ACCOUNT MANAGEMENT AGREEMENT
This Account Management Agreement (the "Agreement") is entered into as of
the 29th day of June, 2005, by and between CD Capital Management LLC, a Delaware
limited liability company ("CD Capital"), and The Xxx Xxxxxxxx Foundation
("Client").
1. ACCOUNT. Client has established a brokerage account (the "Account") with
Xxxxxxx Sachs (the "Broker"). Client will fund the Account with an initial $[*]
in cash. The Client may make additions to, and withdrawals from, the Account
upon prior written notice to Manager.
2. AUTHORITY. Client authorizes CD Capital to direct the investments of and
for the Account on a discretionary basis, without prior consultation with
Client, in accordance with the Investment Objectives (defined below) and subject
to such limitations and restrictions set forth in Paragraph 4 below and such
other limitations and restrictions as Client may hereafter impose by notice in
writing to CD Capital. This discretionary authority makes CD Capital the agent
and attorney-in-fact with full power and authority in connection with the
Account to buy, sell, exchange, convert and otherwise trade in any and all
stocks, bonds and other securities (including, for the avoidance of doubt,
options) as CD Capital may select, subject to the aforementioned limitations.
The authority of CD Capital under this Agreement shall continue until receipt of
written notice of its termination by Client.
3. INVESTMENT OBJECTIVES. Client hereby instructs CD Capital to manage the
Account in accordance with the "Investment Objectives" described in Schedule 1
attached hereto until such time as CD Capital receives revised written
instructions signed by Client.
4. LIMITATIONS. Without the prior written direction of Client, CD Capital
shall not:
(i) buy, sell, sell short or otherwise trade or invest in or take a
position in any securities or any derivatives thereof of issuers (or their
parent or subsidiary companies) identified in Client's "Watchlist," an
initial copy of which is attached as Schedule 2 hereto (which Watchlist
will be updated by Client from time to time and provided to CD Capital); or
(ii) purchase or sell any securities on behalf of Client which
purchase or sale would require the filing of a Schedule 13D, Schedule 13G,
Form 3 or Form 4 under the Securities Exchange Act of 1934, as amended; or
(iii) make any investments which could result in any unrelated
business taxable income, as defined in Section 512 of the Internal Revenue
Code of 1986, as amended (the "Code"), including, without limitation, any
investments (such as investments purchased on margin) that could result in
any debt financed income (as defined in section 514 of the Code).
5. EXPENSES. CD Capital shall enter orders for the Account with the Broker
or any other executing broker that CD Capital shall work through in its
discretion. All brokerage commissions and other out-of-pocket direct investment
expenses, including, but not limited to, the Account's pro rata portion of
out-of-pocket legal and due diligence expenses, reasonably incurred in
connection with transactions for the Account will be paid out of the assets of
the Account and are in addition to the Management Fee and Profit Allocation paid
to CD Capital.
6. MANAGEMENT FEE AND PROFIT ALLOCATION. During the term of this Agreement,
Client shall pay CD Capital: (i) a monthly management fee ("Management Fee")
equal to [*]% of the Account's Net Asset Value as of the first day of each month
(including any new contribution then being made and prior to accrual of the
Management Fee being determined or of any Profit Allocation (as defined below).
Such Management Fee shall be deducted from the Account's balance on such date;
plus (ii) as of each December 31 (or the date of termination of CD Capital's
services hereunder), a "Profit Allocation" in the amount of [*]% of any
* Blank spaces contained confidential information that has been filed separately
with the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended.
increase in Net Asset Value of the Account in excess of the High Water Xxxx
(prior to the accrual of the Profit Allocation being determined). The "High
Water Xxxx" for the Account is the highest Net Asset Value of the Account as of
any previous December 31 or the initial opening balance of the Account, if
higher (it being understood that the High Water Xxxx for December 31, 2005
Profit Allocation shall be the initial opening balance of the Account).
Operating expenses (including those set forth in Paragraph 5 herein) reduce Net
Asset Value for purposes of calculating the Profit Allocation. Profit
Allocations do not themselves reduce increases in Net Asset Value for purposes
of calculating subsequent Profit Allocations, i.e., CD Capital does not have to
"earn back" the Profit Allocation previously made from the Account in order for
the Net Asset Value of the Account to exceed its High Water Xxxx and be subject
to an additional Profit Allocation. Any withdrawals made from the Account other
than as of a December 31 will be assessed a proportionate allocation at the time
of withdrawal. The High Water Xxxx will be proportionately reduced each time a
withdrawal is made from the Account.
7. VALUATION. "Net Asset Value" of the Account shall mean the value of the
assets of the Account less the liabilities of the Account, if any, as of the
close of business on the valuation date determined in accordance with the
valuation provisions set forth in Schedule 3 attached hereto.
8. VOTING OF PORTFOLIO SECURITIES. Unless Client otherwise instructs CD
Capital in writing, from time to time, decisions on the voting of proxies will
be made by Client and not by CD Capital.
9. REPORTS TO CLIENT. CD Capital will render to Client no later than the
10th day of each calendar month a written account statement detailing the
Account's Net Asset Value. It is further understood that the Client may access
its Account at anytime and may view the investments and assets of the Account.
In addition, from time to time, promptly upon Client's request, CD Capital shall
prepare and render to Client such other reports as Client may reasonably
request.
10. CUSTODY; SOFT DOLLARS. All transactions will be consummated by payments
to, or delivery by, Client of all cash and/or securities due to or from the
Account. The Broker, not CD Capital, shall act as custodian for the Account.
Client shall not withdraw or deposit cash and/or securities in the Account
without simultaneously informing CD Capital. Any "soft dollar" arrangement
between CD Capital and a broker relating to commissions generated by the Account
shall comply with Section 28(e) of the Securities Exchange Act of 1934, as
amended, unless otherwise consented to by the Client.
11. ALLOCATIONS. CD Capital will manage the Account's assets and currently
manages assets of other accounts. CD Capital will allocate trades among the
accounts in accordance with evaluation of the following criteria: (i) exposure
to the securities, issuer or market in question; (ii) liquidity positions and
requirements; (iii) tax considerations; (iv) regulatory considerations; (v)
relative capitalization and cash availability; (vi) relative risk and value at
risk profiles; (vii) borrowing base considerations; (viii) historical and
anticipated subscription and redemption patterns; (ix) minimum investment
criteria; and (x) investment time horizon.
12. UNDERTAKINGS BY THE PARTIES.
(i) Undertakings of the Client. The Client represents that it:
(a) has advised CD Capital of its investment objectives pursuant to
Schedule 1 subject to such limitations and restrictions set forth in
Paragraph 4 herein, which may be amended by agreement of the parties;
(b) shall deliver to CD Capital or the Client's brokers, dealers and
trading counterparties, evidence of CD Capital's authority to trade on
behalf of the Account; and
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(c) shall instruct any counterparties for the Account (including the
Broker) to send duplicate confirmations to CD Capital.
(ii) Undertakings of CD Capital. CD Capital represents that it:
(a) shall manage the Account at all times in material compliance with
Schedule 1 and subject to such limitations and restrictions set forth
in Paragraph 4 herein, which may be amended by agreement of the
parties; and
(b) shall consult with the Client on an ongoing basis concerning
matters relating to the Account, including, but not limited to, review
of positions, investment ideas, performance, prospects and portfolio
of the Account.
13. REPRESENTATIONS AND WARRANTIES BY THE PARTIES.
(i) Representations and Warranties of CD Capital. CD Capital
represents and warrants to the Client as follows:
(a) CD Capital is duly organized and validly existing under the laws
of its jurisdiction of organization with full corporate power and
authority to perform its obligations under this Agreement.
(b) This Agreement has been duly and validly authorized, executed and
delivered on behalf of CD Capital and constitutes a binding and
enforceable obligation in accordance with its terms.
(c) The execution and delivery of this Agreement, the incurrence of
the obligations herein and therein set forth and the consummation of
the transactions contemplated herein and in Schedule 1 will not
constitute a breach of, or default under, the constituent documents of
CD Capital, any instrument by which CD Capital is bound or under any
order, rule or regulation applicable to CD Capital, or any court or
any governmental body or administrative agency having jurisdiction
over CD Capital.
(d) CD Capital has all United States governmental, regulatory and
exchange licenses and approvals and has effected all filings and
registrations with United States governmental and regulatory agencies
required to conduct its business and to act as described in Schedule 1
or required to perform its obligation under this Agreement.
(e) There is not pending, or the best of CD Capital's knowledge
threatened, any action, suit or proceeding before or by any court or
other governmental body to which CD Capital is a party, or to which
any of the assets of CD Capital is subject, which might reasonably be
expected to result in any material adverse change in the condition,
financial or (otherwise, business or prospects of CD Capital). CD
Capital has not received any notice of an investigation regarding non-
compliance by CD Capital with applicable law.
(ii) Representations and Warranties of the Client. The Client
represents and warrants to CD Capital as follows:
(a) The Client is duly organized and validly existing under the laws
of its jurisdiction of organization with full corporate power and
authority to perform its obligations under this Agreement.
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(b) This Agreement has been duly and validly authorized, executed and
delivered on behalf of the Client and constitutes its binding and
enforceable obligation in accordance with its terms.
(c) The Client has full power and authority under applicable law to
perform its obligations under this Agreement.
(d) The execution and delivery of this Agreement, the incurrence of
the obligations herein and therein set forth and the consummation of
the transactions contemplated herein and in Schedule 1 will not
constitute a breach of, or default under, the constituent documents of
the Client, any instrument by which the Client is bound or under any
order, rule or regulation applicable to the Client, or any court or
any governmental body or administrative agency having jurisdiction
over the Client.
(e) The Client has all United States governmental, regulatory and
exchange licenses and approvals and has effected all filings and
registrations with United States governmental and regulatory agencies
required to conduct their business and to act as described in Schedule
1 or required to perform its obligation under this Agreement.
14. EXCULPATION. CD Capital shall have no obligations to the Account other
than those expressly set forth in this Agreement and any other obligations
arising by law. CD Capital's responsibility under this Agreement is to furnish
the Account with advisory services based upon its professional skill, experience
and judgment and CD Capital makes no representation or warranty as to the
accomplishment of any particular investment results by the Account. CD Capital,
its members, principals and affiliates and their respective members, officers,
employees and agents (collectively, "Manager Party") shall not be liable to the
Client for any claims, costs, expenses, damages or losses arising out of or in
connection with this Agreement, the Client, the Account, and its operation other
than to the extent attributable to the fraud or negligence of the Manager Party,
the willful disregard of the Manager Party's duties to Client, or any violation
by a Manager Party of the applicable provisions of the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended, the Investment
Advisers Act of 1940, as amended, any state or local securities laws or any
stock exchange or NASDAQ regulations.
No Manager Party shall be liable to the Client for failure to obtain the
lowest negotiated brokerage commission rates, or to combine or arrange orders so
as to obtain the lowest brokerage commission rates with respect to any
transaction on behalf of the Account, or for failure to recapture, directly or
indirectly, any brokerage commissions for the benefit of the Account. No Manager
Party shall be liable to the Client for claims, costs, expenses, damages, or
losses due to circumstances beyond any Manager Party's control, including but
not limited to, the bankruptcy, insolvency or suspension of normal business
activities by any bank, brokerage firm or transfer agent holding assets of the
Account, or due to the negligence, dishonesty, bad faith or misfeasance of any
employee, broker, agent or sub-contractor of the Account chosen by a Manager
Party in good faith.
In no respect by way of limiting the foregoing exculpatory provisions but
rather by way of greater certainty, no Manager Party shall be liable to the
Client for any actions or omissions of any broker or dealer chosen by a Manager
Party in good faith.
15. INDEMNIFICATION. The Client shall indemnify and hold harmless the
Manager Parties from and against any loss or expense suffered or sustained by
any of them by reason of the fact that a Manager Party is or was connected in
any respect with the Account, including, without limitation, any judgment,
settlement, attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action or proceeding; provided that
the Manager Party would not have been subject to liability under Paragraph 14
hereunder or this Paragraph 15 for the conduct which led to such loss or
expense.
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CD Capital shall indemnify and hold harmless the Client from and against
any loss or expense suffered or sustained by it (including, without limitation,
any judgment, settlement, attorneys' fees and other costs or expenses incurred
in connection with the defense of any actual or threatened action or proceeding)
to the extent attributable to the fraud or negligence of CD Capital, the willful
disregard of CD Capital's duties to Client, or any violation by CD Capital of
the applicable provisions of the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Investment Advisers Act of
1940, as amended, any state or local securities laws or any stock exchange or
NASDAQ regulations.
Whether or not a party is entitled to indemnification hereunder shall be
determined by a court, arbitral tribunal, administrative forum or mutual written
agreement of the parties.
16. CONFIDENTIAL RELATIONSHIP. Except as otherwise agreed between the
parties, all information and advice furnished by either party to the other
hereunder, including by or to their respective agents and employees, shall be
treated as confidential and shall not be disclosed to third parties except as
required by law.
17. INDEPENDENT CONTRACTOR. For all purposes of this Agreement, CD Capital
shall be an independent contractor and not an employee or dependent agent of the
Client; nor shall anything herein be construed as making the Client a partner or
co-venturer with CD Capital or any of its affiliates or other clients. Except as
provided in this Agreement, CD Capital shall not have any authority to bind,
obligate or represent the Client.
18. CONFLICTS. (i) It is understood that CD Capital and its affiliates
perform investment advisory and management services for clients other than the
Client and that CD Capital and its affiliates may for its or their own behalf
effect transactions with respect to investment interests which are the same as
or similar to those which the Client's portfolio may own.
(ii) CD Capital may give advice, take action and effect transactions with
respect to investment interests in the performance of its duties with respect to
any of its other clients or on its own (or its affiliates') behalf which may
differ from advice given to, or the timing and nature of action taken and
transactions effected with respect to, the Client.
(iii) Transactions in securities or other investment interests may be
accomplished on behalf of other clients from whom CD Capital has discretionary
authority or on its own (or its affiliates') behalf prior to the time that
recommendations or transactions in the same securities or other investment
interests may be communicated to the Client (or executed by or on behalf of the
Client) and at prices which may be different than those at which transactions in
the same securities or other investment interests are executed by or on behalf
of the Client. The compensation which may be received by CD Capital and/or its
affiliates from such other accounts or profits realized on its own (or its
affiliates') behalf may differ from the compensation to be received by CD
Capital from the Client or from the profits realized by the Client's portfolio.
19. TERMINATION AND/OR ASSIGNMENT. CD Capital's management of the Account
hereunder may be terminated at any time by either party by giving to the other
written notice of such termination. Upon termination, any unpaid Management Fee
will be prorated to the date of termination specified in the notice of
termination. The Profit Allocation for the calendar year during which the
termination occurs shall be determined based on the Net Asset Value of the
Account on the termination date. No assignment of this Agreement shall be made
by CD Capital, other than to affiliates, without the prior written consent of
Client.
20. PATENTS, COPYRIGHTS, TRADEMARKS, AND OTHER PROPERTY RIGHTS. Any and all
inventions, improvements, discoveries, formulas, fund management,
administration, and accounting systems, processes, and computer software
relating to CD Capital's business (whether or not patentable),
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discovered, or developed are the sole and absolute property of CD Capital. CD
Capital is the sole and absolute owner of all patents, copyrights, trademarks,
and other property rights to those items.
21. NOTICES. Any notice required or desired to be delivered under this
Agreement shall be in writing and shall be delivered by courier service, postage
prepaid mail, facsimile, electronic mail or another agreed upon method and shall
be effective upon actual receipt by the party to which such notice shall be
directed, addressed as follows (or to such other address as the party entitled
to notice shall hereafter designate in accordance with the terms hereof):
If to the Client: Xxxx Xxxxxxxxxxxxxx c/o PerkinsCoie, 000 X
Xxxxxxxx, Xxxxxxx Xxxxxxxx 00000 telephone (000) 000-0000: facsimile (312)
324-9602. Email: XXxxxxxxxxxxxxx@xxxxxxxxxxx.xxx
with a copy to:
Xxxxxxx Xxxxxxxxx, 0000 X Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000:
telephone: (000)-000-0000: facsimile: (000) 000-0000. Email:
xxxxxxxxxxxx@xxxxxxxxx.xxx.
If to CD Capital: Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000; telephone: (000)000-0000; facsimile: (000)000-0000. Email:
xxxx@xxxxxxxxx.xxx.
22. AMENDMENT; WAIVER. This Agreement shall not be amended except by a
writing signed by the parties hereto. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto
or from any failure by either party hereto to assert its rights hereunder on any
occasion or series of occasions.
23. SEVERABILITY. If any provision of this Agreement, or the application of
any provision to any person or circumstance, shall be held to be inconsistent
with any present or future law, ruling, rules or regulation of any court or
governmental or regulatory authority having jurisdiction over the subject matter
hereof, such provision shall be deemed to be rescinded or modified in accordance
with such law, ruling, rule or regulation, and the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those as to which it shall be held inconsistent, shall not be affected thereby.
24. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED UNDER
THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT
OF LAWS.
25. SURVIVAL. Provisions of this Agreement that by their terms or by their
context are to be performed in whole or in part after termination of this
Agreement shall survive termination of this Agreement. Specifically, and without
limiting the generality of the foregoing, the obligations set forth in Sections
15, 16 and 20 shall survive the termination of this Agreement.
26. COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
27. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
28. NEW CD CAPITAL FUND. CD Capital intends to launch a new investment fund
(the "Fund") with substantially the same investment objectives as the Investment
Objectives described in Schedule 1 attached hereto. Client shall have the option
to contribute all or part of the securities and other assets held in the Account
to the Fund at the Net Asset Value of the Account on the contribution date.
Several of the major business terms and conditions under which the Client may
invest in the Fund are agreed to and detailed in Schedule 4. It is also
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further agreed that all final terms and conditions of the Client's investment in
the Fund will be governed by the Fund's offering documents and other ancillary
documents as may be required. Such final documentation will be negotiated in
good faith, but will be consistent with the offering documents for Carpe Diem
Long Short Fund, which Client has previously reviewed.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the parties hereto have executed this Account
Management Agreement on the date first above written.
CD CAPITAL MANAGEMENT LLC
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
Manager
The Xxx Xxxxxxxx Foundation
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Its: Treasurer
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SCHEDULE 1
INVESTMENT OBJECTIVES
1. Financing Events including but not limited to: IPO's, follow on
offerings, debt recapitalizations, direct mezzanine and asset based lending to
public companies and private investments in public equities, or PIPE'S.
2. Operational Stress Events including but not limited to pre and post
reorganization (Chapter 11) investments including acquiring public debt
instruments of: (i) stressed situations (not expected to file Chapter 11), such
as convertible instruments detached from their call option and fallen credits;
(ii) companies expected to emerge from Chapter 11; and acquiring public equities
of post reorganization companies;
3. Relative Value Events including announced M&A transactions, hedged
credit plays (long debt and short stock of the same issuer), control situations,
spin-offs and spin-outs; and
4. Informational edge (defined catalyst) trades including opportunistically
buying "value" with a catalyst and shorting overvalue with catalyst.
CD Capital intends to concentrate its efforts on categories one and two
above, but will also see opportunities to execute in relative value and
value/catalyst trades and may execute thereon.
In addition, CD Capital will be actively hedging such transactions by
selling short equity and debt securities.
SCHEDULE 3
VALUATION
The Net Asset Value ("NAV") of the Account means the value of the
Account's assets less its liabilities, if any, as of any date of determination,
computed in accordance with U.S. generally accepted accounting principles
("GAAP"), except as otherwise described below. To the extent feasible,
dividends, interest and other income as well as expenses, fees and other
liabilities will be accrued in accordance with GAAP or otherwise disclosed
herein. In calculating the Account NAV, the-Management Fee will be accrued as an
expense of the Account until they are paid.
CD Capital will make determinations of the value of the Account's
positions based on information it believes to be reliable and accurate. In
determining valuations, CD Capital will take steps to consistently apply pricing
procedures and document pricing sources. CD Capital will use best efforts to
obtain prices from reputable brokers/dealers, particularly its executing
brokers, prime brokers, and data sources such as Bloomberg L.P.
Prices for instruments for which the principal market is a securities
exchange or similar market, shall be the settlement price or last reported
closing price reported on such exchange on the valuation date, or the most
recent transaction price if such closing price is not available.
Restricted securities, illiquid positions and other securities that
are not Freely Tradable Securities, as defined below, but in respect of which
there are similar securities that are publicly quoted, may be valued at a
discount, determined by CD Capital, to the price of Freely Tradable Securities
of the same class as reported by Bloomberg, L.P. or by the Account's custodians.
If no market exists for any such securities positions or where prices cannot be
ascertained by Bloomberg, L.P. or from the Account's custodian, CD Capital will
carry such positions at fair value as determined jointly by CD Capital. However,
certain non Freely Tradable Securities, as defined below, such as warrants or
convertible instruments that can be valued via quantitative models such as the
Black-Scholes Model will be carried at a discount, as determined by CD Capital,
to the theoretical value of such instruments. The inputs to such models will be
reflective of market terms as determined by CD Capital.
"Freely Tradable Securities" means any of the following: (i)
securities that are not "restricted securities" within the meaning of Rule 144
under the Securities Act; (ii) restricted securities that may be immediately
sold pursuant to Rule 144 (without regard to the volume limitations contained in
Rule 144); and (iii) restricted securities that are included in an effective
registration statement filed pursuant to the Securities Act.
