INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
AGREEMENT made the ___ day of _____ 2002, by and between EVERGREEN
Hedged SPECIALISTS FUND, LLC, a Delaware limited liability company (the "Fund")
and Evergreen INVESTMENT MANAGEMENT COMPANY, LLC a Delaware limited liability
company (the "Adviser").
WHEREAS, the Fund and the Adviser wish to enter into an Agreement
setting forth the terms on which the Adviser will perform certain services for
the Fund.
THEREFORE, in consideration of the promises and the mutual agreements
hereinafter contained, the Fund and the Adviser agree as follows:
1. (a) The Fund hereby employs the Adviser to manage and administer the
operation of the Fund, to supervise the provision of the services to the Fund by
others, and to manage the investment and reinvestment of the assets of the Fund
in conformity with the Fund's investment objectives and restrictions as may be
set forth from time to time in the Fund's then current prospectus and statement
of additional information, if any, and other governing documents, all subject to
the supervision of the Board of Directors of the Fund, for the period and on the
terms set forth in this Agreement. The Adviser hereby accepts such employment
and agrees during such period, at its own expense, to render the services and to
assume the obligations set forth herein, for the compensation provided herein.
The Adviser 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.
2. In executing portfolio transactions for the Fund, the Adviser shall
place all orders for the purchase and sale of portfolio securities for the
account of the Fund directly with the issuer, or with any broker-dealers
selected by the Adviser, in accordance with applicable policies expressed in the
Fund's Registration Statement and in accordance with any applicable legal
requirements. Without limiting the foregoing, the Adviser will use its best
efforts to seek best execution on behalf of the Fund. In assessing the best
execution available for any transaction, the Adviser shall consider 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-dealer, and the reasonableness of the commission, if any (all for the
specific transaction and on a continuing basis). In evaluating the best
execution available, and in selecting the broker-dealer to execute a particular
transaction, the Adviser may also consider the brokerage and research services
(as those terms are used in Section 28(e) of the Securities Exchange Act of 1934
(the "1934 Act")) provided to the Fund and/or other accounts over which the
Adviser or an affiliate of the Adviser exercises investment discretion. The
Adviser is authorized to pay a broker-dealer who provides such brokerage and
research services a commission for executing a portfolio transaction for the
Fund which is in excess of the amount of commission another broker-dealer would
have charged for effecting that transaction if, but only if, the Adviser
determines in good faith that such commission was reasonable in relation to the
value of the brokerage and research services provided by such broker-dealer
viewed in terms of that particular transaction or in terms of all of the
accounts over which investment discretion is so exercised.
3. The Adviser, at its own expense, shall furnish to the Fund office
space in the offices of the Adviser or in such other place as may be agreed upon
by the parties from time to time, all necessary office facilities, equipment and
personnel in connection with its services hereunder, and shall arrange, if
desired by the Fund, for members of the Adviser's organization to serve without
salaries from the Fund as officers or, as may be agreed from time to time, as
agents of the Fund. The Adviser assumes and shall pay or reimburse the Fund for:
(a) the compensation (if any) of the Directors of the Fund who are
affiliated with the Adviser or with its affiliates, or with any adviser retained
by the Adviser, and of all officers of the Fund as such; and
(b) all expenses of the Adviser incurred in connection with its services
hereunder.
The Fund assumes and shall pay all other expenses of the Fund,
including, without limitation:
(a) all charges and expenses of any custodian or depository appointed by
the Fund for the safekeeping of the cash, securities and other property of the
Fund;
(b) all charges and expenses for bookkeeping and auditors;
(c) all charges and expenses of any transfer agents and registrars
appointed by the Fund;
(d) all fees of all Directors of the Fund who are not affiliated with the
Adviser or any of its affiliates, or with any adviser retained by the Adviser;
(e) all brokers' fees, expenses, and commissions and issue and transfer
taxes chargeable to the Fund in connection with transactions involving
securities and other property to which the Fund is a party;
(f) all costs and expenses of distribution of shares of the Fund;
(g) all taxes and fees payable by the Fund to Federal, state, or other
governmental agencies;
(h) all costs of certificates representing units of the Fund;
(i) all fees and expenses involved in registering and maintaining
registration of the Fund with the Securities and Exchange Commission (the
"Commission") and with state agencies, including, without limitation, the
preparation and printing of registration statements, prospectuses, and
statements of additional information for filing with the Commission and other
authorities;
(j) expenses of preparing, printing, and mailing prospectuses and
statements of additional information to members of the Fund;
(k) all expenses of members' and Directors' meetings and of preparing,
printing, and mailing notices, reports, and proxy materials to members of the
Fund;
(l) all charges and expenses of legal counsel for the Fund and for
Directors of the Fund in connection with legal matters relating to the Fund,
including, without limitation, legal services rendered in connection with the
Fund's existence and financial structure and relations with its members, issues
of securities, expenses which the Fund has herein assumed, whether customary or
not, and extraordinary matters, including, without limitation, any litigation
involving the Fund, its Directors, officers, employees, or agents;
(m) all charges and expenses of filing annual and other reports with the
Commission and other authorities; and
(n) all extraordinary expenses and charges of the Fund.
In the event that the Adviser provides any of these services or pays
any of these expenses, the Fund will promptly reimburse the Adviser therefor.
The services of the Adviser to the Fund are not to be deemed exclusive,
and the Adviser shall be free to render similar services to others.
4. As compensation for the Adviser's services to the Fund during the period
of this Agreement, the Fund will pay to the Adviser: (i) an annual fee (the
"Adviser Fee") equal to 2.00% per annum (50% per quarter) of the net assets of
the Fund determined as of the last business day of each quarter. The Adviser Fee
will be payable quarterly in arrears. The first and final quarterly installments
of the Adviser Fee will be payable after the end of the first quarter during
which the Fund first accepts subscriptions (in the case of the first quarterly
fee), or the month during which the Fund ceases to exist (in the case of the
final quarterly fee), and in either case will be prorated for the actual number
of days in such quarter.
5. The Adviser may enter into an agreement to retain, at its own
expense, a firm or firms ("Sub-Adviser") to provide the Fund with some or all of
the services to be provided by the Adviser hereunder, if such agreement is
approved as required by law. Such agreement may delegate to such Sub-Adviser
some or all of Adviser's rights, obligations, and duties hereunder.
6. The Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund in connection with the performance
of this Agreement, except a loss resulting from the Adviser's willful
misfeasance, bad faith, gross negligence, or from reckless disregard by it of
its obligations and duties under this Agreement. Any person, even though also an
officer, Director, partner, employee, or agent of the Adviser, who may be or
become an officer, Director, employee, or agent of the Fund, shall be deemed,
when rendering services to the Fund or acting on any business of the Fund (other
than services or business in connection with the Adviser's duties hereunder), to
be rendering such services to or acting solely for the Fund and not as an
officer, Director, partner, employee, or agent or one under the control or
direction of the Adviser even though paid by it.
7. The Fund shall cause its books and accounts to be audited at least
once each year by a reputable independent public accountant or organization of
public accountant or organization of public accountants who shall render a
report to the Fund.
8. Subject to and in accordance with the Limited Liability Company
Agreement of the Fund, the governing documents of the Adviser and the governing
documents of any Sub-Adviser, it is understood that Trustees, Directors,
officers, agents and shareholders of the Fund or any Adviser are or may be
interested in the Adviser (or any successor thereof) as Directors and officers
of the Adviser or its affiliates, as stockholders of Wachovia Corporation or
otherwise; that Directors, officers and agents of the Adviser and its affiliates
or stockholders of Wachovia Corporation are or may be interested in the Fund or
any Adviser as Trustees, Directors, officers, shareholders or otherwise; that
the Adviser (or any such successor) is or may be interested in the Fund or any
Sub-Adviser as a security holder, or otherwise; and that the effect of any such
adverse interests shall be governed by the Limited Liability Company Agreement
of the Fund, governing documents of the Adviser and governing documents of any
Sub-Adviser.
9. This Agreement shall continue in effect for two years from the date
set forth above and after such date (a) such continuance is specifically
approved at least annually by the Board of Directors of the Fund or by a vote of
a majority of the outstanding voting securities of the Fund, and (b) such
renewal has been approved by the vote of the majority of Directors of the Fund
who are not interested persons, as that term is defined in the Investment
Company Act of 1940 (the "1940 Act"), of the Adviser or of the Fund, cast in
person at a meeting called for the purpose of voting on such approval.
10. On sixty days' written notice to the Adviser, this Agreement may be
terminated at any time without the payment of any penalty by the Board of
Directors of the Fund or by vote of the holders of a majority of the outstanding
voting securities of the Fund; and on sixty days' written notice to the Fund,
this Agreement may be terminated at any time without the payment of any penalty
by the Adviser with respect to the Fund. This Agreement shall automatically
terminate upon its assignment (as that term is defined in the 1940 Act). Any
notice under this Agreement shall be given in writing, addressed and delivered,
or mailed postage prepaid, to the other party at the main office of such party.
11. This Agreement may be amended at any time by an instrument in
writing executed by both parties hereto or their respective successors, provided
that with regard to amendments of substance such execution by the Fund shall
have been first approved by the vote of the holders of a majority of the
outstanding voting securities of the Fund and by the vote of a majority of
Directors of the Fund who are not interested persons (as that term is defined in
the 0000 Xxx) of the Adviser, any predecessor of the Adviser, or of the Fund,
cast in person at a meeting called for the purpose of voting on such approval. A
"majority of the outstanding voting securities" of the Fund shall have, for all
purposes of this Agreement, the meaning provided therefore in the 1940 Act.
12. Any compensation payable to the Adviser hereunder for any period
other than a full year shall be proportionately adjusted.
13. The provisions of this Agreement shall be governed, construed, and
enforced in accordance with the laws of the State of Delaware, without regard to
conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EVERGREEN HEDGED SPECIALISTS FUND, LLC
By:
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Name:
Title:
EVERGREEN INVESTMENT
MANAGEMENT COMPANY, LLC
By:
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Name:
Title:
