member shall be personally liable with respect to any such claim for indemnification or advancement of expenses.
(d) The rights of indemnification provided hereunder shall not be exclusive of or affect any other rights to which any person may be entitled by contract or otherwise under law. Nothing contained in this Section 12 shall affect the power of the Company to purchase and maintain liability insurance on behalf of any person.
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(a) if to the Company: FEG Equity Access Fund LLC, c/o FEG Investors, LLC, 000 Xxxx Xxxxx Xx., Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attn: Chief Compliance Officer.
(b) if to the Investment Manager: FEG Investors, LLC, 000 Xxxx Xxxxx Xx., Xxxxx 0000, Xxxxxxxxxx, XX 00000, Attn: Chief Compliance Officer.
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20. Conflicts of Laws. This Agreement shall be construed in accordance with the laws of the State of Delaware, without giving effect to the conflicts of laws principles thereof, provided, however, that nothing herein shall be construed as being inconsistent with the Company Act (if the Company is registered as an “investment company” under the Company Act). As used herein, the terms “interested person,” “assignment,” and “vote of a majority of the outstanding voting securities” shall have the meanings set forth in the Company Act.
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By:
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/s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
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Title: President
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FEG INVESTORS, LLC
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By. Fund Evaluation Group, LLC, member
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By:
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/s/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
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Title: President
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