Exhibit (g)
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT is made the 1st day of August, 2000, by
and between Xxxxxxxxx Fund, L.L.C., a Delaware limited liability company (the
"Fund"), and CIBC Xxxxxxxxxxx Advisers, L.L.C., a Delaware limited liability
company (the "Adviser").
WHEREAS, the Fund intends to engage in business as a closed-end,
non-diversified management investment company and is registered as such under
the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended, and engages in the business of
acting as an investment adviser; and
WHEREAS, the Fund desires to retain the Adviser to render investment
advisory services to the Fund in the manner and on the terms and conditions
hereinafter set forth; and
WHEREAS, the Adviser desires to be retained to perform such services on
said terms and conditions:
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
contained, the Fund and the Adviser agree as follows:
1. The Fund hereby retains the Adviser to act as its investment adviser
and, subject to the supervision and control of the Board of Managers of the Fund
(the "Board"), to manage the investment activities of the Fund as hereinafter
set forth. Without limiting the generality of the foregoing, the Adviser shall:
obtain and evaluate such information and advice relating to the economy,
securities markets, and securities as it deems necessary or useful to discharge
its duties hereunder; continuously manage the assets of the Fund in a manner
consistent with the investment objective, policies and restrictions of the Fund,
as set forth in the Confidential Memorandum of the Fund and as may be adopted
from time to time by the Board, and applicable laws and regulations; determine
the securities to be purchased, sold or otherwise disposed of by the Fund and
the timing of such purchases, sales and dispositions; and take such further
action, including the placing of purchase and sale orders and the voting of
securities on behalf of the Fund, as the Adviser shall deem necessary or
appropriate. The Adviser shall furnish to or place at the disposal of the Fund
such of the information, evaluations, analyses and opinions formulated or
obtained by the Adviser in the discharge of its duties as the Fund may, from
time to time, reasonably request.
2. Without limiting the generality of paragraph 1 hereof, the Adviser shall
be authorized to open, maintain and close accounts in the name and on behalf of
the Fund with brokers and dealers as it determines are appropriate; to select
and place orders with brokers,
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dealers or other financial intermediaries for the execution, clearance or
settlement of any transactions on behalf of the Fund on such terms as the
Adviser considers appropriate and that are consistent with the policies of the
Fund; and, subject to any policies adopted by the Board and to the provisions of
applicable law, to agree to such commissions, fees and other charges on behalf
of the Fund as it shall deem reasonable in the circumstances taking into account
all such factors as it deems relevant (including the quality of research and
other services made available to it even if such services are not for the
exclusive benefit of the Fund and the cost of such services does not represent
the lowest cost available) and shall be under no obligation to combine or
arrange orders so as to obtain reduced charges unless otherwise required under
the federal securities laws. The Adviser may, subject to such procedures as may
be adopted by the Board, use affiliates of the Adviser as brokers to effect the
Fund's securities transactions and the Fund may pay such commissions to such
brokers in such amounts as are permissible under applicable law.
3. The Adviser shall, at its own expense, maintain such staff and employ or
retain such personnel and consult with such other persons as may be necessary to
render the services required to be provided by the Adviser or furnished to the
Fund under this Agreement. Without limiting the generality of the foregoing, the
staff and personnel of the Adviser shall be deemed to include persons employed
or otherwise retained by the Adviser or made available to the Adviser by its
members.
4. The Fund will, from time to time, furnish or otherwise make available to
the Adviser such financial reports, proxy statements, policies and procedures
and other information relating to the business and affairs of the Fund as the
Adviser may reasonably require in order to discharge its duties and obligations
hereunder.
5. The Adviser shall bear the cost of rendering the services to be
performed by it under this Agreement.
6. The Fund assumes and shall pay or cause to be paid all expenses of the
Fund not expressly assumed by the Adviser under this Agreement, including
without limitation: all costs and expenses related to portfolio transactions and
positions for the Fund's account, including, but not limited to, brokerage
commissions, research fees, interest and commitment fees on loans and debit
balances, borrowing charges on securities sold short, dividends on securities
sold short but not yet purchased, custodial fees, margin fees, transfer taxes
and premiums, taxes withheld on foreign dividends and indirect expenses from
investments in investment funds; all costs and expenses associated with the
organization and registration of the Fund, certain offering costs and the costs
of compliance with any applicable Federal or state laws; attorneys' fees and
disbursements associated with updating the Fund's Confidential Memorandum and
subscription documents (the "Offering Materials"); the costs of printing the
Offering Materials; the costs of distributing the Offering Materials to
prospective investors; and attorneys' fees and disbursements associated with the
review of subscription documents executed and delivered to the Fund in
connection with offerings of interests of the Fund; the costs and expenses of
holding meetings of the Board and any meetings of members of the Fund; fees and
disbursements of any attorneys, accountants, auditors and other consultants and
professionals engaged on behalf of the Fund or the Board; the administrative
services fee paid to CIBC World Markets Corp. pursuant to the
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Administrative Services Agreement and the fees of custodians and persons
providing administrative services to the Fund; the costs of a fidelity bond and
any liability insurance obtained on behalf of the Fund or the Board; all
expenses of computing the Fund's net asset value, including any equipment or
services obtained for these purposes; and all charges for equipment or services
used in communicating information regarding the Fund's transactions among the
Adviser and any custodian or other agent engaged by the Fund.
7. As full compensation for the services provided to the Fund and the
expenses assumed by the Adviser under this Agreement, the Adviser shall be
entitled to be the Special Advisory Member of the Fund pursuant to the terms of
the Limited Liability Company Agreement of the Fund (the "L.L.C. Agreement"). As
the Special Advisory Member, the Adviser shall be entitled to receive an
incentive allocation in accordance with the terms and conditions of Section 5.8
of the L.L.C. Agreement.
8. The Adviser will use its best efforts in the supervision and management
of the investment activities of the Fund and in providing services hereunder,
but in the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of its obligations hereunder, the Adviser, its members, their
respective directors, officers or employees and their respective affiliates,
executors, heirs, assigns, successors or other legal representatives
(collectively, the "Affiliates") shall not be liable to the Fund for any error
of judgment for any mistake of law or for any act or omission by the Adviser or
any of the Affiliates.
9. (a) The Fund shall indemnify the Adviser, its members, their respective
directors, officers or employees and their respective affiliates, executors,
heirs, assigns, successors or other legal representatives (each an "Indemnified
Person") against any and all costs, losses, claims, damages or liabilities,
joint or several, including, without limitation, reasonable attorneys' fees and
disbursements, resulting in any way from the performance or non-performance of
any Indemnified Person's duties with respect to the Fund, except those resulting
from the willful malfeasance, bad faith or gross negligence of an Indemnified
Person or the Indemnified Person's reckless disregard of such duties, and in the
case of criminal proceedings, unless such Indemnified Person had reasonable
cause to believe its actions unlawful (collectively, "disabling conduct").
Indemnification shall be made following: (i) a final decision on the merits by a
court or other body before which the proceeding was brought that the Indemnified
Person was not liable by reason of disabling conduct or (ii) a reasonable
determination, based upon a review of the facts and reached by (A) the vote of a
majority of the members of the Board (the "Managers") who are not parties to the
proceeding or (B) legal counsel selected by a vote of a majority of the Board in
a written advice, that the Indemnified Person is entitled to indemnification
hereunder. The Fund shall advance to an Indemnified Person (to the extent that
it has available assets and need not borrow to do so) reasonable attorneys' fees
and other costs and expenses incurred in connection with defense of any action
or proceeding arising out of such performance or non-performance. The Adviser
agrees, and each other Indemnified Person will agree as a condition to any such
advance, that in the event the Indemnified Person receives any such advance, the
Indemnified Person shall reimburse the Fund for such fees, costs and expenses to
the extent that it shall be determined that the Indemnified Person was not
entitled to indemnification under this paragraph 9.
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(b) Notwithstanding any of the foregoing to the contrary, the provisions of
this paragraph 9 shall not be construed so as to relieve the Indemnified Person
of, or provide indemnification with respect to, any liability (including
liability under Federal Securities laws, which, under certain circumstances,
impose liability even on persons who act in good faith) to the extent (but only
to the extent) that such liability may not be waived, limited or modified under
applicable law or that such indemnification would be in violation of applicable
law, but shall be construed so as to effectuate the provisions of this paragraph
9 to the fullest extent permitted by law.
10. Nothing contained in this Agreement shall prevent the Adviser or any
affiliated person of the Adviser from acting as investment adviser or manager
for any other person, firm or corporation and, except as required by applicable
law (including Rule 17j-1 under the 1940 Act), shall not in any way bind or
restrict the Adviser or any such affiliated person from buying, selling or
trading any securities or commodities for their own accounts or for the account
of others for whom they may be acting. Nothing in this Agreement shall limit or
restrict the right of any member, officer or employee of the Adviser to engage
in any other business or to devote his or her time and attention in part to the
management or other aspects of any other business whether of a similar or
dissimilar nature.
11. This Agreement shall remain in effect for an initial term expiring
August 1, 2002, and shall continue in effect from year to year thereafter
provided such continuance is approved at least annually by the vote of a
majority of the outstanding voting securities of the Fund, as defined by the
1940 Act and the rules thereunder, or by the Board; and provided that in either
event such continuance is also approved by a majority of the Managers who are
not parties to this Agreement or "interested persons" (as defined by the 0000
Xxx) of any such party (the "Independent Managers"), by vote cast in person at a
meeting called for the purpose of voting on such approval. The Fund may at any
time, without payment of any penalty, terminate this Agreement upon sixty days'
prior written notice to the Adviser, either by majority vote of the Board or by
the vote of a majority of the outstanding voting securities of the Fund (as
defined by the 1940 Act and the rules thereunder). The Adviser may at any time,
without payment of penalty, terminate this Agreement upon sixty days' prior
written notice to the Fund. This Agreement shall automatically terminate in the
event of its assignment (to the extent required by the 1940 Act and the rules
thereunder) unless such automatic termination shall be prevented by an exemptive
order of the Securities and Exchange Commission.
12. Any notice under this Agreement shall be given in writing and shall be
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.
13. This Agreement may be amended only by the written agreement of the
parties. Any amendment shall be required to be approved by the Board and by a
majority of the Independent Managers in accordance with the provisions of
Section 15(c) of the 1940 Act and the rules thereunder. If required by the 1940
Act, any amendment shall also be required to be approved by such vote of members
of the Fund as is required by the 1940 Act and the rules thereunder.
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14. This Agreement shall be construed in accordance with the laws of the
state of New York and the applicable provisions of the 1940 Act. To the extent
the applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control.
15. The Fund represents that this Agreement has been duly approved by the
Board, including a majority of the Independent Managers, and by the sole initial
member of the Fund, in accordance with the requirements of the 1940 Act and the
rules thereunder.
16. The parties to this Agreement agree that the obligations of the Fund
under this Agreement shall not be binding upon any of the Managers, members of
the Fund or any officers, employees or agents, whether past, present or future,
of the Fund, individually, but are binding only upon the assets and property of
the Fund.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written.
XXXXXXXXX FUND, L.L.C.
By: /s/
Attest: ---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal Manager
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CIBC XXXXXXXXXXX ADVISERS, L.L.C.
By: CIBC World Markets Corp.,
its Managing Member
By: /s/
Attest: ---------------------------------
Name:
Title:
----------------
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