Exhibit 10.1
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INVESTMENT SUB-ADVISORY AGREEMENT
INVESTMENT SUB-ADVISORY AGREEMENT (the "Agreement") dated
as of December 21, 2001 by and among UST Private Equity Investors Fund,
Inc., a Maryland corporation (the "Company"), United States Trust Company
of New York, a New York bank and trust company ("UST"), U.S. Trust Company,
a Connecticut state bank and trust company ("USTCT," and together with UST,
the "Managing Investment Adviser") and U.S. Trust Company, N.A.("USTNA"), a
national banking association.
WHEREAS, the Company is a closed-end, management
investment company that has elected to be treated as a business development
company under the Investment Company Act of 1940, as amended;
WHEREAS, the Managing Investment Adviser is the
investment adviser to the Company;
WHEREAS, the Managing Investment Adviser desires to
retain USTNA to render investment sub-advisory services to the Company, and
USTNA is willing to so render such services;
NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained, it is agreed between the parties hereto
as follows:
1. Definitions. As used in this Agreement, the following
terms have the meanings set forth below:
(a) "Board of Directors" means the board of directors of
the Company;
(b) "Company" means UST Private Equity Investors Fund,
Inc.;
(c) "Disabling Conduct" means, on the part of the
investment sub-adviser, any willful misfeasance, bad faith, or gross
negligence in the performance of its duties owed to the Company, or
reckless disregard of its obligations and duties owed to the Company;
(d) "Disinterested Director" has the meaning set forth in
Section 10 hereof;
(e) "Director" means any member of the Board of
Directors;
(f) "Exchange Act" means the Securities Exchange Act of
1934, as amended;
(g) "Indemnified Person" has the meaning set forth in
Section 10 hereof;
(h) "Investment Company Act" means the Investment Company
Act of 1940, as amended;
(i) "Investment Advisory Agreement" means the management
agreement between the Managing Investment Adviser and the Company, as
amended, dated December 9, 1994;
(j) "Organizational Documents" means the articles of
incorporation and by-laws of the Company, each as amended from time to
time;
(k) "Registration Statement" means the Registration
Statement of the Company under the Securities Act, as amended or
supplemented from time to time;
(l) "Securities Act" means the Securities Act of 1933, as
amended;
(m) "Share" has the meaning set forth in the Registration
Statement;
(n) "UST" means the United States Trust Company of New
York;
(o) "USTCT" means U.S. Trust Company;
(p) "USTNA" means United States Trust Company, N.A.
2. Appointment. The Managing Investment Adviser hereby
appoints USTNA to act as investment sub-adviser to the Company for the
period and on the terms set forth in this Agreement. USTNA accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided. USTNA may, in its discretion, provide such
services through its own employees or the employees of one or more
affiliated companies that are qualified to act as investment sub-adviser to
the Company under applicable law and are under the common control of U.S.
Trust Corporation provided (i) that all persons, when providing services
hereunder, are functioning as part of an organized group of persons, and
(ii) the use of an affiliate's employees does not result in an assignment
of this agreement under the Investment Company Act; and (iii) the use of an
affiliate's employees has been approved by the Board of Directors of the
Company.
3. Delivery of Documents. The Managing Investment Adviser
has furnished USTNA with copies properly certified or authenticated of each
of the following:
(a) The Organizational Documents of the Company;
(b) Investment Advisory Agreement;
(c) Resolutions of the Board of Directors authorizing the
appointment of the Managing Investment Adviser as such and the execution
and delivery of the Investment Advisory Agreement;
(d) Resolutions of the Board of Directors authorizing the
appointment of the USTNA as investment sub-adviser and the execution and
delivery of the Investment Advisory Agreement;
(e) The Registration Statement.
The Managing Investment Adviser will furnish USTNA from
time to time with copies of all amendments of or supplements to the
foregoing, if any.
4. Sub-Advisory Services. Subject to the supervision of
the Board of Directors of the Company and the oversight of the Managing
Investment Adviser, at the request of the Managing Investment Adviser,
USTNA will provide a continuous investment program for the Company,
including investment research and management with respect to all securities
and investments of the Company. At the request of the Managing Investment
Adviser, USTNA will determine what securities and other investments will be
purchased, retained or sold by the Company. At the request of the Managing
Investment Adviser, USTNA will perform any or all of the other duties of
the Managing Investment Adviser under the Investment Advisory Agreement.
USTNA will provide the services rendered by it hereunder in accordance with
the Company's investment objectives and policies as stated in the
Prospectus, the Company's policies and procedures and the requirements
applicable to the Managing Investment Adviser under the Investment Advisory
Agreement. USTNA further agrees that it:
(a) will conform with all applicable rules and
regulations of the Securities and Exchange Commission, and will in addition
conduct its activities under this Agreement in accordance with applicable
law, including but not limited to applicable banking law;
(b) will not make loans for the purpose of purchasing or
carrying Company Shares, or make loans to the Company;
(c) will place orders pursuant to its investment
determinations for the Company either directly with the issuer or with any
broker or dealer selected by it. In placing orders with brokers and/or
dealers, USTNA shall use its best efforts to obtain the most favorable
execution of its orders, after taking into account all factors it deems
relevant, including the breadth of the market in the security, the price of
the security, the financial condition and execution capability of the
broker and/or dealer, and the reasonableness of the commission, if any,
both for the specific transaction and on a continuing basis. Consistent
with this obligation, USTNA may, to the extent permitted by law, purchase
and sell portfolio securities to and from brokers who provide brokerage and
research services (within the meaning of Section 28(e) of the Exchange Act)
to or for the benefit of the Company and/or other accounts over which USTNA
or any of its affiliates exercises investment discretion. USTNA is
authorized to pay to a broker who provides such brokerage and research
services a commission for effecting a securities transaction which is in
excess of the amount of commission another broker would have charged for
effecting that transaction if USTNA determines in good faith that such
commission was reasonable in relation to the value of the brokerage and
research services provided by such broker. This determination may be viewed
in terms of either that particular transaction or of the overall
responsibilities of USTNA with respect to the accounts as to which it
exercises investment discretion;
(d) will maintain books and records with respect to the
securities and other investment transactions entered into pursuant to this
Agreement and will render to the Managing Investment Adviser and the
Company's Board of Directors such periodic and special reports as they may
request;
(e) will treat confidentially and as proprietary
information of the Company all records and other information relative to
the Company and prior, present or potential shareholders, and will not use
such records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to
and approval in writing by the Company, which approval shall not be
unreasonably withheld and may not be withheld where USTNA may be exposed to
civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or
when so requested by the Company. Nothing contained herein, however, shall
prohibit USTNA from advertising or soliciting the public generally with
respect to other products or services, regardless of whether such
advertisement or solicitation may include prior, present or potential
shareholders of the Company.
5. Services Not Exclusive. The investment sub-advisory
services rendered by USTNA hereunder are not to be deemed exclusive, and
USTNA shall be free to render similar services to others so long as its
services under this Agreement are not impaired thereby.
6. Books and Records. USTNA shall provide the Company
with all records concerning USTNA's activities that the Company is required
by law to maintain. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 under the
Investment Company Act which are prepared or maintained by USTNA on behalf
of the Company are the property of the Company and will be surrendered
promptly to the Company on request. The Company also shall comply with all
reasonable requests for information by the Company's officers or Board of
Directors, including information required for the Company's filings with
the Securities and Exchange Commission and state securities commissions.
7. Expenses.
(a) USTNA shall furnish, at its own expense, all office
space, office facilities, equipment and personnel necessary or appropriate
to the performance of its duties under this Agreement. USTNA shall pay the
salaries and fees of all officers and employees of the Company performing
services related to USTNA's duties under this Agreement.
(b) It is understood that the Company will pay all of its
expenses and liabilities, including all of such fees and expenses as set
forth in the Investment Advisory Agreement.
8. Compensation. For the services provided and the
expenses assumed pursuant to this Agreement, the Managing Investment
Adviser will pay USTNA a fee or fees as may be agreed to in writing by the
Managing Investment Adviser and USTNA.
9. Limitation of Liability of USTNA.
(a) USTNA hereby is notified expressly of the limitation
of Directors' liability as set forth in the Organizational Documents and
agrees that any obligation of the Company arising in connection with this
Agreement shall be limited in all cases to the Company and its assets, and
USTNA shall not seek satisfaction of any such obligation from any Director
of the Company.
(b) USTNA shall give the Company the benefit of its best
judgment and efforts in rendering services under this Agreement. In the
absence of Disabling Conduct, USTNA shall not be liable to the Company or
to any member of the Company or any other person for any act or omission in
the course of, or connected with, rendering services under this Agreement
or for any losses that may be sustained in the purchase, holding or sale of
any security.
10. Indemnification. The Company will indemnify USTNA,
its affiliates and each of their officers, directors, employees, members
and agents (each an "Indemnified Person") against, and hold each of them
harmless from, any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) incurred by any of them in
connection with or resulting from the actions or inactions of any
Indemnified Person in connection with the performance of or under this
Agreement not resulting from Disabling Conduct by the respective
Indemnified Person. Indemnification shall be made only following: (i) a
final decision on the merits by a court or other body before whom the
proceeding was brought that the Indemnified Person was not liable by reason
of Disabling Conduct; or (ii) in the absence of such a decision, a
reasonable determination, based upon a review of the facts, that the
Indemnified Person was not liable by reason of Disabling Conduct by (a) the
vote of a majority of a quorum of Directors of the Company who are not
"interested persons" of USTNA ("Disinterested Directors") or (b)
independent legal counsel in a written opinion. The Indemnified Person
shall be entitled to advances from the Company for payment of the
reasonable expenses incurred by it in connection with the matter as to
which it is seeking indemnification in the manner and to the fullest extent
permissible under the Delaware Limited Liability Company Act. The
Indemnified Person shall provide to the Company a written affirmation of
its good faith belief that the standard of conduct necessary for
indemnification by the Company has been met and a written undertaking to
repay any such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one of the
following additional conditions shall be met: (a) the Indemnified Person
shall provide security in form and amount acceptable to the Company for its
undertaking; (b) the Company is insured against losses arising by reason of
the advance; or (c) a majority of a quorum of Disinterested Directors, or
independent legal counsel, in a written opinion, shall have determined,
based on a review of facts readily available to the Company at the time the
advance is proposed to be made, that there is reason to believe that the
Indemnified Person will ultimately be found to be entitled to
indemnification.
No provision of this Agreement shall be construed to
protect any Indemnified Person from liability in violation of Section 17(h)
or (i) of the Investment Company Act.
11. Effective Date; Termination; Amendments.
(a) This Agreement shall be effective as of the date
first above written and, unless terminated sooner as provided herein, shall
continue until the second anniversary of the execution of this Agreement.
Thereafter, unless terminated sooner as provided herein, this Agreement
shall continue in effect for successive annual periods, provided that such
continuance is specifically approved at least annually by the vote of a
majority of the Board of Directors of the Company 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 continuance, and either:
(i) the vote of a majority of the outstanding voting securities of the
Company; or (ii) the vote of a majority of the full Board of Directors.
(b) This Agreement may be terminated at any time, without
the payment of any penalty, either by: (i) the Company, by action of the
Board of Directors or by vote of a majority of the outstanding voting
securities of the Company, on 60 days' written notice to USTNA; or (ii)
USTNA, on 90 days' written notice to the Company. This Agreement shall
terminate immediately in the event of its assignment.
(c) An affiliate of USTNA may assume USTNA's obligations
under this Agreement provided that: (i) the affiliate is qualified to act
as an investment sub-adviser to the Company under applicable law; (ii) the
assumption will not result in a change of actual control or management of
USTNA; and (iii) the assumption of USTNA's obligations by the affiliate is
approved by the Board of Directors of the Company.
(d) This Agreement may be amended only if such amendment
is approved, to the extent required by the Investment Company Act, by the
vote of a majority of the outstanding voting securities of the Company and
by vote of a majority of the Board of 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 amendment.
(e) As used in this Agreement, the terms "specifically
approved at least annually," "majority of the outstanding voting
securities," "interested persons" and "assignment" shall have the same
meanings as such terms have in the Investment Company Act and the
regulations thereunder.
12. Notices. All notices and other communications
hereunder shall be in writing or by confirm in telegram, cable, telex, or
facsimile sending device. Notices shall be addressed: (a) if to USTNA, to:
U.S. Trust Company, N.A., 5 Palo Alto Square, 9th Floor, 0000 Xx Xxxxxx
Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000; (b) if to the Managing Investment
Adviser, to: U.S. Trust Company, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
00000; or (c) if to the Company, to: UST Private Equity Investors Fund,
Inc., 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxx.
13. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without giving effect to
the choice of law provisions thereof, to the extent that such laws are
consistent with the provisions of the Investment Company Act and the
regulations thereunder.
14. Miscellaneous. The captions in this Agreement are
included for the convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction
or effect. Should any part of this Agreement be held or made invalid by a
court decision, statute, regulation, or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be binding
and shall inure to the benefit of the parties hereto and their respective
successors, to the extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day
and year first above written.
UST PRIVATE EQUITY INVESTORS FUND, INC.
By: ____________________________________
Name: Xxxxx X. Xxxx
Title: President
U.S. TRUST COMPANY OF NEW YORK
By: ____________________________________
Name:
Title:
U.S. TRUST COMPANY
By: ____________________________________
Name:
Title:
U.S. TRUST COMPANY, N.A.
By: ___________________________________
Name:
Title:
