EXHIBIT Item 24(2)(g)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___ day of _____________, 2004 by and between
MULTI-STRATEGY HEDGE OPPORTUNITIES LLC, a Delaware limited liability company
(the "Fund"), and XXXXXXX XXXXX INVESTMENT MANAGERS, LLC, a Delaware limited
liability company (hereinafter referred to as the "Adviser").
W I T N E S S E T H :
WHEREAS, the Fund is engaged in business as a closed-end investment
company registered under the Investment Company Act of 1940, as amended
(hereinafter referred to as the "Investment Company Act"); and
WHEREAS, the Adviser is engaged principally in rendering management and
investment advisory services and is registered as an investment adviser under
the Investment Advisers Act of 1940; and
WHEREAS, the Fund requires investment advisory services for, among other
things, the allocation and reallocation of its assets primarily among hedge
funds, commodity pools and separate accounts (collectively, "Portfolio Funds")
managed by portfolio fund managers (the "Portfolio Fund Managers") that pursue
alternative investment strategies; and
WHEREAS, the Fund desires to retain the Adviser to render management and
investment advisory services to the Fund in the manner and on the terms
hereinafter set forth; and
WHEREAS, the Adviser is willing to provide management and investment
advisory services to the Fund on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Fund and the Adviser hereby agree as follows:
ARTICLE I
DUTIES OF THE ADVISER
The Fund hereby employs the Adviser to act as an investment manager and
investment adviser of the Fund and to furnish or arrange for affiliates to
furnish, the management and investment advisory services described below,
subject to policies of, review by and overall control of the Board of Directors
of the Fund (the "Directors"), for the period and on the terms and conditions
set forth in this Agreement. The Adviser hereby accepts such employment and
agrees during such period, at its own expense, to render, or arrange for the
rendering of, such services and to assume the obligations herein set forth for
the compensation provided for herein. The Adviser and its affiliates shall for
all purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided or authorized, have no authority to act for or
represent the Fund in any way or otherwise be deemed an agent of the Fund.
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(a) Management Services. The Adviser shall perform, or arrange for the
performance by affiliates of, the management services necessary for the
operation of the Fund. The Adviser shall provide the Fund with office space,
equipment and facilities and such other services as the Adviser, subject to
review by the Directors, shall from time to time determine to be necessary or
useful to perform its obligations under this Agreement. The Adviser shall also,
on behalf of the Fund, conduct relations with custodians, depositories, transfer
agents, dividend disbursing agents, other servicing agents, administrators,
accountants, attorneys, underwriters, brokers and dealers, corporate
fiduciaries, insurers, banks and such other persons in any such other capacity
deemed to be necessary or desirable. The Adviser shall generally monitor the
Fund's compliance with investment policies and restrictions as set forth in the
current registration statement relating to the Fund under the Investment Company
Act (the "Registration Statement"). The Adviser shall make reports to the
Directors of its performance of the obligations hereunder and furnish advice and
recommendations with respect to such other aspects of the business and affairs
of the Fund as it shall determine to be desirable.
(b) Investment Advisory Services. The Adviser shall provide (or arrange
for affiliates to provide) the Fund with such investment research, advice and
supervision as the latter may from time to time consider necessary for the
proper supervision of the assets of the Fund, shall furnish continuously an
investment program for the Fund and shall determine from time to time which
securities shall be purchased, sold or exchanged and what portion of the assets
of the Fund shall be held in the various Portfolio Funds and other securities,
options, futures, and options on futures in which the Fund invests or cash,
subject always to the restrictions set forth in the First Amended and Restated
Limited Liability Company Agreement and By-Laws of the Fund, as amended from
time to time, the provisions of the Investment Company Act and the statements
relating to the Fund's investment objective, investment policies and investment
restrictions as the same are set forth in the Fund's Registration Statement.
Without limiting the generality of the preceding sentences, it is agreed that
the Adviser will be responsible for (i) all direct investment decisions on
behalf of the Fund and (ii) the selection and monitoring of the Portfolio Fund
Managers and Portfolio Funds through which the assets of the Fund are invested;
provided, however, that the Adviser shall not be responsible for any specific
investment decision made by a Portfolio Fund Manager. The Adviser shall also
make decisions for the Fund as to the manner in which voting rights, rights to
consent to corporate action and any other rights pertaining to the Fund's
portfolio securities shall be exercised. Should the Directors at any time,
however, make any definite determination as to investment policy and notify the
Adviser thereof in writing, the Adviser shall be bound by such determination for
the period, if any, specified in such notice or until similarly notified that
such determination has been revoked. The Adviser shall take, on behalf of the
Fund, all actions that it deems necessary to implement the investment policies
determined as provided above, and in particular shall negotiate the terms of
purchase of interests in Portfolio Funds and place all orders for the purchase
or sale of portfolio securities for the Fund's account with brokers or dealers
selected by it, and to that end, the Adviser is authorized as the agent of the
Fund to give instructions to the custodian of the Fund as to deliveries of
securities and payments of cash for the account of the Fund. In connection with
the selection of such brokers or dealers and the placing of such orders with
respect to assets of the Fund, the Adviser is directed at all times to seek to
obtain execution and price within the policy guidelines determined by the
Directors as set forth in the prospectus that forms a part of the Fund's
Registration Statement. Subject to this requirement and the provisions of the
Investment Company Act, the Securities Exchange Act of 1934, as amended, and
other applicable provisions
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of law, the Adviser may select brokers or dealers with which it or the Fund is
affiliated. The Adviser shall also be authorized and empowered to supply the
Fund's administrator and other service providers of the Fund with such
information and instructions as may be necessary or appropriate to enable such
persons to perform their duties in accordance with the other applicable
agreements entered into by the Fund.
(c) Affiliated Sub-Advisers. In carrying out its responsibilities
hereunder, the Adviser may employ, retain or otherwise avail itself of the
services of other persons or entities, including, without limitation, affiliates
of the Adviser, on such terms as the Adviser shall determine to be necessary,
desirable or appropriate. However, if the Adviser chooses to retain or avail
itself of the services of another person or entity to manage assets of the Fund,
such other person or entity must be (i) an affiliate of the Adviser, (ii)
retained at the Adviser's own cost and expense, and (iii) retained subject to
the requirements of Section 15 of the Investment Company Act. Retention of one
or more affiliated sub-advisers, or the employment or retention of other persons
or entities to perform services, shall in no way reduce the responsibilities or
obligations of the Adviser under this Agreement, and the Adviser shall be
responsible for all acts and omissions of such affiliated sub-advisers, or other
persons or entities, in connection with the performance of the Adviser's duties
hereunder.
(d) Notice Upon Change in Partners of Adviser. The Adviser is a limited
liability company. The Adviser will notify the Fund of any change in the
membership of the company within a reasonable time after such change.
ARTICLE II
ALLOCATION OF CHARGES AND EXPENSES
(a) The Adviser. The Adviser assumes and shall pay for maintaining the
staff and personnel necessary to perform its obligations under this Agreement,
and shall at its own expense, provide the office space, equipment and facilities
which it is obligated to provide under Article I hereof, and shall pay all
compensation of officers of the Fund and all Directors who are affiliated
persons of the Adviser.
(b) The Fund. The Fund assumes and shall pay or cause to be paid all other
expenses of the Fund (except for the expenses paid by FAM Distributors, Inc.),
including, without limitation: organizational costs, redemption expenses,
expenses of portfolio transactions, expenses of registering interests in the
Fund under federal and state securities laws, certain pricing costs, expenses of
printing shareholder reports, stock certificates (if any), prospectuses and
statements of additional information, Securities and Exchange Commission fees,
interest, taxes, custodian and transfer agency fees, fees and actual
out-of-pocket expenses of Directors who are not affiliated persons of the
Adviser, fees for legal and auditing services, litigation expenses, costs of
printing proxies and other expenses related to shareholder meetings, and other
expenses properly payable by the Fund.
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ARTICLE III
COMPENSATION OF THE ADVISER
(a) Investment Management Fee. For the services rendered, the facilities
furnished and expenses assumed by the Adviser, the Fund shall pay to the Adviser
at the end of each calendar month a fee at the annual rate of 1.50% of the
average net assets of the Fund commencing on the day following effectiveness
hereof, as determined and computed in accordance with the description of the
determination of net asset value contained in the Registration Statement. If
this Agreement becomes effective subsequent to the first day of a month or shall
terminate before the last day of a month, compensation for that part of the
month this Agreement is in effect shall be prorated in a manner consistent with
the calculation of the fee as set forth above.
(b) Fee Payment. Payment of the Adviser's compensation for the preceding
month shall be made as promptly as possible after completion of the computations
contemplated by Article III(a) above. During any period when the determination
of net asset value is suspended by the Board of Directors, the average net asset
value of a share for the last business day prior to such suspension shall for
this purpose be deemed to be the net asset value at the close of each succeeding
business day until it is again determined.
ARTICLE IV
LIMITATION OF LIABILITY OF THE ADVISER
The Adviser shall not be liable for any error of judgment or mistake of
law or for any loss arising out of any investment or for any act or omission in
the management of the Fund, except for willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder. As used in this Article IV, the term
"Adviser" shall include any affiliates of the Adviser performing services for
the Fund contemplated hereby and the partners, members, shareholders, directors,
officers and employees of the Adviser and such affiliates.
ARTICLE V
ACTIVITIES OF THE ADVISER
The services of the Adviser to the Fund are not to be deemed to be
exclusive, and the Adviser and any person controlled by or under common control
with the Adviser (for purposes of this Article V referred to as "affiliates") is
free to render services to others. It is understood that Directors, officers,
employees and shareholders of the Fund are or may become interested in the
Adviser and its affiliates, as directors, officers, employees, members, partners
and shareholders or otherwise and that the Adviser and the directors, officers,
employees, members, partners and shareholders of the Adviser and its affiliates
are or may become similarly interested in the Fund as shareholders or otherwise.
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ARTICLE VI
DURATION AND TERMINATION OF THIS CONTRACT
This Agreement shall become effective as of the date first written above
and shall remain in force for a period of two years thereafter and thereafter
continue from year to year, but only so long as such continuance is specifically
approved at least annually by (i) the Directors, or by the vote of a majority of
the outstanding voting securities of the Fund, and (ii) a majority of those
Directors who are not parties to this Agreement or interested persons of any
such party cast in person at a meeting called for the purpose of voting on such
approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Directors or by vote of a majority of the outstanding voting
securities of the Fund, or by the Adviser, on sixty days' written notice to the
other party. This Agreement shall automatically terminate in the event of its
assignment.
ARTICLE VII
AMENDMENTS OF THIS AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the vote of a majority of outstanding voting
securities of the Fund, and (ii) a majority of those Directors who are not
parties to this Agreement or interested persons of any such party cast in person
at a meeting called for the purpose of voting on such approval.
ARTICLE VIII
DEFINITIONS OF CERTAIN TERMS
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the rules and regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under the
Investment Company Act.
ARTICLE IX
GOVERNING LAW
This Agreement shall be construed in accordance with laws of the State of
New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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ARTICLE X
LIMITATION OF OBLIGATIONS OF THE FUND
The obligations of the Fund shall be limited to the assets of the Fund,
and if the Fund shall establish different series, each series shall be separate
from the obligations of any other series of the Fund, and any one series of the
Fund shall not be liable for the obligations of any other series of the Fund.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
MULTI-STRATEGY HEDGE OPPORTUNITIES LLC
By:
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Name: Xxxxx X. Xxxxx
Title: President
XXXXXXX XXXXX INVESTMENT
MANAGERS, LLC
By:
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its Managing Member
By:
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Name:
Title:
