ADMINISTRATION, FUND ACCOUNTING AND RECORDKEEPING AGREEMENT
ADMINISTRATION,
FUND ACCOUNTING AND RECORDKEEPING AGREEMENT
THIS AGREEMENT is made as of
this ___ day of _______, 200_, by and between Hatteras VC Co-Investment Fund II,
LLC, a Delaware limited liability company (the “Fund”), and UMB Fund Services,
Inc., a Wisconsin corporation (the “Administrator”).
WHEREAS, the Fund is a limited
liability company which is registered as a closed-end, non-diversified
management investment company under the provisions of the Investment Company Act
of 1940 (the “1940 Act”); and
WHEREAS, in pursuit of its
investment objective, the Fund will invest its assets primarily
in venture-backed companies; and
WHEREAS, the Fund and the
Administrator desire to enter into an agreement pursuant to which the
Administrator shall provide certain administration, fund accounting and
recordkeeping services to the Fund.
NOW, THEREFORE, in
consideration of the mutual promises and agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. Appointment
The Fund hereby appoints the
Administrator as administrator, fund accountant and record keeper of the Fund
for the period and on the terms set forth in this Agreement. The
Administrator accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. Services
(a) Subject to
the direction and control of the Fund and utilizing information provided by the
Fund and its agents and service providers, the Administrator will provide the
services listed on Schedule A
hereto. The duties of the Administrator shall be confined to those
expressly set forth therein, and no implied duties are assumed by or may be
asserted against the Administrator hereunder. The Fund agrees not to
(i) make any modifications to its private placement memorandum or (ii) adopt any
policies which would materially increase the obligations and responsibilities of
the Administrator hereunder without the prior written approval of the
Administrator, which approval shall not be unreasonably
withheld.
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(b) Hatteras
Capital Investment Management, LLC (the “Manager”), the manager of the Fund,
shall use reasonable efforts to cause the investment adviser(s), venture capital
firms, prime broker and/or custodian, legal counsel, independent accountants and
other service providers and agents, past or present, for the Fund to cooperate
with the Administrator and to provide the Administrator with such information,
documents and advice relating to the Fund as necessary and/or appropriate or as
requested by the Administrator, in order to enable the Administrator to perform
its duties hereunder. In connection with its duties hereunder, the
Administrator shall (without investigation or verification) be entitled and is
hereby instructed to, rely upon any and all oral or written instructions,
advice, information or documents provided to the Administrator by an officer or
representative of the Manager or the Fund or by any of the aforementioned
persons. The Administrator shall be entitled to rely on any document
that it reasonably believes to be genuine and to have been signed or presented
by the proper party. Fees charged by such persons shall not be an
expense of the Administrator. The
Administrator shall not be held to have notice of any change of authority of any
officer, agent, representative or employee of the Manager, the Fund, investment
adviser(s), venture capital firms or service provider until receipt of written
notice thereof from the Fund.
(c) At any time,
the Administrator may request instructions from the Fund with respect to any
matter arising in connection with this Agreement. If such
instructions are not received within a reasonable time, the Administrator may
seek advice from legal counsel for the Fund at the expense of the Fund, or its
own legal counsel at its own expense, and it shall not be liable for any action
taken or not taken by it in good faith in accordance with such instructions or
in accordance with advice of counsel.
(d) The Administrator
hereby agrees that all records which it maintains for the Fund pursuant to its
duties hereunder are the property of the Fund and further agrees to surrender
promptly to the Fund any of such records upon the Manager’s
request.
(e) It is
understood that in determining security valuations, as appropriate, the
Administrator employs one or more pricing services to determine valuations of
portfolio securities for purposes of calculating net asset values of the Fund
and as provided in the Fund’s prospectus or offering memorandum. The
Administrator shall price the securities and other holdings of the Fund for
which market quotations or prices are available by the use of such
services. For those
securities where prices are not provided by the pricing service(s) utilized by
the Administrator, the Fund shall approve, in good faith, the method for
determining the fair value of the securities. At such times as are
necessary and in accordance with such procedures, the Manager shall determine or
obtain the valuation of the securities (subject always to the review and
supervision of the Fund’s Board) and shall deliver to the Administrator the
resulting prices for use in its calculation of net asset values; in particular,
the Administrator shall price investments in and private direct investments
based on the valuations provided to it by the Manager. The
Administrator is authorized to rely on the prices provided by the Manager or
other authorized representatives of the Fund without investigation or
verification.
(f) The Manager
and investment adviser(s) have and retain primary responsibility for all
compliance matters relating to the Fund, including but not limited to compliance
with all applicable provisions of the Securities Act, the 1940 Act, the
Securities Exchange Act of 1934, state securities laws, the Internal Revenue
Code of 1986, as amended, the USA PATRIOT Act of 2001 (including checking
persons submitting subscription documents against the Office of Foreign Asset
Controls (“OFAC”) list if the Administrator is not directed to do so), the
Xxxxxxxx-Xxxxx Act of 2002 and the policies and limitations of the Fund relating
to the portfolio investments as set forth in the Private Offering Memorandum
dated September 6, 2007, and any successor thereto (the “Offering
Memorandum”). The Administrator’s monitoring and other functions
hereunder shall not relieve the Manager and the investment adviser(s) of their
primary day-to-day responsibility for assuring such
compliance. Notwithstanding the foregoing, the Administrator will be
responsible for its own compliance with such statutes insofar as such statutes
are applicable to the services it has agreed to provide hereunder, and will
promptly notify the Fund if it becomes aware of any non-compliance which relates
to the Fund. The Administrator shall provide the Fund with quarterly
and annual certifications (on a calendar basis) with respect to the design and
operational effectiveness of its compliance and procedures.
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(g) The Fund hereby
certifies that it has undertaken (or will undertake in a timely manner) all
filings and other actions necessary to permit the Fund to lawfully offer and
sell Units in the Fund without registration under the Securities Act and the
applicable securities laws of each state and territory in which the Fund intends
to offer and sell Units. Except as otherwise noted on Schedule A hereto,
the Fund is not delegating to the Administrator any responsibility to monitor or
otherwise take any actions with respect to the qualification for or maintenance
of any applicable Federal or state securities law exemptions.
(h) The Administrator
shall maintain a disaster recovery and business continuity plan and adequate and
reliable computer and other equipment necessary and appropriate to carry out its
obligations under this Agreement. Upon the Fund’s reasonable request,
the Administrator shall provide supplemental information concerning the aspects
of its disaster recovery and business continuity plan that are relevant to the
services provided hereunder.
3. Fees; Delegation;
Expenses
(a) In
consideration of the services rendered pursuant to this Agreement, the Fund will
pay the Administrator a fee, computed and payable monthly based on monthly net
assets, plus out-of-pocket expenses, each as provided in Schedule B hereto. In
addition, to the extent that the Administrator corrects, verifies or addresses
any prior actions or inactions by the Fund or by any other service provider, the
Administrator shall be entitled to additional fees as provided in Schedule
B. Fees shall be adjusted in accordance with Schedule B or as
otherwise agreed to in writing by the parties from time to time. The parties may
amend this Agreement to include fees for any additional services requested by
the Fund, enhancements to current services, or to add funds for which the
Administrator has been retained. The Fund agrees to pay the
Administrator’s then current rate for additional services provided, or for
enhancements to existing services currently provided, after the execution of
this Agreement.
(b) For
the purpose of determining fees payable to the Administrator, net asset value
shall be computed in accordance with the Fund’s Limited Partnership Agreement,
the Offering Memorandum and the resolutions of the Fund, if any. The fee for the
period from the day of the month charges begin accruing under this Agreement
until the end of that month shall be pro-rated according to the proportion that
such period bears to the full monthly period. Upon any termination of
this Agreement before the end of any month, the fee for such part of a month
shall be pro-rated according to the proportion which such period bears to the
full monthly period and shall be payable upon the date of termination of this
Agreement. Should the Fund be liquidated, merged with or acquired by
another fund or investment company, any accrued fees shall be immediately
payable.
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(c) The
Administrator will bear all expenses incurred by it in connection with the
performance of its services under Section 2, except as otherwise provided
herein. The Administrator shall not be required to pay or finance any
costs and expenses incurred in the operation of the Fund, including, but not
limited to: taxes; interest; brokerage fees and commissions; salaries, fees and
expenses of the Manager or any officers; any Securities and Exchange Commission
(the “SEC”) fees and state Blue Sky fees; advisory fees; charges of custodians,
venture capital firms, prime brokers, transfer agents, dividend disbursing and
accounting services agents and other service providers; security pricing
services; insurance premiums; outside auditing and legal expenses, including but
not limited to attorneys’ fees incurred in connection with responding to or
complying with SEC or other regulatory investigations, inquiries or subpoenas;
costs of organization and maintenance of corporate existence; taxes and fees
payable to federal, state and other governmental agencies; preparation,
typesetting, printing, proofing and mailing of prospectuses, statements of
additional information, Offering Memoranda or notices, forms or applications and
proxy materials for regulatory purposes and for distribution to prospective or
current limited partners; preparation, typesetting, printing, proofing and
mailing and other costs of shareholder reports; expenses in connection with the
electronic transmission of documents and information including electronic
filings with the SEC and the states; research and statistical data services;
expenses incidental to holding meetings of the Fund’s limited partners and
Manager; fees and expenses associated with internet, e-mail and other related
activities; expenses incurred for distribution of Units and extraordinary
expenses. The Administrator shall not be required to pay any Blue Sky
fees or take any related Blue Sky actions except as set forth on Schedule A, and then
not unless and until it has received the amount of such fees from the
Fund.
(d) Except
as otherwise specified, fees payable hereunder shall be calculated in arrears
and billed on a quarterly basis. The Fund agrees to pay all fees
within thirty days of receipt of each invoice or other method of notification of
payment due the Administrator. The Administrator retains the right to
charge interest in the amount of 1 percent per month on any amounts that remain
unpaid beyond such thirty day period.
4. Proprietary and Confidential
Information
The Administrator agrees on behalf of
itself and its employees to treat confidentially and as proprietary information
of the Fund all records relative to the Fund, its business, and the Fund’s
members, including such proprietary information received by the Administrator
prior to the Effective Date (“Confidential Information”) not to use such records
and information for any purpose other than performance of its responsibilities
and duties hereunder, and not to disclose such information except where the
Administrator may be exposed to civil or criminal proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities or court process, when subject to governmental or regulatory audit
or investigation, or when so requested by the Fund. In case of any requests or
demands for inspection of the records of the Fund, the Administrator will
endeavor to notify the Manager promptly and to secure instructions from a
representative of the Manager as to such inspection, unless prohibited by law
from making such notification. Records and information which have become known
to the public through no action or inaction of the Administrator or any of its
employees, agents or representatives, and information which was already in the
possession of the Administrator prior to the date hereof, shall not be subject
to this paragraph.
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5. Limitation of
Liability
(a) The Administrator
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except for a loss resulting from the Administrator’s willful
misfeasance, bad faith or gross negligence in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement. Furthermore, the Administrator shall not be liable for (i)
any action taken or omitted to be taken in accordance with or in reliance upon
written or oral instructions, advice, data, documents or information (without
investigation or verification) received by the Administrator from or on behalf
of the Manager or an officer or representative of the Fund, or from a
representative of any of the parties referenced in Section 2, (ii)
its reliance on the security valuations without investigation or verification
provided by pricing service(s), the Manager, a Portfolio Manager or
other representatives of the Fund, (iii) any liability arising from the offer or
sale of any Interest by the Fund in reliance on exemptions from registration
under the Securities Act and the applicable securities laws of each state and
territory in which the Fund intends to offer and sell Units, or (iv) any action
taken or omission by the Fund, the Manager, investment adviser(s), Portfolio
Mangers or any past or current service provider.
(b) The
Administrator assumes no responsibility hereunder, and shall not be liable, for
any default, damage, loss of data or documents, errors, delay or any other loss
whatsoever caused by events beyond its reasonable control. The
Administrator will, however, take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond its
control.
(b) The
Fund agrees to indemnify and hold harmless the Administrator, its employees,
agents, officers, directors, affiliates and nominees (collectively, the
“Indemnified Parties”) from and against any and all claims, demands, actions and
suits, and from and against any and all judgments, liabilities, losses, damages,
costs, charges, reasonable counsel fees and other expenses of every nature and
character which may be asserted against or incurred by any Indemnified Party or
for which any Indemnified Party may be held liable (a “Claim”) arising out of or
in any way relating to (i) the Administrator’s actions or omissions, (ii) the
Administrator’s reliance on, implementation of or use of (without investigation
or verification) advice, instructions, requests, directions, information, data,
records and documents received by the Administrator from any party referenced in
Section 2 hereof or other representative of the Fund, (iii) any breach of any of
the Fund’s obligations, representations or warranties hereunder, or (iv) any
action taken by or omission of the Fund, its Manager, any Portfolio Managers,
investment adviser(s) or any past or current service
provider. The Indemnified Parties shall not be indemnified to the
extent a Claim resulted from the Administrator’s or the Indemnified Parties’
willful misfeasance, bad faith, or gross negligence in the performance of the
Administrator’s duties hereunder or from reckless disregard by the Administrator
of its obligations and duties hereunder.
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(d) The
Administrator agrees to indemnify and hold harmless the Fund, its employees,
officers and directors (collectively, the “Fund Indemnified Parties”) from and
against any and all claims, demands, actions and suits, and from and against any
and all judgments, liabilities, losses, damages, costs, charges, reasonable
counsel fees and other expenses of every nature and character which may be
asserted against or incurred by any Fund Indemnified Party or for which any Fund
Indemnified Party may be held liable, arising out of or in any way relating to
the Administrator’s willful misfeasance, bad faith or gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
(e) In no event and under no
circumstances shall either party, its affiliates or any of its or their
officers, directors, members, agents or employees be liable to anyone,
including, without limitation, the other party, under any theory of tort,
contract, strict liability or other legal or equitable theory for lost profits,
exemplary, punitive, special, indirect or consequential damages for any act or
failure to act under any provision of this Agreement regardless of whether such
damages were foreseeable and even if advised of the possibility thereof. The
indemnity and defense provisions set forth in this Section 5 shall indefinitely
survive the termination and/or assignment of this Agreement.
6. Term
(a) This
Agreement shall become effective as of the date this Agreement is executed and
shall continue in effect until terminated as provided
herein. Either party may terminate this Agreement at any time by
giving the other party a written notice not less than sixty (60) days prior
to the date the termination is to be effective.
(b) The terms of this
Agreement shall not be waived, altered, modified, amended or supplemented in any
manner whatsoever except by a written instrument signed by the Administrator and
the Fund.
(c) Notwithstanding
anything herein to the contrary, upon the termination of this Agreement or the
liquidation of the Fund, the Administrator shall deliver the records of the Fund
(in the form maintained by the Administrator to the extent permitted by
applicable license agreements) to the Fund or person(s) designated by the Fund
at the Fund’s cost and expense, and thereafter the Fund or its designee shall be
solely responsible for preserving the records for the periods required by all
applicable laws, rules and regulations. The Administrator shall be entitled to
maintain a copy of such records for the sole purpose of defending itself against
any action arising under or as a result of this Agreement or as otherwise
required or permitted by law. The Fund shall be responsible for all
expenses associated with the movement (or duplication) of records and materials
and conversion thereof to a successor fund accounting and administrative
services agent, including all reasonable trailing expenses incurred by the
Administrator. In addition, in the event of termination of this
Agreement, or the proposed liquidation or merger of the Fund, and the Fund
requests the Administrator to provide additional services in connection
therewith, the Administrator shall provide such services and be entitled to such
compensation as the parties may mutually agree.
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(d) Notwithstanding
any other provision of this Agreement, in the event of an agreement to enter
into a transaction that would result in a Change of Control, as hereinafter
defined, of the Fund’s Manager, investment adviser or sponsor, the Fund’s
ability to terminate this Agreement pursuant to this Section 6 shall be
suspended from the time of such agreement until eighteen months after the Change
of Control. For purposes of this Agreement, a “Change of Control” of
the Manager, investment adviser or sponsor means a change in ownership or
control of more than fifty percent (50%) of the common stock or shares of
beneficial interest of such Manager, investment adviser or sponsor or its parent
company.
7. Non-Exclusivity
The services of the Administrator
rendered to the Fund are not deemed to be exclusive. The
Administrator may render such services and any other services to others,
including other investment vehicles, including hedge funds.
8. Governing Law;
Invalidity
This Agreement shall be governed by
Wisconsin law, excluding the laws on conflicts of laws. To the extent
that the applicable laws of the State of Wisconsin, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control, and nothing herein shall be construed in a manner inconsistent
with the 1940 Act or any rule or order of the SEC thereunder. Any
provision of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties.
9. Notices
Any notice required or permitted to be
given by either party to the other shall be in writing and shall be deemed to
have been given when sent by registered or certified mail, postage prepaid,
return receipt requested, as follows: Notice to the Administrator
shall be sent to UMB Fund Services, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxxx, XX, 00000, Attention: Xxxxx X. Xxxxxxx, with a copy to General
Counsel, and notice to the Fund shall be sent to Hatteras VC Co-Investment Fund
II, LLC, 0000 Xxxxxxxxx Xxxxxx Xxxxx, #000, Xxxxxxx, XX, 00000,
Attention: J. Xxxxxxx Xxxxxx, COO
10. Entire
Agreement
This Agreement, together with the
Schedules attached hereto, constitutes the entire Agreement of the parties
hereto.
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11. Counterparts
This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
agreement but such counterparts shall together constitute but one and the same
instrument. The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
12. Amendments
This Agreement may be amended only by
the written agreement of the parties hereto.
13. Assignment;
Successors and Assigns
Neither party may assign this Agreement
without the prior written consent of the other party; provided, however, that
the Administrator may assign its rights hereunder to any subsidiary or affiliate
with thirty (30) days’ prior written notice of such assignment. This
Agreement shall be binding upon and shall insure to the benefit of the parties
hereto and their respective successors and permitted assigns. To the extent that
the Administrator appoints other parties to carry out some or all of its
responsibilities under this Agreement, the Administrator (i) will, prior to
appointing such other party, use reasonable care in determining that such other
party is able to provide such services and (ii) will remain responsible for the
provision of such services to the Fund.
14. Legal
Advice
Notwithstanding anything in this
Agreement to the contrary, the services provided by the Administrator hereunder
do not constitute, nor shall they be construed as constituting, legal advice or
the provision of legal services for or on behalf of the Fund or any other
person.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by a duly authorized
officer as of the day and year first above written.
(the
“Fund”)
By: Hatteras
Capital Investment Partners, LLC, General Partner
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By:
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Xxxxx
X. Xxxxxxx, Managing
Member
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UMB
FUND SERVICES, INC.
(“Administrator”)
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By:
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Xxxx
X. Xxxxx, Chief Executive
Officer
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Schedule
A
to
the
Administration,
Fund Accounting and Recordkeeping Agreement
by
and between
and
UMB
Fund Services, Inc.
Services
Subject
to the direction and control of the Fund’s Manager and utilizing information
provided by the Fund and its agents, the Administrator will:
Accounting
and Reporting Services
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Maintain
books and records in accordance with the terms of the applicable operating
agreements and generally accepted accounting
principles;
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Maintain
checkbook registers and facilitate the payment of vendor invoices (UMB
Fund Services, Inc., shall not be a signatory on any bank
accounts);
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Coordinate
transfer of funds for purchase of investments and inter-bank
transfers;
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Compute
capital call allocations by use of funds for each
investor;
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Compute
distribution payments and allocations of profit, loss, income and expense
to investors in
accordance with the applicable operating agreements with supporting detail
of preferred return, catch-up and other special allocation
provisions;
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Maintain
capital account detail for each investor, including income and loss
allocations, capital contributions and
distributions;
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Maintain
database detail of all portfolio investment
transactions;
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Maintain
database detail of each capital contribution, remaining capital
commitments and each distribution;
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Coordinate
and supervise the annual audit including: prepare and/or gather all
supporting documentation for audit review; cash, custody and investment
confirmations; legal and audit representation letters; and follow-up on
all questions and requests for additional
information;
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Provide
work papers sufficient to permit the preparation and filing of all federal
and state income tax returns (and such other required tax filings as may
be agreed to by the parties) by the Fund’s tax
accountants;
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Prepare
and distribute quarterly and annual financial reports to investors in a
format and on a timetable consistent with the requirements of the
applicable operating documents;
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Prepare
and distribute individual statements of investors’ capital accounts on a
quarterly basis for
each year-to-date and inception-to-date period as
required;
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Prepare
internal management reports relating to the activities of the Fund as
requested, and
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Compute
gross and net internal rate of return calculations, as
requested.
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Administrative
Services
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Prepare
draft notification memorandums to investors for capital call requests and
distribution payments for review and
approval;
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Distribute
approved capital call and distribution notifications to investors and
their advisors as
directed;
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Coordinate
payment of cash distributions by check or
wire;
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Reconcile
investment securities held in
custody;
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Coordinate
relationships with professionals, including attorneys, bankers,
independent accountants and distribution agents used by the
Fund;
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Maintain
database of investor data required for dissemination of reports and
notifications, preparation of tax information and payment of cash and
in-kind distributions;
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Provide
timely response to investor inquiries and requests for additional
information as directed, and
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Provide
secured investor account online reporting
services.
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Subscription
Period Services
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Development
of investor database;
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Data
collection and input for the initial and subsequent
closings;
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At
the written or electronic direction of the Manager, assist the Fund with
its monitoring obligations under the USA PATRIOT Act by (1) at such time
as directed by the Manager, rejecting Subscription Agreements that are not
accompanied by required identifying information; (2) providing an initial
check of identifying information against the LEXIS/NEXIS® AML database (or
any successor thereto) licensed by the Administrator; (3) providing an
initial check of persons submitting Subscription Agreements against the
OFAC list; (4) upon consultation with the Manager, filing a suspicious
activity report with the appropriate authorities; (5) permitting federal
regulators access to such information and records maintained by the
Administrator relating to the Administrator’s implementation of the Fund’s
monitoring obligations, as they may request, and (6) permitting such
federal regulators to inspect the Administrator’s implementation of such
monitoring obligations on behalf of the
Fund;
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Coordination
of subscription approval process with counsel, as requested,
and
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Other
administrative functions as mutually agreed upon in connection with the
subscription process.
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Additional
Work
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Work
requested of UMB Fund Services, Inc., that is considered to be outside the
scope of the accounting, reporting and administrative services set forth
above, including but not limited to Blue
Sky filing services, is subject to additional fees at the prevailing
hourly rate.
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