Exhibit 99.2(g)
INVESTMENT ADVISORY AGREEMENT
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AGREEMENT made as of this 30/th/ day of June, 2002 by and between Xxxxxx
Xxxxxxx Institutional Fund of Hedge Funds LP, a Delaware limited partnership
(the "Partnership"), and Xxxxxx Xxxxxxx AIP GP LP, a Delaware limited
partnership (the "Adviser").
1. Duties of Adviser. (a) The Partnership hereby appoints the Adviser to
act as investment adviser to the Partnership, for the period and on the terms
set forth in this Agreement and in the Partnership's Amended and Restated
Agreement of Limited Partnership dated as of July 1, 2002 (the "Partnership
LPA"), as the Partnership LPA may be amended from time to time with notice to
the Adviser. The Adviser specifically acknowledges its obligations under the
Partnership LPA, provided that the Adviser shall not be obligated to follow any
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amendment to the Partnership LPA that increases its obligations,
responsibilities or liabilities thereunder until it has received actual notice
of such amendment and has agreed thereto in writing. The Partnership employs the
Adviser to manage the investment and reinvestment of the assets of the
Partnership, to continuously review, supervise and administer the investment
program of the Partnership, to determine in its discretion the securities to be
purchased or sold and the portion of the Partnership's assets to be held
uninvested, to provide the Partnership with records concerning the Adviser's
activities which the Partnership is required to maintain and to render regular
reports to the Partnership's officers and Board of Directors concerning the
Adviser's discharge of the foregoing responsibilities. Without limiting the
generality of the foregoing, the Adviser is specifically authorized to (i)
invest discrete portions of the Partnership's assets (which may constitute, in
the aggregate, all of the Partnership's assets) in unregistered investment funds
or other investment vehicles and registered investment companies ("Investment
Funds") which are managed by investment managers ("Investment Managers"); (ii)
invest discrete portions of the Partnership's assets in separate investment
vehicles for which the Investment Managers serve as general partners or managing
members and in which the Partnership is the sole investor ("Sub-Funds"); and
(iii) invest discrete portions of the Partnership's assets with Investment
Managers who are retained to manage the Partnership's assets directly through
separate managed accounts (Investment Managers of Sub-Funds and of managed
accounts are collectively referred to as "Subadvisers"). The selection of
Subadvisers shall, however, be subject to the approval by the Board of Directors
of the Partnership in accordance with requirements of the Investment Company Act
of 1940 (the "1940 Act") and a vote of a majority of the outstanding voting
securities of the Partnership unless the Partnership acts in reliance on
exemptive or other relief granted by the Securities and Exchange Commission from
the provisions of the 1940 Act requiring such approval by security holders. The
Adviser shall discharge the foregoing responsibilities subject to the control of
the officers and the Board of Directors of the Partnership, and in compliance
with the objectives, policies and limitations set forth in the Partnership's
private placement memorandum, as the same may be amended or supplemented from
time to time with notice to the Adviser, and applicable laws and regulations.
(b) The Adviser accepts such employment and agrees to render the services
and to provide, at its own expense, the office space, furnishings and equipment
and the personnel required by it to perform the services on the terms and for
the compensation provided herein.
2. Portfolio Transactions. (a) The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of securities for
the Partnership and is directed to use its best efforts to obtain the best
available price and most favorable execution, except as prescribed herein.
(b) The Adviser may select affiliates of the Adviser and the general
partner of the Partnership (the "General Partner") as brokers or dealers in
connection with purchase and sale transactions for the Partnership. The
Partnership understands that such affiliates may provide execution services
relative to the purchase and/or sale of securities for the Partnership, provided
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that any such affiliate of the Adviser or General Partner discloses, at least
annually, and as may be required under the Partnership's Rule 17e-1 Procedures
dated February 14, 2002, as amended from time to time with notice to the Adviser
(the "Procedures"), the amount of the commission it has received. By executing
this Agreement, the Partnership authorizes an affiliate of the Adviser or
General Partner to effect securities transactions on behalf of the Partnership
and to retain compensation therewith, provided that any such compensation is
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permissible under the Procedures. This authorization is being executed and
delivered pursuant to Section 11(a) of the Securities Exchange Act of 1934 and
Rule 11a2-2(T) thereunder.
(c) Unless and until otherwise directed by the Board of Directors of the
Partnership, the Adviser may also be authorized to effect individual securities
transactions at commission rates in excess of the minimum commission rates
available, if the Adviser determines in good faith that such amount of
commission is reasonable in relation to the value of the brokerage or research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Adviser's overall responsibilities with respect to
the Partnership. The execution of such transactions shall not be deemed to
represent an unlawful act or breach of any duty created by this Agreement or
otherwise.
(d) The Adviser will promptly communicate to the officers and the Board of
Directors of the Partnership such information relating to portfolio transactions
as they may reasonably request.
3. Compensation of the Adviser. (a) For the services to be rendered by the
Adviser as provided in Section 1 of this Agreement, the Partnership shall pay to
the Adviser at the end of each month a fee (the "Management Fee") at the rate of
0.063% (0.75% on an annualized basis) of the Partnership's net assets. The
Management Fee will be computed based on the capital account of each limited
partner of the Partnership as of the end of business on the last business day of
each month in the manner set out in the Partnership LPA.
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(b) In the event of termination of this Agreement, the Management Fee
provided in this Section 3 shall be computed on the basis of the period ending
on the last business day on which this Agreement is in effect subject to a pro
rata adjustment based on the number of days elapsed in the current fiscal
quarter as a percentage of the total number of days in such quarter.
(c) The Adviser will pay all ordinary operating expenses of the Partnership
and the General Partner (if incurred by the General Partner in connection with
the Partnership), other than the Management Fee, investment related expenses of
the Partnership, and other expenses assumed by the Partnership in accordance
with the terms of the Partnership LPA.
4. Other Services. The Adviser will provide to the Partnership, or will
arrange at its expense to be provided to the Partnership, such management and
administrative services as may be agreed upon from time to time by the Adviser
and the Partnership. These services initially will include, among other things,
providing to the Partnership office facilities, equipment, personnel and other
services.
5. Reports. The Partnership and the Adviser agree to furnish to each other
current prospectuses, proxy statements, reports to partners, certified copies of
their financial statements, and such other information with regard to their
affairs as each may reasonably request.
6. Status of Adviser. The services of the Adviser to the Partnership are
not to be deemed exclusive, and the Adviser shall be free to render similar
services to others.
7. Liability of Adviser. In the absence of (a) willful misfeasance, bad
faith or gross negligence on the part of the Adviser in performance of its
obligations and duties hereunder, (b) reckless disregard by the Adviser of its
obligations and duties hereunder, or (c) a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the 1940 Act), the Adviser shall not be subject
to any liability whatsoever to the Partnership, or to any partner of the
Partnership (each, a "Partner," and collectively, the "Partners") for any error
of judgment, mistake of law or any other act or omission in the course of, or
connected with, rendering services hereunder including, without limitation, for
any losses that may be sustained in connection with the purchase, holding,
redemption or sale of any security on behalf of the Partnership.
8. Indemnification. (a) To the fullest extent permitted by law, the
Partnership shall, subject to Section 8(c) of this Agreement, indemnify the
Adviser (including for this purpose each officer, director, partner, principal,
employee or agent of, or any person who controls, is controlled by or is under
common control with, the Adviser, and their respective executors, heirs,
assigns, successors or other legal representatives) (each such person being
referred to as an "indemnitee") against all losses, claims, damages,
liabilities, costs and expenses arising by reason of being or having been
Adviser to the Partnership, or the past or present performance of services to
the Partnership in accordance with this Agreement by the indemnitee, except to
the extent that the loss, claim, damage, liability, cost or expense has been
finally determined in a judicial decision on the merits from which no further
appeal may be taken in any action, suit, investigation or other proceeding to
have been incurred or suffered by the indemnitee by reason
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of willful misfeasance, bad faith, gross negligence, or reckless disregard of
the duties involved in the conduct of the indemnitee's office. These losses,
claims, damages, liabilities, costs and expenses include, but are not limited
to, amounts paid in satisfaction of judgments, in compromise, or as fines or
penalties, and counsel fees and expenses, incurred in connection with the
defense or disposition of any action, suit, investigation or other proceeding,
whether civil or criminal, before any judicial, arbitral, administrative or
legislative body, in which the indemnitee may be or may have been involved as a
party or otherwise, or with which such indemnitee may be or may have been
threatened, while in office or thereafter. The rights of indemnification
provided under this Section 8 are not to be construed so as to provide for
indemnification of an indemnitee for any liability (including liability under
U.S. federal securities laws which, under certain circumstances, impose
liability even on persons that act in good faith) to the extent (but only to the
extent) that indemnification would be in violation of applicable law, but shall
be construed so as to effectuate the applicable provisions of this Section 8.
(b) Expenses, including counsel fees and expenses, incurred by any
indemnitee (but excluding amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties) may be paid from time to time by the
Partnership in advance of the final disposition of any action, suit,
investigation or other proceeding upon receipt of an undertaking by or on behalf
of the indemnitee to repay to the Partnership amounts paid if a determination is
made that indemnification of the expenses is not authorized under Section 8(a)
of this Agreement, so long as (i) the indemnitee provides security for the
undertaking, (ii) the Partnership is insured by or on behalf of the indemnitee
against losses arising by reason of the indemnitee's failure to fulfill his, her
or its undertaking, or (iii) a majority of the directors (each, a "Director,"
and collectively, the "Directors") of the Partnership who are not "interested
persons" (as that term is defined in the 0000 Xxx) of the Partnership
("Independent Directors") (excluding any Director who is or has been a party to
any other action, suit, investigation or other proceeding involving claims
similar to those involved in the action, suit, investigation or proceeding
giving rise to a claim for advancement of expenses under this Agreement) or
independent legal counsel in a written opinion determines based on a review of
readily available facts (as opposed to a full trial-type inquiry) that reason
exists to believe that the indemnitee ultimately shall be entitled to
indemnification.
(c) As to the disposition of any action, suit, investigation or other
proceeding (whether by a compromise payment, pursuant to a consent decree or
otherwise) without an adjudication or a decision on the merits by a court, or by
any other body before which the proceeding has been brought, that an indemnitee
is liable to the Partnership or its Partners by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee's office, indemnification shall be provided in
accordance with Section 8(a) of this Agreement if (i) approved as in the best
interests of the Partnership by a majority of the Independent Directors
(excluding any Director who is or has been a party to any other action, suit,
investigation or other proceeding involving claims similar to those involved in
the action, suit, investigation or proceeding giving rise to a claim for
indemnification under this Agreement) upon a determination based upon a review
of readily available facts (as opposed to a full trial-type inquiry) that the
indemnitee acted in good faith and in the reasonable belief that the actions
were in the best interests of the Partnership and that the indemnitee is not
liable to the Partnership or its Partners by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the
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indemnitee's office, or (ii) the Directors secure a written opinion of
independent legal counsel based upon a review of readily available facts (as
opposed to a full trial-type inquiry) to the effect that indemnification would
not protect the indemnitee against any liability to the Partnership or its
Partners to which the indemnitee would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence, or reckless disregard of the duties
involved in the conduct of the indemnitee's office.
(d) Any indemnification or advancement of expenses made in accordance with
this Section 8 shall not prevent the recovery from any indemnitee of any amount
if the indemnitee subsequently is determined in a final judicial decision on the
merits in any action, suit, investigation or proceeding involving the liability
or expense that gave rise to the indemnification or advancement of expenses to
be liable to the Partnership or its Partners by reason of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee's office. In any suit brought by an indemnitee to
enforce a right to indemnification under this Section 8 it shall be a defense
that, and in any suit in the name of the Partnership to recover any
indemnification or advancement of expenses made in accordance with this Section
8 the Partnership shall be entitled to recover the expenses upon a final
adjudication from which no further right of appeal may be taken that, the
indemnitee has not met the applicable standard of conduct described in this
Section 8. In any suit brought to enforce a right to indemnification or to
recover any indemnification or advancement of expenses made in accordance with
this Section 8, the burden of proving that the indemnitee is not entitled to be
indemnified, or to any indemnification or advancement of expenses, under this
Section 8 shall be on the Partnership (or on any Partner acting derivatively or
otherwise on behalf of the Partnership or its Partners).
(e) An indemnitee may not satisfy any right of indemnification or
advancement of expenses granted in this Section 8 or to which he, she or it may
otherwise be entitled except out of the assets of the Partnership, and no
Partner shall be personally liable with respect to any such claim for
indemnification or advancement of expenses.
(f) The rights of indemnification provided in this Section 8 shall not be
exclusive of or affect any other rights to which any person may be entitled by
contract or otherwise under law. Nothing contained in this Section 8 shall
affect the power of the Partnership to purchase and maintain liability insurance
on behalf of the Adviser or any indemnitee.
9. Permissible Interests. Subject to and in accordance with the
Partnership LPA and the Adviser's limited partnership agreement (the "Adviser
LPA"), Directors, officers, agents and Partners of the Partnership are or may be
interested in the Adviser (or any successor thereof) as directors, officers,
agents, partners or otherwise; directors, officers, agents and partners of the
Adviser are or may be interested in the Partnership as Directors, officers,
Partners or otherwise; and the Adviser (or any successor) is or may be
interested in the Partnership as a Partner or otherwise; and the effect of any
such interrelationships shall be governed by the Partnership LPA, the Adviser
LPA and the provisions of the 1940 Act.
10. Duration and Termination. This Agreement will become effective as of
the date first written above and will continue for an initial two-year term and
will continue thereafter so long as such continuance is specifically approved at
least annually (a) by the vote of a
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majority of the 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, and (b) by the Board of Directors of the Partnership or
by vote of a majority of the outstanding voting securities of the Partnership;
provided however, that if the Partners of the Partnership fail to approve the
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Agreement as provided herein, the Adviser may continue to serve in such capacity
in the manner and to the extent permitted by the 1940 Act and the rules
thereunder. This Agreement may be terminated by the Partnership at any time,
without the payment of any penalty, by vote of a majority of the entire Board of
Directors of the Partnership or by vote of a majority of the outstanding voting
securities of the Partnership on 60 days' written notice to the Adviser. This
Agreement may be terminated by the Adviser at any time, without the payment of
any penalty, upon 90 days' written notice to the Partnership. This Agreement
will automatically and immediately terminate in the event of its assignment,
provided that an assignment to a successor to all or substantially all of the
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Adviser's business or to a wholly-owned subsidiary of such successor which does
not result in a change of actual control of the Adviser's business shall not be
deemed to be an assignment for the purposes of this Agreement.
11. Definitions. As used in this Agreement, the terms "assignment,"
"interested persons," and a "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in Section 2(a)(4),
Section 2(a)(19) and Section 2(a)(42) of the 1940 Act.
12. Amendment of Agreement. This Agreement may be amended by mutual
consent, but the consent of the Partnership must be approved (a) by vote of a
majority of those members of the Board of Directors of the Partnership 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, and (b)
by vote of a majority of the outstanding voting securities of the Partnership.
13. Use of Name. The Partnership agrees that if this Agreement is
terminated and the Adviser shall no longer be the adviser to the Partnership,
the Partnership will, within a reasonable period of time, change its name and
amend or supplement the Partnership LPA and its offering and other documents to
delete references to "Xxxxxx Xxxxxxx" or any derivation or abbreviation thereof.
14. Severability. If any provisions of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
15. Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of New York, provided, however, that nothing herein shall
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be construed in a manner inconsistent with the 1940 Act.
16. Notices. Any notice under this Agreement shall be given in writing and
deemed to have been duly given when delivered by hand or facsimile or five days
after mailed by certified mail, post-paid, by return receipt requested to the
other party at the principal office of such party.
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17. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
18. Form ADV; Partnership Changes. The Partnership acknowledges receiving
Part II of the Adviser's Form ADV. The Adviser covenants that it will notify the
Partnership of any changes in the membership of its partnership within a
reasonable time after such change.
19. Partnership Obligations. The parties to this Agreement agree that the
obligations of the Partnership under this Agreement shall not be binding upon
any of the Directors, limited partners or any officers, employees or agents,
whether past, present or future, of the Partnership, individually, but are
binding only upon the assets and property of the Partnership.
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PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN
CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS BROCHURE OR ACCOUNT
DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE COMMISSION. THE
COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE MERITS OF
PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF COMMODITY
TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES TRADING
COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS BROCHURE OR
ACCOUNT DOCUMENT.
YOU SHOULD ALSO BE AWARE THAT THE ADVISER (A COMMODITY TRADING ADVISOR) MAY
ENGAGE IN TRADING FOREIGN FUTURES OR OPTIONS CONTRACTS TRANSACTIONS ON MARKETS
LOCATED OUTSIDE THE UNITED STATES, INCLUDING MARKETS FORMALLY LINKED TO A U.S.
MARKET, AND WITH RESPECT TO SUCH TRADES, THE ADVISER MAY BE SUBJECT TO
REGULATIONS WHICH OFFER DIFFERENT OR DIMINISHED PROTECTION TO THE PARTNERSHIP
AND ITS INVESTORS. FURTHER, UNITED STATES REGULATORY AUTHORITIES MAY BE UNABLE
TO COMPEL THE ENFORCEMENT OF THE RULES OF REGULATORY AUTHORITIES OR MARKETS IN
NON-UNITED STATES JURISDICTIONS WHERE TRANSACTIONS FOR THE POOL MAY BE EFFECTED.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first written above.
XXXXXX XXXXXXX AIP GP XX XXXXXX XXXXXXX INSTITUTIONAL FUND
OF HEDGE FUNDS LP
By: /s/ Xxxxxx X. Xxxxxxx
By: XXXXXX XXXXXXX ALTERNATIVE ----------------------------
INVESTMENTS INC., as its Name: Xxxxxx X. Xxxxxxx
General Partner Title: President
Name: /s/ X. Xxxxxx Coes III
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Title: President
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