FORM OF INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT is made as of the 1st day of
October, 2008, by and between Robeco-Sage Triton Master Fund, L.L.C., a Delaware
limited liability company (the "Fund"), and Robeco Investment Management, Inc.,
a Delaware corporation (the "Investment Adviser").
WHEREAS, the Fund is registered with the Securities and Exchange
Commission (the "Commission") under the Investment Company Act of 1940, as
amended (the "1940 Act"), as a closed-end, non-diversified management investment
company, and the Investment Adviser is an investment adviser registered as such
under with the Commission under the Investment Advisers Act of 1940, as amended;
and
WHEREAS, the Fund desires to retain the Investment Adviser to act as
its investment adviser pursuant to this Agreement; and
WHEREAS, the Investment Adviser desires to be retained to act as
investment adviser to the Fund pursuant to this Agreement;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, it is agreed, by and between the parties, as follows:
1. The Fund hereby retains the Investment Adviser to:
(a) act as its investment adviser and, subject to the supervision
and control of the Board of Managers of the Fund (the "Board"), manage the
investment activities of the Fund as hereinafter set forth. Without limiting the
generality of the foregoing, the Investment 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
registration statement of the Fund filed with the Securities and Exchange
Commission on Form N-2 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; invest discrete portions of the Fund's assets (which may
constitute, in the aggregate, all of the Fund's assets) in unregistered
investment funds or other investment vehicles and registered investment
companies ("Portfolio Funds"), which are managed by investment managers
("Portfolio Managers"), including Portfolio Managers for which separate
investment vehicles have been created in which the Portfolio Managers serve as
general partners or managing members and the Fund is the sole investor
("Portfolio Accounts") and Portfolio Managers who are retained to manage the
Fund's assets directly through separate managed accounts (Portfolio Managers of
Portfolio Accounts and of managed accounts are collectively referred to as
"Sub-Managers"), 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
Investment Adviser shall deem necessary or appropriate. The Investment 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 Investment Adviser in the discharge of its duties as the Fund
may, from time to time, reasonably request; and
(b) provide, and the Investment Adviser hereby agrees to provide,
certain management, administrative and other services to the Fund.
Notwithstanding the appointment of the Investment Adviser to provide such
services hereunder, the Board shall remain responsible for supervising and
controlling the management, business and affairs of the Fund. The management,
administrative and other services to be provided by the Investment Adviser shall
include:
(i) providing office space, telephone and utilities;
(ii) providing administrative and secretarial, clerical and
other personnel as necessary to provide the services
required to be provided under this Agreement;
(iii) supervising the entities which are retained by the
Fund to provide administration, custody and other
services to the Fund;
(iv) handling investor inquiries regarding the Fund and
providing investors with information concerning their
investments in the Fund and capital account balances;
(v) monitoring relations and communications between
investors and the Fund;
(vi) assisting in the drafting and updating of disclosure
documents relating to the Fund and assisting in the
preparation of offering materials;
(vii) maintaining and updating investor information, such as
change of address and employment;
(viii) assisting in the preparation and mailing of investor
subscription documents and confirming the receipt of
such documents and funds;
(ix) assisting in the preparation of regulatory filings with
the Commission and state securities regulators and
other Federal and state regulatory authorities;
(x) preparing reports to and other informational materials
for members and assisting in the preparation of proxy
statements and other member communications;
(xi) monitoring compliance with regulatory requirements and
with the Fund's investment objective, policies and
restrictions as established by the Board;
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(xii) reviewing accounting records and financial reports of
the Fund, assisting with the preparation of the
financial reports of the Fund and acting as liaison
with the Fund's accounting agent and independent
auditors;
(xiii) assisting in the preparation and filing of tax
returns;
(xiv) coordinating and organizing meetings of the Board and
meetings of the members of the Fund, in each case when
called by such persons;
(xv) preparing materials and reports for use in connection
with meetings of the Board;
(xvi) maintaining and preserving those books and records of
the Fund not maintained by any Sub-Adviser (as defined
in Paragraph 2 below) of the Fund or the Fund's
administrator, accounting agent or custodian (which
books and records shall be the property of the Fund and
maintained and preserved as required by the 1940 Act
and the rules thereunder and shall be surrendered to
the Fund promptly upon request);
(xvii) reviewing and arranging for payment of the expenses
of the Fund;
(xviii) assisting the Fund in conducting offers to members
of the Fund to repurchase member interests;
(xix) reviewing and approving all regulatory filings of the
Fund required under applicable law;
(xx) reviewing investor qualifications and subscription
documentation and otherwise assisting in administrative
matters relating to the processing of subscriptions for
interests in the Fund;
(xxi) providing the services of persons employed by the
Investment Adviser or its affiliates who may be
appointed as officers of the Fund by the Board; and
(xxii) assisting the Fund in routine regulatory
examinations, and working closely with any counsel
retained to represent any members of the Board who are
not "interested persons," as defined by the 1940 Act
and the rules thereunder (the "Independent Managers")
of the Fund in response to any litigation,
investigations or regulatory matters.
2. Provided that the Fund shall not be required to pay any
compensation to the Investment Adviser for the services to be provided hereunder
other than as provided by the terms of this Agreement, the Investment Adviser is
authorized: (i) to obtain investment information, research or assistance from
any other person, firm or corporation to supplement,
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update or otherwise improve its investment management services; and (ii) to
enter into investment sub-advisory agreements with any registered investment
adviser (a "Sub-Adviser"), subject to such approvals of the Board and members of
the Fund ("Members") as may be required to comply with applicable provisions of
the 1940 Act, delegating any or all of the investment advisory services required
to be provided by the Investment Adviser under Paragraph 1(a) hereof, subject to
the supervision of the Investment Adviser.
3. Without limiting the generality of paragraph 1 hereof, the
Investment Adviser and, if applicable, the Sub-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, dealers or other financial intermediaries for the execution,
clearance or settlement of any transactions on behalf of the Fund on such terms
as the Investment Adviser (or the Sub-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; to pursue and
implement the investment policies and strategies of the Fund using a
multi-manager strategy whereby some or all of the Fund's assets may be committed
from time to time by the Investment Adviser (or the Sub-Adviser) to the
discretionary management of one or more Sub-Managers, the selection of which
shall be subject to the approval of the Board of Managers in accordance with
requirements of the 1940 Act and the approval of a majority (as defined in the
0000 Xxx) of the Fund's outstanding voting securities, unless the Fund receives
an exemption from the provisions of the 1940 Act requiring such approval by
security holders; and to identify appropriate Sub-Managers, assess the most
appropriate investment vehicles (general or limited partnerships, separate
managed accounts or other investment vehicles (pooled or otherwise), and
determine the assets to be committed to each Sub-Manager. The Investment Adviser
(or the Sub-Adviser) may, subject to such procedures as may be adopted by the
Board, use affiliates of the Investment 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.
4. MANAGEMENT FEE; EXPENSES
(a) In consideration for the provision by the Investment Adviser
of its services hereunder and the Investment Adviser's bearing of certain
expenses, the Fund shall pay the Investment Adviser a fee payable quarterly,
equal to 0.1875% (0.75% on an annualized basis) of the Fund's "net assets" (the
"Management Fee"). "Net assets" shall equal the total value of all assets of the
Fund, less an amount equal to all accrued debts, liabilities and obligations of
the Fund calculated before giving effect to any repurchases of interests.
(b) The Management Fee will be computed based on the average net
assets of the Fund during each calendar quarter, after adjustment for any
subscriptions effective on such date, and will be due and payable in arrears
within five business days after the end of such calendar quarter.
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(c) If this Agreement is terminated at any time during a quarter,
the Fund shall pay the Investment Adviser the pro rata amount of the Management
Fee for the quarter allocable to that portion of such quarter which is prior to
the termination of the Agreement (based on the number of days in such quarter).
(d) The Investment Adviser is responsible for all costs and
expenses associated with the provision of its services hereunder including, but
not limited to: expenses relating to the selection and monitoring of Portfolio
Managers; fees of any consultants or a Sub-Adviser retained by the Investment
Adviser; and expenses relating to qualifying potential investors and reviewing
subscription documents. The Investment 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 Investment Adviser or furnished to the Fund under this Agreement. Without
limiting the generality of the foregoing, the staff and personnel of the
Investment Adviser shall be deemed to include persons employed or otherwise
retained by the Investment Adviser or made available to the Investment Adviser.
5. The Fund will, from time to time, furnish or otherwise make
available to the Investment Adviser such financial reports, proxy statements,
policies and procedures and other information relating to the business and
affairs of the Fund as the Investment Adviser may reasonably require in order to
discharge its duties and obligations hereunder.
6. Except as provided herein or in another agreement between the Fund
and the Investment Adviser, the Fund shall bear all of its own expenses,
including: all investment related expenses (including, but not limited to, fees
paid directly or indirectly to Portfolio Managers, all costs and expenses
directly related to portfolio transactions and positions for the Fund's account
such as direct and indirect expenses associated with the Fund's investments,
including its investments in Portfolio Funds, transfer taxes and premiums, taxes
withheld on foreign dividends and, if applicable in the event the Fund utilizes
a Portfolio Account, brokerage commissions, interest and commitment fees on
loans and debit balances, borrowing charges on securities sold short, dividends
on securities sold but not yet purchased and margin fees); all costs and
expenses associated with the establishment of any Portfolio Accounts; any
non-investment related interest expense; fees and disbursements of any attorneys
and accountants engaged by the Fund; audit and tax preparation fees and expenses
of the Fund; administrative expenses and fees; custody and escrow fees and
expenses; the costs of an errors and omissions/directors and officers liability
insurance policy and a fidelity bond; the fee payable to the Investment Adviser;
fees and travel-related expenses of members of the Board (the "Managers") who
are not employees of the Investment Adviser or any affiliated person of the
Investment Adviser; all costs and charges for equipment or services used in
communicating information regarding the Fund's transactions among the Investment
Adviser and any custodian or other agent engaged by the Fund; any extraordinary
expenses; and such other expenses as may be approved from time to time by the
Board.
7. The compensation provided to the Investment Adviser pursuant to
paragraph 4(a) hereof shall be the entire compensation for the services provided
to the Fund hereunder and the expenses assumed by the Investment Adviser under
this Agreement.
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8. The Investment 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 Investment
Adviser, its directors, officers or employees and its affiliates, 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, for any act or
omission by the Investment Adviser or any of the Affiliates or by any
Sub-Adviser or Sub-Manager or for any loss suffered by the Fund.
9. (a) The Fund shall indemnify the Investment Adviser and its
directors, members, 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 were 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 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 Investment 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.
(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 Investment
Adviser or any affiliated person of the Investment 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 Investment Adviser or any such
affiliated person from buying, selling or trading any securities or commodities
for their
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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 Investment 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 will take effect on the date first set forth above.
This Agreement shall remain in effect for a period of two (2) years from such
date and shall continue in effect from year to year thereafter, so long as such
continuance shall be 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 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 Investment 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 Investment 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," as defined by the 1940 Act and the rules thereunder.
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 the vote of a
"majority of the outstanding rating securities of the Fund," as defined by the
1940 Act and the rules thereunder.
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 the vote of a majority of the Independent Managers, and by
the vote of a "majority of the outstanding voting securities of the Fund," as
defined by 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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17. This Agreement embodies the entire understanding of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the day and year first above written.
ROBECO-SAGE TRITON MASTER FUND, L.L.C.
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Manager
ROBECO INVESTMENT MANAGEMENT, INC.
By:
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Name:
Title:
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