Dated: February 27, 2019 AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
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Dated: February 27, 2019
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iM DBi Cayman Managed Futures Subsidiary
Dynamic Beta investments, LLC
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AMENDED AND RESTATED
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CONTENTS
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1
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Definitions and interpretation
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1
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2
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Appointment of Investment Manager
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4
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3
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Non-exclusivity, permissible dealings, cross interests and conflicts of interest
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4
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4
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Investment Manager's obligations
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6
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5
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Investment Manager's powers and authorities
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9
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6
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Acknowledgement by Investment Manager
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10
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7
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Acknowledgements by Company
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11
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8
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Investment Manager's fees and expenses
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11
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9
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Reports and access
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12
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10
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Mutual obligations
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13
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11
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Investment Manager's representations and warranties
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13
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12
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Company’s representations and warranties
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14
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13
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Use of Investment Manager's name
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15
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14
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Releases and indemnity
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16
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15
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Confidentiality
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17
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16
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Termination
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19
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Notices |
21
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18
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Miscellaneous
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22
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This amended and restated investment management agreement is made on this 27th day of February 2019.
PARTIES
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1
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iM DBi Cayman Managed Futures
Subsidiary, an exempted company limited by shares incorporated under the laws of the Cayman Islands, whose registered office is situated at the offices of Ogier Global (Cayman) Limited, 00 Xxxxx Xxx, Xxxxxx Xxx, Xxxxx Xxxxxx
XX0-0000, Xxxxxx Xxxxxxx (Company)
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2
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Dynamic Beta investments, LLC
a limited liability company formed under the laws of the State of Delaware whose registered office is situated at The Corporation Trust Company, Corporation Trust Centre, 0000 Xxxxxx Xx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx xx Xxxxxxx (Investment Manager).
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RECITALS
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A
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The Company is an exempted company limited by shares under the laws of the Cayman Islands which has been formed as a subsidiary
for iM DBi Managed Futures Strategy ETF (Fund). The Fund is a series of Manager Directed Portfolios (Trust), a Delaware statutory trust and an open-end management investment company, registered as such under the Investment Company Act of 1940, as amended (Investment Company Act).
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B
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The Company and the Investment Manager entered into an investment management agreement dated 6 December 2018 (Original Agreement). The parties now wish to amend and restate the Original Agreement on the terms of this Agreement, which shall
supersede the Original Agreement as at the date hereof.
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C
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The Company wishes to appoint the Investment Manager to manage and invest the Portfolio (as defined below) in accordance with the
investment policies and objectives in the Offering Memorandum (as defined below), and the Investment Manager has agreed to accept that appointment, on the terms of this agreement.
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D
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The Company is wholly owned and controlled by the Fund.
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E
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The Investment Manager is registered as an investment adviser under the Investment Advisers Act of 1940, as amended, is
registered as a commodity trading adviser and a commodity pool operator with the National Futures Association under the Commodity Exchange Act, as amended, serves as investment sub-adviser to the Fund and is engaged in the business of
supplying investment advisory services.
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1
Operative provisions
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1
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Definitions and interpretation
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Definitions
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1.1
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In this agreement, the following definitions apply:
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Affiliate
means an affiliated company or an affiliated person, as defined in the Investment Company Act.
Articles
means the Company’s memorandum and articles of association.
Authorised
Officer means any person nominated by the Company as authorised to instruct the Investment Manager.
Custodian
means the person(s) appointed as custodian(s) of the Company’s assets in accordance with the requirements of the Investment Company Act and the SEC regulations thereunder. The term Custodian includes any sub-custodian duly appointed by the
Custodian.
Gross
Negligence, in relation to a person, means a standard of conduct beyond negligence whereby that person acts with reckless disregard for the consequences of his or her action or inaction.
Offering
Memorandum means the offering memorandum issued by the Fund, as supplemented or amended from time to time.
Portfolio,
at a particular time, means all of the Company’s assets and investments, including its uninvested cash, under the management of the Investment Manager at that time.
Prime
Broker means Societe Generale or the other person, if any, appointed by the Company in place of or in addition to that person as its prime broker(s).
Share
means a share in the capital of the Company of US $1.00 par value issued or to be issued by the Company.
Related
Person, in relation to a person, means (to greatest extent applicable) each of the following:
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(a)
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an Affiliate of that person;
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(b)
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a director, officer, member or employee of that person;
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(c)
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a director, officer, member or employee of an Affiliate referred to in paragraph (a).
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1.2
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Unless the context otherwise requires, capitalised terms not defined in the preceding clause
have the meanings given to them in the Offering Memorandum or the Articles. However, an amendment of a defined term in the Offering Memorandum or the Articles does not take effect for the purpose of this agreement unless it is agreed in
writing by both parties by way of endorsement on this agreement or otherwise. If there is a conflict between terms defined in the Articles and the Offering Memorandum, the definition in the Articles prevails.
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2
Interpretation
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1.3
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In the interpretation of this agreement, the following provisions apply unless the context
otherwise requires:
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(a)
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Headings are inserted for convenience only and do not affect the interpretation of this
agreement.
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(b)
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A reference to a clause, part, schedule or attachment is a reference to a clause, part,
schedule or attachment of or to this agreement.
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(c)
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Where a word or phrase is given a defined meaning, another part of speech or other
grammatical form in respect of that word or phrase has a corresponding meaning.
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(d)
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Subject to clause 1.2, a reference in this agreement to any other agreement or document is to
that agreement or document as amended, novated, supplemented, restated or replaced.
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(e)
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A reference to this agreement is to this agreement as amended, novated, supplemented or
replaced.
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(f)
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A word that denotes the singular also denotes the plural, a word that denotes the plural also
denotes the singular, and a reference to any gender also denotes the other genders.
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(g)
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An expression importing a natural person includes any company, trust, partnership, joint
venture, association, body corporate or governmental agency, in each case whether or not having a separate legal personality.
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(h)
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Any phrase followed by the expression "include", "including" or "in particular" (or any
similar expression) is not to be given a restricted meaning because that expression is followed by words indicating a particular class of acts, matters or things.
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(i)
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Unless otherwise indicated, a reference to any law, legislation or legislative provision is a
reference to a law, legislation or legislative provision of the Cayman Islands and includes:
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(i)
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any statutory modification, amendment or re-enactment; and
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(ii)
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any subordinate legislation or regulations issued under that legislation or legislative
provision.
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3
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(j)
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A reference to $ means US dollars and all amounts payable under this agreement are payable in
US dollars.
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(k)
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A reference in this agreement to a business day means a day other than a Saturday or Sunday
on which banks are open for business generally in the Cayman Islands.
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(l)
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Any question of
interpretation of any term or provision of this Agreement having a counterpart in or otherwise derived from a term or provision of the Investment Company Act shall be resolved by reference to such term or provision of the Investment
Company Act and the interpretation thereof, if any, by the U.S. Courts or by the SEC or its staff. To the extent that there is any inconsistency between the provisions of this Agreement and the provisions of the Investment
Company Act, the parties agree that the provisions of the Investment Company Act shall prevail.
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2
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Appointment of Investment Manager
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Appointment
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2.1
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The Company appoints the Investment Manager to manage the investment of the Portfolio, and
the Investment Manager accepts that appointment, on the terms of this agreement.
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Term of appointment
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2.2
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The appointment under the preceding clause commences from the date of this agreement and
continues in force until terminated under clause 16.
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3
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Non-exclusivity, permissible dealings, cross interests and conflicts of
interest
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Non-exclusivity of Investment Manager's services
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3.1
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The provision of the Investment Manager's services is not exclusive to the Company.
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3.2
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The Investment Manager or any Related Person of the Investment Manager may act (or continue
to act) as investment manager, manager, investment advisor or distributor or in any other capacity whatever for any other person, including another investment fund with similar objectives to those of the Company.
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3.3
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The Company acknowledges that neither the Investment Manager nor any Related Person of the
Investment Manager:
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(a)
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has a duty to disclose to the Company the confidential information of another investment fund
obtained by any of them as a result of so acting; or
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(b)
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is liable to account for any profit or benefit derived by any of them from another investment
fund as a result of so acting.
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4
Officers etc of Investment Manager and its Affiliates may engage in other activities
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3.4
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The Investment Manager's directors, officers and members, and those of any of its Affiliates
may engage in other businesses and may render services to other persons, including other investment funds, while simultaneously acting in those capacities (or while simultaneously acting as directors, officers or members of the
Company). In so acting, no such person will be taken to have a personal interest that conflicts with the interests of a party to this agreement.
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Permissible dealings by Investment Manager and its Related Persons
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3.5
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The Investment Manager or any Related Person of the Investment Manager may do any one or
more of the following without reference to the Company:
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(a)
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It may acquire, hold or dispose of any investments on its own account:
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(i)
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even though the same or similar investments may be held by, or for the account of, or
otherwise connected with, the Company; and
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(ii)
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even though a particular investment is:
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(A)
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acquired at a price lower than that paid by or on behalf of the Company in respect of the
acquisition of an investment in a company of the same class; or
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(B)
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disposed of at a price higher than that received by or on behalf of the Company by virtue of
a transaction made by the Company at or about the same time as that in which it was concerned.
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However, the acquisition or disposal must be made on normal commercial terms negotiated on an arm's
length basis.
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(b)
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It may:
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(i)
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enter into any financial, banking, currency, advisory or other transaction with:
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(A)
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the Company; or
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(B)
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a company or body whose securities are held by, or for the account of, or otherwise
connected with, the Company; or
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(ii)
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be interested in any such transaction.
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However, the transaction must be made on normal commercial terms, negotiated on an arm's length basis
and be in the best commercial interests of the holders of the Shares. (For the purpose of this paragraph, a Related Person of the Investment Manager includes a person:
5
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(iii)
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over whom, or over the assets of whom, the Investment Manager or an Affiliate of the
Investment Manager has discretionary management powers; or
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(iv)
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who commonly acts in accordance with advice given to it by the Investment Manager or an
Affiliate of the Investment Manager.)
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3.6
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The Company acknowledges that neither the Investment Manager nor any Related Person of the
Investment Manager is liable to account for any profit or benefit derived by any of them as a result of a permitted dealing of the type referred to in the preceding clause.
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Treatment of investment opportunities
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3.7
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The Investment Manager or any Related Person of the Investment Manager may invest in,
directly or indirectly, or manage or advise other investment funds or accounts that invest in assets of a similar kind that the Company may also invest in. Neither the Investment Manager nor any Related Person of the Investment Manager
is obliged to offer to the Company or to account to the Company (or share with the Company or inform the Company of):
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(a)
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investment opportunities of which any of them becomes aware in respect of any such
transaction; or
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(b)
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any benefit received by any of them from any such transaction.
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But the Investment Manager will allocate those investment opportunities, or procure them to be
allocated, on an equitable basis between the Company and other clients.
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4
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Investment Manager's obligations
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Investment Manager to manage Portfolio
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4.1
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The Investment Manager agrees to manage the Portfolio in furtherance of the investment
objective:
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(a)
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described in the Offering Memorandum and Articles of Association; or
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(b)
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otherwise stipulated by the Company’s directors.
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It undertakes to so manage the Portfolio in pursuing that objective on a discretionary basis subject
only to the approach and the investment restrictions specified in the Offering Memorandum or as otherwise stipulated by the directors.
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4.2
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The Investment Manager shall supervise investments of the Company in accordance with the
investment objectives, policies and restrictions as set forth in the Company’s, the Fund’s and the Trust’s governing documents, including, without limitation:
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(a)
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the Trust’s Declaration of Trust and By-Laws, each as amended from time to time;
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6
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(b)
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the Fund’s prospectus and statement of additional information, each as supplemented or
amended to date;
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(c)
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the Trust’s policies on affiliated transactions and custody; and
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(d)
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such other limitations, policies and procedures as the Board of Trustees of the Trust (Trust Board) may impose from time to time and provide in writing to the Investment Manager (collectively, Investment Policies).
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4.3
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In providing such services to the Company, the Investment Manager shall at all times, as
applicable, adhere to the provisions and restrictions contained in the federal securities laws, state securities laws, the Internal Revenue Code of 1986, the Uniform Commercial Code and other applicable law.
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4.4
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Subject to the preceding clauses, the Investment Manager has complete discretion to
undertake the following activities for the account of, and as agent for, the Company (but without prior reference to the Company):
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(a)
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to buy, sell (including short sales), retain, convert, execute, exchange or otherwise deal in
investments;
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(b)
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to borrow securities and make deposits of any investments;
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(c)
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to subscribe for issues, and offerings for sale, of any investments and to accept placements,
underwritings and sub-underwritings of any investments;
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(d)
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to effect transactions, whether or not on any recognised market or exchange and whether or
not frequently traded (including derivatives transactions, repurchase and reverse repurchase transactions, and securities lending transactions);
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(e)
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to negotiate, settle and sign on behalf of the Company any account opening and other related
trading documentation; and
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(f)
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otherwise, to act as the Investment Manager considers appropriate in relation to the
management and investment of the Portfolio.
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Brokerage
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4.5
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The Investment Manager shall be responsible for decisions to buy and sell investments for
the Company, for broker selection, and for negotiation of brokerage commission rates, provided that the Investment Manager shall not direct orders to an affiliated person of the Investment Manager without prior authorization to use such
affiliated broker from the Trust Board. The Investment Manager’s primary consideration in effecting a transaction will be execution at the most favorable price. In selecting a broker to execute each particular transaction, the
Investment Manager will primarily consider execution at the most favorable price under the circumstances and may also consider, among other factors, the best net price available; the reliability, integrity and financial condition of the
broker; the size of and difficulty in executing the order; and the value of the expected contribution of the broker to the investment performance of the Company on a continuing basis. The price to the Company in any transaction may be
less favorable than that available from another broker if the difference is reasonably justified by other aspects of the portfolio execution services offered.
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7
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4.6
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Subject to such policies as the Trust Board may determine and consistent with Section 28(e)
of the Securities and Exchange Act of 1934, the Investment Manager shall not be deemed to have acted unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of its having caused the Company to pay
a broker or dealer that provides (directly or indirectly) brokerage or research services to the Investment Manager an amount of commission for effecting a portfolio transaction in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction, if the Investment Manager determines in good faith that such amount of commission was reasonable in relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the Investment Manager’s overall responsibilities with respect to the Company. Subject to the same policies and legal provisions, the Investment Manager is
further authorized to allocate the orders placed by it on behalf of the Company to such brokers or dealers who also provide research or other products and services eligible under Section 28(e) to the Investment Manager or any of its
affiliates. Such allocation shall be in such amounts and proportions as the Investment Manager shall determine, and the Investment Manager shall report on such allocations regularly to the Company and the Trust indicating the brokers to
whom such allocations have been made and the basis therefor.
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4.7
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On occasions when the Investment Manager deems the purchase or sale of an investment to be
in the best interest of the Company as well as of other clients, the Investment Manager, to the extent permitted by applicable laws and regulations, may aggregate the investments to be so purchased or sold in order to obtain the most
favorable price or lower brokerage commissions and the most efficient execution. In such event, allocation of the investments so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Investment
Manager in the manner it considers to be the most equitable and consistent with its fiduciary obligations to the Company and to such other clients.
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Investment Manager to make any required disclosures
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4.8
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If the Company is required by applicable legislation to make any disclosures with respect to
its interest in any investments that the Investment Manager acquires or disposes of for the account of the Company, the Investment Manager, as the agent of the Company, must:
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(a)
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make the appropriate disclosures to the extent permitted by applicable law; or
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(b)
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if not so permitted, notify the Company’s directors as soon as possible of the disclosure
obligation and the transaction that gave rise to that obligation.
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8
Investment Manager to comply with directors' lawful instructions
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4.9
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In performing its duties under this agreement, the Investment Manager must comply with all
instructions of the Company’s directors in connection with those duties, to the extent that those instructions are not inconsistent with applicable law or regulations or the terms of this agreement.
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4.10
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Instructions of the Company’s directors may be given by letter or fax, in either case,
signed by an Authorised Officer or by email transmitted by an Authorised Officer or by telephone. However, any telephone instructions must be confirmed in writing as soon as practicable by an Authorised Officer. Irrespective of the
means by which those instructions are received, the Investment Manager is not required to acknowledge receipt of them.
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Investment Manager subject to supervision by the Trust Board
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4.11
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The Investment Manager shall:
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(a)
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manage and oversee the investments of the Company, subject to the ultimate supervision and direction of the
Trust Board;
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(b)
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maintain the books and records required to be maintained by the Company except to the extent arrangements
have been made for such books and records to be maintained by the administrator or another agent of the Company;
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(c)
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furnish reports, statements and other data on securities, economic conditions and other matters related to
the investment of the Company’s assets that the Fund’s administrator or distributor or the officers of the Trust may reasonably request; and
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(d)
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furnish such reports with respect to the Company’s investment activities as the Trust Board may reasonably
request.
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5
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Investment Manager's powers and authorities
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Investment Manager may borrow from Prime Broker and Custodian
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5.1
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The Investment Manager may borrow money for the account, and on behalf, of the Company from
the Prime Broker and Custodian under arrangements established from time to time by the Company or by the Investment Manager on behalf of the Company with the Prime Broker and Custodian, subject to the requirements of the Investment
Company Act and Section 5.2.
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Investment Manager shall not borrow from the Company
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5.2
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The Investment Manager agrees that neither it nor any of its officers or employees shall
borrow from the Company or pledge or use the Company’s assets in connection with any borrowing not directly for the Company’s benefit. For this purpose, failure to pay any amount due and payable to the Company for a period of more than
thirty (30) days shall constitute a borrowing. Any borrowing on behalf of the Company must be approved in advance by the Trust Board and made in accordance with the requirements of the Investment Company Act and the Investment Policies.
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9
Investment Manager may instruct other service providers in relation to its duties
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5.3
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The Investment Manager may, on behalf of the Company, give to the Prime Broker and Custodian
or to the Company’s administrator, brokers, dealers or counterparties such instructions as the Investment Manager considers necessary or desirable for the proper performance of its duties under this agreement. Upon reasonable request,
the Company agrees to confirm the instructions to any of those parties.
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Investment Manager may delegate certain functions, powers, and duties
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5.4
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The Investment Manager may delegate to any person some or all of its functions, powers, and
duties under this agreement (other than those connected with the management of the Portfolio or the exercise of its discretions in relation to the Company’s investments).
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5.5
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For the purpose of any delegation under the preceding clause, the Investment Manager may
provide information about the Company and the Portfolio to that person.
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5.6
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In relation to any delegation, the Investment Manager:
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(a)
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remains liable for the acts or omissions of the delegate; and
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(b)
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is responsible for the costs associated with that delegation, including any of the delegate's
fees and expenses.
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Investment Manager may engage agents in relation to its duties
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5.7
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The Investment Manager may also engage agents, including, but not limited to, lawyers and
auditors, to advise it in relation to the performance of any of its services under this agreement.
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5.8
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In relation to any such engagement, the Investment Manager:
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(a)
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is not liable for the acts or omissions of the agent;
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(b)
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is not responsible for the agent's fees and expenses but only if both of the following
conditions are satisfied:
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(i)
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the request for advice was necessary or desirable; and
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(ii)
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the agent's prior estimate of its fees and expenses was approved by the Company’s directors.
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10
Investment Manager's voting powers
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5.9
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Unless otherwise instructed by the Company’s directors or the Trust Board, the Investment
Manager may, in its absolute discretion, exercise, or refrain from exercising, the voting or other rights attaching to the investments comprised in the Portfolio.
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6
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Acknowledgement by Investment Manager
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The Investment Manager acknowledges that the Company may:
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(a)
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add to the Portfolio cash subscribed on the issue of Shares; and
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(b)
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withdraw from the Portfolio cash or other assets to enable the Company to meet redemptions of
Shares and other expenditures.
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7
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Investment Manager may aggregate transactions
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The Company acknowledges that:
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(a)
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the Investment Manager may aggregate investment transactions for the Company with those of
other customers; and
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(b)
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on some occasions aggregation may operate to the advantage of the Company and on other
occasions to its disadvantage.
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8
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Investment Manager's fees and expenses
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No fees
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8.1
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The Investment Manager is not entitled to payment by the Company of any performance,
management or other fees for the provision of its services under this agreement.
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Expenses
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8.2
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With respect to the operation of the Company, the Investment Manager shall be responsible
for (i) the Company’s organizational expenses, (ii) providing the personnel, office space and equipment reasonably necessary for the operation of the Company, and (iii) any costs of liquidating or reorganizing the Company.
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8.3
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The Company is responsible for and shall assume the obligation for payment of all of its
expenses, other than as stated in clause 8.2 above, including but not limited to: fees and expenses incurred in connection with the issuance and transfer of its shares; brokerage and commission expenses; all expenses of transfer,
receipt, safekeeping, servicing and accounting for the cash, securities and other property of the Company, including all fees and expenses of its custodian and accounting services agent; interest charges on any borrowings; costs and
expenses, if any, of pricing and calculating its daily net asset value and of maintaining its books of account required under the Investment Company Act and Commodity Exchange Act; taxes, if any; insurance premiums on property or
personnel of the Company which inure to its benefit, including liability and fidelity bond insurance; legal, auditing and accounting fees; all expenses of maintaining and servicing shareholder accounts, including all charges for
transfer, shareholder recordkeeping, dividend disbursing, redemption, and other agents for the benefit of the Company, if any; and all other charges and costs of its operation plus any extraordinary and non-recurring expenses, except as
herein otherwise prescribed
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11
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8.4
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The Investment Manager may voluntarily or contractually absorb certain expenses of the
Company.
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8.5
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To the extent the Investment Manager incurs any costs by assuming expenses which are an
obligation of the Company as set forth herein, the Company shall promptly reimburse the Investment Manager for such costs and expenses, except to the extent the Investment Manager has otherwise agreed to bear such expenses. To the
extent the services for which the Company is obligated to pay are performed by the Investment Manager, the Investment Manager shall be entitled to recover from the Company to the extent of the Investment Manager’s actual costs for
providing such services. In determining the Investment Manager’s actual costs, the Investment Manager may take into account an allocated portion of the salaries and overhead of personnel performing the services
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9
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Reports and access
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Company’s further obligations
9.1 The Company must supply, or cause to be supplied, to the Investment Manager:
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(a)
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a copy of the Articles and the Offering Memorandum and any amendments to them from time to
time as soon as practicable from the time of their adoption; and
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(b)
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all other information the Investment Manager reasonably requires to enable it to perform its
services under this agreement, including, but not limited to, the Trust’s Declaration of Trust and By-Laws and all compliance policies and procedures of the Trust relevant to the Investment Manger’s services to the Company.
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9.2
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The Company agrees to provide to the Investment Manager promptly any amendment to the
foregoing and, if any such amendment would materially affect the services to be provided by the Investment Manager hereunder, the Company agrees to provide the amendment to the Investment Manager prior to its adoption by the Trust
Board.
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Company’s further obligations
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9.3
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The Investment Manager agrees to supply such information regarding the Company to the Fund’s
administrator and to permit such compliance inspections by the Fund’s administrator and the Trust’s Chief Compliance Officer as shall be reasonably necessary to permit the administrator and Chief Compliance Officer, or any regulatory
authority having jurisdiction over the Company, the Trust or the Fund, to satisfy their respective obligations or the obligations of the Trust or the Fund and respond to the reasonable requests of the Trust Board.
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12
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10
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Mutual obligations
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Each party must refrain from doing any act, matter or thing that would or may in any manner prejudice
or bring into disrepute the business or reputation of the other party or any of its directors or partners.
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11
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Investment Manager's representations and warranties
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Representations and warranties
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11.1
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The Investment Manager represents and warrants to the Company as follows:
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(a)
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that it is duly organised, validly existing and in good standing under the laws of its place
of organisation;
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(b)
|
that the execution of this agreement and the performance of its obligations under it,
including effecting the transactions contemplated by it:
|
|
(i)
|
are within its powers;
|
|
(ii)
|
have been authorised by all requisite action on its behalf;
|
|
(iii)
|
do not contravene its constituent documents or any applicable law, public rule or regulation;
and
|
|
(iv)
|
do not require any consent, licence, approval or authorisation of any governmental or
regulatory authority or agency of any applicable jurisdiction other than as specified in this agreement;
|
|
(c)
|
that this agreement is binding on it and is enforceable in accordance with its terms except
insofar as enforcement may be limited by bankruptcy, insolvency or other laws relating to or affecting enforcement of creditors' rights or general principles of equity;
|
|
(d)
|
that it is not necessary to file or record this agreement or any document relating to it with
any governmental or regulatory authority or agency or court in any applicable jurisdiction to ensure its validity and enforceability;
|
|
(e)
|
that it has complied with and will continue to comply with all laws, rules and regulations or
court and governmental orders by which it is bound or to which it is subject in connection with the execution of this agreement and the performance of its obligations under it.
|
13
Indemnity
|
11.2
|
The Investment Manager indemnifies the Company against all liabilities, losses, damages,
claims, costs and expenses of whatever description that the Company may suffer or incur as a consequence of any matter or thing being found to be in breach of any of the representations and warranties in the preceding clause.
|
|
11.3
|
The Investment Manager shall be liable to the Company for any loss (including brokerage
charges) incurred by the Company as a result of any improper investment made by the Investment Manager in contradiction of the Investment Policies.
|
|
12
|
Company’s representations and warranties
|
Representations and warranties
|
12.1
|
The Company represents and warrants to the Investment Manager as follows:
|
|
(a)
|
that it is duly organised, validly existing and in good standing under the laws of its place
of organisation;
|
|
(b)
|
that the execution of this agreement and the performance of its obligations under it,
including effecting the transactions contemplated by it:
|
|
(i)
|
are within its powers;
|
|
(ii)
|
have been authorised by all requisite action on its behalf;
|
|
(iii)
|
do not contravene its constituent documents or any applicable law, public rule or regulation;
and
|
|
(iv)
|
do not require any consent, licence, approval or authorisation of any governmental or
regulatory authority or agency of any applicable jurisdiction other than as specified in this agreement;
|
|
(c)
|
that this agreement is binding on it and is enforceable in accordance with its terms except
insofar as enforcement may be limited by bankruptcy, insolvency or other laws relating to or affecting enforcement of creditors' rights or general principles of equity;
|
|
(d)
|
that it is not necessary to file or record this agreement or any document relating to it with
any governmental or regulatory authority or agency or court in any applicable jurisdiction to ensure its validity and enforceability;
|
|
(e)
|
that it has complied with and will continue to comply with all laws, rules and regulations or
court and governmental orders by which it is bound or to which it is subject in connection with the execution of this agreement and the performance of its obligations under it; and
|
14
|
(f)
|
that all of the assets comprising the Portfolio are owned by the Company free of any
encumbrance and that no other person has, or will have, an interest in any of those assets except:
|
|
(i)
|
as provided in this agreement or in the agreement appointing the Prime Broker and Custodian
(a copy of which has been provided to the Investment Manager); or
|
|
(ii)
|
as notified to the Investment Manager by the Company’s directors from time to time.
|
Indemnity
|
12.2
|
The Company indemnifies the Investment Manager against all liabilities, losses, damages,
claims, costs and expenses of whatever description that the Investment Manager may suffer or incur as a consequence of any matter or thing being found to be in breach of any of the representations and warranties in the preceding clause.
|
|
13
|
Use of Investment Manager's name
|
|
13.1
|
The Company acknowledges that it adopted its name with the permission of the Investment
Manager.
|
|
(a)
|
The Investment Manager consents to the non-exclusive use by the Company of the name "iM DBi
Cayman Managed Futures Subsidiary", but only for so long as the Investment Manager serves as the Company’s investment manager.
|
|
(b)
|
The Company indemnifies the Investment Manager and each of its members, officers, employees
and agents against all liabilities, losses, damages, claims, costs and expenses of whatever description, including attorneys' fees and disbursements, which any of them suffer or incur, whether alone or jointly with any other person,
arising out of or in connection with:
|
|
(i)
|
the Company’s use or misuse of the name "iM DBi Cayman Managed Futures Subsidiary"; or
|
|
(ii)
|
any breach of or failure to comply with this clause 13.
|
Investment Manager to approve sales literature etc with its name
|
13.2
|
The Company must not distribute or circulate any sales literature or promotional or other
material that contains any reference to the Investment Manager without the Investment Manager's prior approval. To that end, the Company must submit all such material to the Investment Manager in draft form and give the Investment
Manager and its counsel sufficient time to review the draft prior to any deadline for printing.
|
15
|
13.3
|
If for any reason the Investment Manager or any successor to its business ceases to provide
services to the Company under this agreement or similar contractual arrangement, the Company must, at its own expense, do the following:
|
|
(a)
|
as promptly as practicable, take all necessary action to change its name so that reference to
"iM DBi Cayman Managed Futures Subsidiary" is deleted and to cause the Offering Memorandum to be amended to reflect that change of name so that all references to "iM DBi Cayman Managed Futures Subsidiary" are similarly deleted; and
|
|
(b)
|
within 60 days after the termination of this agreement or such similar contractual
arrangement, cease to use in any other manner, including in any sales literature or promotional material:
|
|
(i)
|
the name " iM DBi Cayman Managed Futures Subsidiary" or any name, mark or logo type derived
from it or similar to it; and
|
|
(ii)
|
anything indicating that the Company is managed by or otherwise associated with the
Investment Manager.
|
|
14
|
Releases and indemnity
|
Releases by Company
|
14.1
|
Subject to clause 14.4, the Investment Manager is not liable for any act or omission of any
of the following:
|
|
(a)
|
subject to clauses 4.5 and 4.6, any person through whom investment transactions are effected
for the Company’s account; or
|
|
(b)
|
the Prime Broker, Custodian or any other party having custody or possession of the Company’s
assets; or
|
|
(c)
|
any clearance or settlement system.
|
|
14.2
|
Subject to clause 14.4, the Investment Manager is not responsible for any lost opportunity
whereby the value of the Portfolio could have been increased, nor for any decline in the value of the Portfolio, in each case, however arising.
|
|
14.3
|
Subject to clauses 11.3 and 14.4, the Investment Manager is not be liable for any loss,
damage, liability, cost or expense (of whatever kind) that arises from errors by it of fact or judgment or from any action taken (or omitted to be taken) by it. The Investment Manager gives no warranty as to the performance or
profitability of the Portfolio or any part of it.
|
16
Saving clause
|
14.4
|
Despite the preceding clauses, the Investment Manager remains liable or responsible, as the
case may be, to the extent that the act, omission or error, as the case may be, is attributable to its fraud, wilful default or Gross Negligence.
|
Indemnity by Company
|
14.5
|
The Company indemnifies the Investment Manager, its directors, officers and employees and
each of them against all liabilities, losses, damages, claims, costs and expenses (of whatever kind) that they or any of them may suffer or incur arising out of, or in connection with, this agreement. But the Company is not so liable to
the extent the liability, loss, damage, outgoing cost or expense is due to the Investment Manager's fraud, wilful default or Gross Negligence or due to breach by the Investment Manager of any of its obligations under this agreement.
|
|
14.6
|
For the purpose of section 4 of the Contracts (Rights of Third Parties) Law, 2014 of the
Cayman Islands:
|
|
(a)
|
any director, officer or employee of the Investment Manager (whether existing or in the
future); or
|
|
(b)
|
any successor of the Investment Manager,
|
(each, a third party) may in his own right enforce the indemnity by the Company under the preceding
clause. However, the parties to this agreement may rescind or vary this agreement (including any variation so as to extinguish or alter a third party's entitlement to enforce such indemnity) without the consent of any third party.
Indemnity by Investment Manager
|
14.7
|
The Investment Manager indemnifies the Company against all liabilities, losses, damages,
claims, costs and expenses (of whatever kind) that the Company may suffer or incur arising out of the Investment Manager's fraud, wilful default or Gross Negligence.
|
Further saving clause
|
14.8
|
Nothing in this agreement excludes or restricts any statutory duty or liability that the
Investment Manager or the Company may have under any applicable law.
|
|
15
|
Confidentiality
|
Definitions
|
15.1
|
For the purpose of this clause 15:
|
Personnel,
in relation to a party, means that party's officers, employees, delegates, agents, professional advisors or subcontractors.
17
Representative,
in relation to a party, means any director, officer, employee, delegate, agent, contractor, financier or professional advisor of that party or an Affiliate of that party.
Protection of disclosures of certain information by Investment Manager
|
15.2
|
In making any decision or taking any step in connection with the investment management of
the Portfolio, neither the Investment Manager nor any Affiliate of the Investment Manager is obliged to disclose to the Company or to take into consideration either of the following types of information:
|
|
(a)
|
information the disclosure of which by it to the Company would or might be a breach of duty
or confidence to any other person; or
|
|
(b)
|
information that came to the notice of an employee, officer or agent of the Investment
Manager or of an Affiliate of the Investment Manager, but does not come to the actual notice of the individual making that decision or taking the step.
|
Confidentiality obligations
|
15.3
|
Subject to the next clause, each party must keep confidential the other party's confidential
information which it receives from the other party in connection with this agreement.
|
Permitted use and disclosure
|
15.4
|
Either party may disclose confidential information of the other if any of the following
circumstances applies:
|
|
(a)
|
The disclosure is to a person who already knows the information.
|
|
(b)
|
The other party has consented in writing to the disclosure. The consent may be subject to the
condition that the person to whom the disclosure is to be made enter into a separate confidentiality document with the provider of the information.
|
|
(c)
|
The disclosure is specifically contemplated and permitted by this agreement.
|
|
(d)
|
The disclosure is required by any law or order of any court or pursuant to any direction,
request or requirement (whether or not having the force of law) of any central bank, government, suspicious transaction reporting body or other regulatory or taxation authority (including, but not limited to, the Cayman Islands Monetary
Authority and the Cayman Islands Financial Reporting Authority).
|
|
(e)
|
The disclosure is to the party's Personnel to the extent the Personnel need to know the
information in order to perform a function in connection with this agreement. The recipient must ensure that its Personnel comply with the terms of this clause 15.
|
|
(f)
|
The disclosure is to a Representative in order to provide advice in relation to matters
arising under or in connection with this agreement.
|
18
|
16
|
Termination
|
Definition of Insolvency Event
|
16.1
|
For the purpose of this clause 16:
|
Insolvency
Event, in relation to a person, means anything that reasonably indicates that there is a significant risk that that person is or will become unable to pay its debts as they become due. This includes any of the following:
|
(a)
|
a meeting of the person's creditors being called or held;
|
|
(b)
|
the person entering into any type of agreement, composition or arrangement with, or
assignment for, the benefit of all or any of its creditors;
|
|
(c)
|
a step being taken to make the person bankrupt;
|
|
(d)
|
an application is presented or an order is made for the sequestration of the person's estate;
|
|
(e)
|
a step being taken to wind the person up;
|
|
(f)
|
a step being taken to have a receiver, receiver and manager, administrator, liquidator or
provisional liquidator appointed, or a similar class of insolvency practitioner, to the person or any of its assets or such an appointment taking place;
|
|
(g)
|
the person ceases or threatens to cease to carry on business;
|
|
(h)
|
the person suffers any distress attachment or execution to be levied on or in respect of any
of its assets;
|
|
(i)
|
the person enters into or suffers there to occur any analogous proceedings or events to those
specified in any of the preceding paragraphs; and
|
|
(j)
|
analogous proceedings or events to those specified in any of the preceding paragraphs are
instituted or occur in relation to the person elsewhere than in the Cayman Islands.
|
Termination by mutual agreement or notice
|
16.2
|
This Agreement may be terminated on 60 days’ written notice at any time without payment or
any penalty by the directors, the Trust Board, or the Investment Manager. In the event of a termination, the Investment Manager shall cooperate in the orderly transfer of the Company’s affairs and, at the request of the Trust Board,
transfer any and all books and records of the Company maintained by the Investment Manager on behalf of the Company.
|
19
Termination for breach or insolvency
|
16.3
|
Either party may terminate this agreement immediately by written notice to the other if any
of the following occurs:
|
|
(a)
|
The other party commits a material breach of this agreement that is not rectifiable.
|
|
(b)
|
The other party fails to rectify a material breach of this agreement which is rectifiable
within 30 days after receiving a written notice specifying the breach and requiring rectification.
|
|
(c)
|
An Insolvency Event happens to, or occurs in relation to, the other party.
|
Termination for other causes
|
16.4
|
The Company may terminate this agreement immediately by written notice to the other if:
|
|
(a)
|
the Investment Manager ceases to be able to fulfil its obligations under this agreement due
to a change in the law; or
|
|
(b)
|
the Investment Manager ceases to be permitted to provide its services to the Company under
any applicable law.
|
|
16.5
|
This agreement shall terminate automatically in the event of its assignment thereof, as
defined in the Investment Company Act, or upon termination of:
|
|
(a)
|
the investment sub-advisory agreement between the Investment Manager and iM Global Partner US
LLC (“iM Global”) with respect to the Fund; or
|
|
(b)
|
the investment advisory agreement between the Trust and iM Global with respect to the Fund.
|
Consequences of termination
|
16.6
|
In addition to any other rights, powers or remedies a party may have under this agreement or
at law, if this agreement is terminated under any of the preceding clauses, the following will apply:
|
|
(a)
|
Each party is released from its obligations under this agreement (except those relating to
clauses expressly stated to survive the termination of this agreement).
|
|
(b)
|
Each party retains the rights it has accrued under this agreement. Without limitation to the
previous sentence, the Investment Manager is entitled to receive all fees and other moneys that have accrued and are due up to the date of that termination.
|
|
16.7
|
Termination is without prejudice to completion of transactions already initiated. Those
transactions must be completed by the Investment Manager as soon as practicable.
|
20
Clauses that survive termination
|
16.8
|
The rights and obligations of the parties under the following clauses remain in full force
and effect following termination of this agreement: clauses 1, 11.2, 11.3, 12.2, 14, 15, 18.8 and 18.9.
|
|
17
|
Notices
|
Method of giving notices
|
17.1
|
Any notice or communication required or authorised by this agreement to be given by a party
must be in writing in English and sent by any of the methods set out in the first column of the following table to the recipient's address, fax number or email address that appears below that table. The notice or communication is taken
to be given on the date or at the time set out in the second column.
|
|
Method for giving notices
|
When taken to be given
|
|
By personal delivery
|
On the business day following day of delivery
|
|
By overnight courier service
|
On the business day following the date of confirmation of delivery
|
|
If the recipient has an address in the Cayman Islands, by posting it by prepaid post to the postal address of that
recipient
|
On the second business day following the date it was posted
|
|
If the recipient has an address outside the Cayman Islands, by posting it by prepaid post to the postal address of
that recipient
|
On the fifth business day following the date it was posted
|
|
By fax sent to the recipient's fax number
|
On business day following the date of an error-free transmission report from the sender's fax machine
|
|
By email sent to the recipient's email address
|
On the business day following the day on which the recipient receives the email in readable form providing the
sender has requested and received a delivery receipt for it
|
21
|
Company
|
|
The Directors
|
|
c/o Ogier Global (Cayman) Limited
|
|
00 Xxxxx Xxx
|
|
Camana Bay
|
|
Grand Cayman KY1-9009
|
|
Cayman Islands
|
|
Email Address: xxxx.xxxxxxxxxx@xxxxx.xxx
|
|
Attention: Xxxx Xxxxxxxxxx
|
|
Investment Manager
|
|
000 Xxxxx Xxxxxx
|
|
New York 10017
|
|
United States of America
|
|
Email Address: xxx@xxxxxxxxxxx.xxx
|
|
Attention: Xxxx Xxxxxxx
|
Change of address or fax number
|
17.2
|
If a party gives the other party three business days' notice of a change of its address or
fax number, any notice or communication is only given by that other party if it is delivered, posted, faxed or emailed to the latest address, fax number or email address.
|
|
18
|
Miscellaneous
|
No agency, partnership or other relationship
|
18.1
|
Except as expressly provided in this agreement, neither party is an agent, representative,
trustee, employee, partner or joint venturer of any other party by virtue of this agreement and no party may represent itself as such in any circumstances.
|
22
No authority to act
|
18.2
|
Except as expressly provided in this agreement, neither party has any power or authority to
act for or to assume any obligation or responsibility on behalf of another party.
|
Counterparts
|
18.3
|
This agreement may be executed and delivered in any number of counterparts, all of which
taken together constitute one and the same document.
|
Entire agreement
|
18.4
|
This agreement together with the documents referred to in it contain everything the parties
have agreed in relation to the subject matter they deal with. No party can rely on an earlier written document or anything said or done by or on behalf of another party before this document and those other documents were executed.
|
Further assurance
|
18.5
|
Each party must at its own expense promptly execute all documents and do, or use reasonable
endeavours to cause a third party to do, all acts or things that another party from time to time may reasonably request in order to give full effect to, perfect or complete this agreement and all transactions incidental to it.
|
Governing law and jurisdiction
|
18.6
|
This agreement is governed by the law of the Cayman Islands.
|
|
18.7
|
The parties submit to the exclusive jurisdiction of the courts of the Cayman Islands and the
courts of appeal from them to determine any dispute arising out of or in connection with this agreement. The parties agree not to object to the exercise of jurisdiction of those courts on any basis.
|
Severance
|
18.8
|
If any provision of this agreement is held to be illegal, invalid or unenforceable under the
laws of any jurisdiction:
|
|
(a)
|
that provision is to be treated as being severed from this agreement in the relevant
jurisdiction, but the rest of this agreement will not be affected; and
|
|
(b)
|
the legality, validity and enforceability of the whole of this agreement in any other
jurisdiction will not be affected.
|
|
18.9
|
Without derogating from the preceding clause, the parties agree to negotiate in good faith
the terms of an alternative provision in the relevant jurisdiction in place of the deleted provision.
|
23
Variation
|
18.10
|
No variation of this agreement will be of any force or effect unless it is in writing and
signed by or on behalf of each party to this agreement.
|
Waiver
|
18.11
|
A waiver of any right, power, or remedy under this agreement must be in writing signed by
the party granting it. It may be given subject to any conditions the grantor thinks fit. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement does not amount to a waiver.
|
|
18.12
|
A waiver is only effective in relation to the particular obligation or breach in respect of
which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
|
24
Execution
Executed as a deed on the date that first appears being the date on which it is delivered and takes effect.
Signed for and on behalf of
iM DBi Cayman Managed Futures Subsidiary
/s/ Xxxxx Xxxxxxxxxx
Signature
Xxxxx Xxxxxxxxxx
Print name
Director
Title
Signed for and on behalf of
Dynamic Beta investments, LLC
/s/ XX Xxxxxxx
Signature
DJ Diamond
Print name
General Counsel
Title
25
