MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT
(“Agreement”)
is made as of January 20, 2010, among WFM HOLDINGS LTD., a company
organized under the laws of the Cayman Islands (the “Company”),
and WESTON CAPITAL ASSET
MANAGEMENT LLC, a limited liability company organized under the laws of
Delaware, U.S.A. (the “Portfolio
Manager”). The Company and the Portfolio Manager are
collectively referred to as the “Parties”)
WITNESSETH:
WHEREAS,
the Company wishes to retain the Portfolio Manager to provide investment advice
and services upon the terms and conditions of this Agreement;
NOW, THEREFORE, in
consideration of the mutual covenants and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto do hereby agree as follows:
1. Duties of
the Portfolio Manager. The Portfolio
Manager is hereby appointed as the Company’s limited attorney-in-fact to manage
the portfolio of investments and other assets of the Company, including without
limitation, its interests in, or shares of, various investment pools, in each
case acquired by the Company from Wimbledon Financing Master Fund Ltd., a Cayman
Islands exempted company (collectively with the proceeds thereof and all income,
dividends and other distributions thereon, as well as any other assets agreed to
from time to time by the Company and the Portfolio Manager, the “Assets”)
in accordance with the Portfolio Manager’s best judgment (the “Investment
Strategy”). This limited power-of-attorney is a continuing
power and shall continue in effect with respect to the Portfolio Manager until
terminated pursuant to the terms of this Agreement. The Portfolio
Manager shall act as the sole portfolio manager retained by the Company with
respect to the Assets and, specifically, shall exercise its discretion with
respect to the Assets upon the terms and conditions set forth in this Agreement,
and shall have sole authority and responsibility for making all decisions
regarding the maintenance and disposition of the Assets, including without
limitation, directing the investment and reinvestment of the Assets at such
times, in such amounts and at such prices as the Portfolio Manager shall
determine for the term of this Agreement pursuant to and in accordance with this
Agreement. The Company shall have no authority to retain any
additional portfolio managers or investment managers with respect to the Assets
or to substitute the Portfolio Manager without the prior written consent of the
Portfolio Manager, except as may be provided pursuant to the terms of this
Agreement.
2. Authority
of the Portfolio Manager. The Portfolio Manager is authorized,
on behalf of the Company, to:
(a) manage
the maintenance and disposition of the Assets and the proceeds thereof directly
and indirectly, in accordance with the Investment Strategy, and to enter into
any agreement and to do any and all acts and things for the preservation,
protection, improvement and enhancement in value of the Assets and the proceeds
thereof in accordance with the Investment Strategy;
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(b) possess,
purchase, sell, transfer, mortgage, pledge or otherwise deal in, and to exercise
all rights, powers, privileges and other incidents of ownership or possession
(including, but not limited to, voting power to vote all proxies with respect to
investments held by the Company at the direction of the Portfolio Manager) with
respect to the Assets;
(c) lend
any of the Assets, as appropriate, provided, that if appropriate, collateral at
least equal in value to the market value of such Assets is deposited by the
borrower thereof with the Company;
(d) trade
on margin, borrow from banks, brokers or other institutions and pledge the
Assets in connection therewith;
(e) engage
professionals, including affiliates of the Portfolio Manager, whether part-time
or full-time, and attorneys, independent accountants or such other persons as
the Portfolio Manager may deem necessary or advisable subject to the approval of
the Directors of the Company (the “Directors”);
provided, however, that the Portfolio Manager may, in its reasonable discretion
and without the approval of the Directors, engage professionals in connection
with the implementation of the Investment Strategy;
(f) make
all decisions relating to the manner, method and timing of sale and investment
transactions relating to the Assets and the proceeds therefrom;
(g) combine
purchase or sale orders with respect to the Assets on behalf of the Company
together with other accounts to whom or to which the Portfolio Manager provides
investment services or accounts of affiliates of the Portfolio Manager (“Other
Accounts”) and allocate equitably the assets so purchased or sold, among
such accounts;
(h) issue
orders and directions to any bank at which the Company maintains a general
account with respect to the disposition and application of monies or investments
of the Company from time to time held by such bank;
(i) open,
maintain, conduct and close accounts, including, without limitation, custodial
accounts and brokerage and margin accounts, with any broker, dealer or
investment concern, to issue orders and directions to any broker, dealer or
investment concern at which the Company maintains an account with respect to the
disposition and application of monies or investments of the Company constituting
Assets from time to time held by such broker, dealer or investment concern;
and
(j) facilitate
and assist the Company with any necessary regulatory filings and audits with
respect to the Assets.
All
transactions relating to the Assets for the benefit of the Company shall be
effected by the Portfolio Manager through such entities or persons as the
Portfolio Manager may direct from time to time.
3. Policies
of the Company. The activities engaged in by the Portfolio
Manager on behalf of the Company shall be subject to:
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(a) the
Company’s organizational documents as may from time to time be amended,
supplemented, revised or restated;
(b) such
policies as may be adopted from time to time by the Directors in consultation
with the Portfolio Manager; and
(c) all
provisions of applicable law.
Notwithstanding
the foregoing, the Portfolio Manager shall not be bound by any amendment,
supplement or revision to any of the documents and policies referenced in this
Section 3 unless and until it has been given prior written notice thereof in
accordance with Section 12(f) hereof. The Portfolio Manager will
submit such periodic reports to the Directors regarding the Portfolio Manager’s
activities hereunder as the Directors reasonably may request.
4. Access to
Information. At the request of the Company, the Portfolio
Manager shall give to the Company’s auditors or other designees reasonable
access to documents pertaining to the Company’s activities during customary
business hours and shall permit such auditors to make copies thereof or extracts
therefrom at the expense of the requesting party.
5. Confirmations
and Reports. The Company shall make available to the Portfolio
Manager copies of all transaction confirmations and investment statements
relating to the Assets, as well as any other reports relating to the Assets
which the Portfolio Manager may request. Upon request, the Company
shall provide the Portfolio Manager with accurate information with respect to
the then-current Net Asset Value (as defined below in Section 7(b)) of the
Assets, as well as such other information as the Portfolio Manager reasonably
may request including, but not limited to, access to the books and records of
the Company. Such information provided to the Portfolio Manager may
be disclosed by the Portfolio Manager to such persons and authorities, for the
purpose of satisfying its business obligations hereunder, fiduciary, reporting,
filing or other obligations hereunder, or if the Company is requested to
disclose such information by regulatory officials, or required by judicial
process or regulatory action.
6. Other
Account Management. The Portfolio Manager, as well as its
affiliates and any of its or their partners, managers, members, principals,
officers, directors, employees, shareholders and other applicable representative
shall be free to manage and trade accounts for other investors, as well as
itself and themselves, during the term of this Agreement and to use the same
information and Investment Strategy used in the performance of services for the
Company for such other accounts and shall not by reason of such engagement of
other businesses or rendering of services for others be deemed to be acting in
conflict with the interests of the Company.
7. Class F
Shares; Fees and Expenses.
(a) Class F
Shares. The Company shall ensure that the Assets and their
related liabilities are held in one or more segregated accounts that are legally
separate from any other assets and liabilities of the Company and that the
Assets and their related liabilities are all allocable to a newly issued share
class of the Company denominated as Class F (the shares of such class, the
“Class F
Shares”).
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(b) Net Asset Value. As
used in this Agreement, “Net Asset
Value” means at any date the total assets of the Company attributable to
Class F Shares, which includes all cash and cash equivalents constituting Assets
and accrued interest thereon, and the market value of the Company’s investments
constituting Assets, less all liabilities of the Company related solely to the
maintenance and disposition of the Assets, based upon the accrual basis of
accounting in accordance with generally accepted accounting procedures in the
United States under the accrual method of accounting (“GAAP”). For
the avoidance of doubt, in no event shall any liabilities other than those
attributable to the maintenance and disposition of Assets be allocable to the
Class F Shares or included within the term “Net Asset Value”.
(c) Management
Fee. The Company shall pay to the Portfolio Manager throughout
the term of this Agreement a quarterly management fee (the “Management
Fee”) in an amount equal to 0.3125% (equivalent to 1.25% per annum) of
the Net Asset Value at the end of each calendar quarter before reduction for
liabilities attributable to (i) the Management Fee and (ii) any Performance Fee
which may be due and owing under paragraph (d) below. The Management
Fee shall be paid promptly following the end of each calendar quarter and shall
be pro-rated to take into account any intra-quarter additions, redemptions and
distributions.
(d) Performance
Fee.
(1) The
Company shall pay to the Portfolio Manager a performance-based fee (the “Performance
Fee”) in an amount equal to 10% of any Investment Profits (both realized
and unrealized) attributable to the Class F Shares as of the end of each fiscal
quarter. The Performance Fee shall be paid promptly following the end
of each calendar quarter of the Company commencing with the quarter ended March
31, 2010 and on each quarter-end thereafter during the term of this
Agreement.
(2) “Investment
Profits” for each calendar quarter shall mean the excess (if any) of (A)
the Net Asset Value as of the last day of any quarter or such other date as
specified in sub-Section (d)(6) and (e) below of this Section 7 (which amount
includes deductions of all fees and expenses attributable to the Class F Shares
paid or payable as of the last day of such calendar quarter, but before the
deduction of the Performance Fee for such quarter), minus (B) the Net Asset
Value as of the last day of the most recent preceding quarter for which a
Performance Fee was earned (or with respect to the first Performance Fee under
this Agreement, the date of this Agreement), after deduction of all fees and
expenses attributable to the Class F Shares paid or payable for such prior
quarter. In computing Investment Profits, the difference between (A)
and (B) in the preceding sentence shall be (i) decreased by the sum
of (x) all capital contributions to Class F of the Company between the dates
referred to in (A) and (B); and (y) the Makeup Amount (if any) as of the
immediately preceding Measurement Period (each as defined below) and (ii) increased by (1) any
distributions, dividend or redemption amounts paid or payable with respect to
the Class F Shares as of, or subsequent to, the date in (B) through the date in
(A), and (2) losses, if any, associated with redemptions of Class F Shares from
the date in (B) through the date in (A).
(3) “Makeup
Amount” shall mean the amount by which (a) losses attributable to the
Class F Shares from the later of (i) the date of this Agreement and (ii) the
date as of which the Company was last required to pay a Performance Fee through
the close of a Measurement Period (on account of decreases in the Net Asset
Value and any Management Fees paid), exceed (b) gains over the same period (on
account of increases in Net Asset Value) attributable to the Class F
Shares. If any Class F Shares are redeemed, the Makeup Amount will be
reduced in proportion to the amount redeemed relative to the Net Asset Value as
of the date of redemption (prior to giving effect to such
redemption).
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(4) “Measurement
Period” shall mean, in the case of the first Measurement Period, the
period beginning on the date hereof and ending on the last day of the same
calendar quarter, and in the case of subsequent Measurement Periods, beginning
with the first day of the calendar quarter following the immediately preceding
Measurement Period and ending on the last day of that calendar quarter;
provided, that in the case of Class F Shares redeemed, the Measurement Period
with respect to those Class F Shares shall end on the applicable redemption
date; and provided further, that in the event the Company or this Agreement is
terminated, the final Measurement Period shall end on the date of such
termination.
(5) For
the avoidance of doubt, Performance Fees will be paid on a peak-to-peak basis
(and will take into account both realized and unrealized profits and losses) and
thus will not be paid after a quarter in which the Class F Shares experience net
trading losses until such losses (excluding losses from redeemed shares) are
recouped and additional appreciation is achieved.
(6) If
any redemption of Class F Shares occurs as of any date which is not the end of a
fiscal quarter, to the extent that as of such date Investment Profits have been
achieved, the Portfolio Manager will receive a Performance Fee thereon as if
such redemption occurred as of the end of a fiscal quarter.
(7) Once
earned, Performance Fees are non-refundable and shall not be affected by any
subsequent losses.
(e) Effect of
Termination. In the event of the termination of this
Agreement, the Management Fee and Performance Fee shall be computed by treating
the effective date of termination as if it were the last day of the applicable
period for payment of the fee.
(f) Expenses. All
expenses incurred directly or indirectly in connection with the transactions
effected or investments held on behalf of the Company pursuant to the Portfolio
Manager’s exercise of its duties hereunder shall be paid or reimbursed by the
Company. The Portfolio Manager will be responsible for and bear all
of its overhead expenses in managing the Company including rent, salaries and
related expenses. The Company will pay its own operating, legal,
accounting and auditing fees as incurred and any extraordinary
expenses.
8. Term and
Termination.
(a) Term. The term of
this Agreement shall commence as of the date hereof and shall continue until
terminated in accordance with this Section 8.
(b) Automatic
Termination. This Agreement shall terminate automatically in
the event that the Company is dissolved and wound-up in accordance with the
Company’s Memorandum and Articles of Association or all of the Assets are
liquidated and the proceeds thereof distributed by the Company to its
shareholders following payment to the Portfolio Manager of all amounts due
hereunder.
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(c) Optional Termination Right
of the Company or the Portfolio Manager. Either the Company or
the Portfolio Manager may terminate this Agreement immediately in the event of
the bankruptcy or insolvency of either Party hereto.
(d) Termination for
Cause. Additionally, the Company may terminate this Agreement for cause
upon at least 30 days’ notice to the Portfolio Manager. For purposes
of this Section 8(d), “cause” will arise if the Portfolio Manager
shall:
(1) be
the subject of a consent decree or injunction by the Securities and Exchange
Commission that imposes sanctions on the Portfolio Manager, which in the
reasonable judgment of the Company is reasonably likely to result in the
Portfolio Manager’s inability to perform its obligations under this
Agreement;
(2) breach
any material term or condition of this Agreement which breach shall not be cured
by the Portfolio Manager within 45 days following written notice of such breach
by the Company (specifying therein the nature of such breach);
(3) commit
any act of omission or commission constituting gross negligence, willful
malfeasance or breach of its fiduciary duty of due care and loyalty to the
Assets or the Company; or
(4) be
convicted or indicted for any felony.
9. Standard
of Liability and Indemnity.
(a) Neither
the Portfolio Manager nor any of its affiliates nor any of its or their members,
partners, officers, directors, managers, employees or shareholders or any of
their respective successors and assigns (collectively, the “Portfolio
Manager Parties”) shall be liable, responsible or accountable in damages
or otherwise to the Company or its successors, assignees or transferees, or to
third parties for any act or omission performed or omitted by them on behalf of
the Company and in a manner reasonably believed by them to be within the scope
of the authority granted to them by this Agreement or for any costs, damages or
liabilities arising therefrom or by law, unless that act or omission constitutes
a breach of fiduciary obligations, fraud or willful misconduct by the Portfolio
Manager (the “Portfolio
Manager Bad Acts”). Neither the Portfolio Manager nor any of
the Portfolio Manager Parties shall have any liability to the Company for any
losses suffered due to the action or inaction of any agent or representative
retained by the Portfolio Manager, provided that such person was selected by the
Portfolio Manager with reasonable care irrespective of the reason for the
loss. The Portfolio Manager and the Portfolio Manager Parties may
consult with counsel and accountants in respect of the Company’s affairs and be
fully protected and justified in any action or inaction which is taken in good
faith and in accordance with the information, reports, statements, advice or
opinion provided by such counsel and/or accountants, provided that they were
selected with reasonable care and the matter consulted is reasonably believed by
such persons to be within such counsel’s or accountants’ professional or expert
competence. All investment and trading activity with respect to the
Assets shall be for the account and risk of the Company and, except as otherwise
provided herein, neither the Portfolio Manager nor any Portfolio Manager Party
shall incur any liability for investment or trading profits or losses resulting
therefrom, or any expenses related thereto.
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(b) Neither
the Portfolio Manager nor any of the Portfolio Manager Parties shall be liable
to the Company or any of its shareholders, their managers, members, officers,
directors, employees, shareholders or other applicable representatives or to
third parties for any taxes assessed upon or payable by any of them wheresoever
the same may be assessed or imposed, whether directly or
indirectly.
(c) Notwithstanding
any of the foregoing to the contrary, the provisions of this Section 9 shall not
be construed so as to relieve (or attempt to relieve) the Portfolio Manager of
any liability to the extent (but only to the extent) that such liability may not
be waived, modified or limited under applicable law, but shall be construed so
as to effectuate the provisions of this Section 9 to the fullest extent
permitted by law.
(d) Company Agreement to
Indemnify.
(i) The
Company shall indemnify, hold harmless, and defend the Portfolio Manager and the
Portfolio Manager Parties from and against any loss, liability, claim, demand,
damage, cost, and expense (including reasonable attorneys’ and accountants’ fees
and expenses) (collectively, “Losses”),
to which an indemnified party may become subject in respect of the Company
(including in connection with the defense or settlement of claims and in
connection with any administrative proceedings), arising out of or based upon
this Agreement or the Portfolio Manager’s activities on behalf of the Company;
provided that such Losses did not arise from the Portfolio Manager’s Bad
Acts.
(ii) Reasonable
and necessary expenses incurred by an indemnified party under this Section 9(b)
in defending a threatened or asserted claim or a threatened or pending action
shall be paid by the indemnifying party in advance of final disposition or
settlement of such matter, if and to the extent that the person on whose behalf
such expenses are paid shall agree in writing to reimburse the indemnifying
party in the event indemnification is not permitted hereunder upon final
disposition or settlement.
(e) Indemnity
Procedure. Promptly after receipt by an indemnified party
under Section 9(d) or (e) of notice of the commencement of an action or claim to
which either such Section may apply, the indemnified party shall notify the
indemnifying party in writing of the commencement of such action or claim if a
claim for indemnification in respect of such action or claim may be made against
the indemnifying party under either such Section; but the omission so to notify
the indemnifying party shall not relieve the indemnifying party from any
liability which the indemnifying party may have to the indemnified party under
either such Section (except where such omission shall have materially prejudiced
the indemnifying party) or otherwise. In case any such action or
claim shall be brought against an indemnified party and the indemnified party
shall notify the indemnifying party of the commencement of such action or claim,
the indemnifying party shall be entitled to participate in such action or claim
and, to the extent that the indemnifying party may desire, to assume the defense
of such action or claim with counsel selected by the indemnifying party and
approved by the indemnified party. After notice from the indemnifying
party to the indemnified party of the indemnifying party’s election so to assume
the defense of such action or claim, the indemnifying party shall not be liable
to the indemnified party for any legal, accounting, and other fees and expenses
subsequently incurred by the indemnified party in connection with the defense of
such action or claim other than reasonable costs of
investigation.
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Notwithstanding
any provision of this Section 9(e) to the contrary, if in any action or claim as
to which indemnity is or may be available an indemnified party shall determine
that its interests are or may be adverse, in whole or in part, to the interests
of the indemnifying party or that there may be legal defenses available to the
indemnified party which are or may be different from, in addition to, or
inconsistent with the defenses available to the indemnifying party, the
indemnified party may retain its own counsel in connection with such action or
claim, in which case the indemnified party shall be responsible for any legal,
accounting, and other fees and expenses reasonably incurred by or on behalf of
it in connection with investigating or defending such action or
claim. In no event shall an indemnifying party be liable for the fees
and expenses of more than one counsel for all indemnified parties in connection
with any one action or claim or in connection with separate but similar or
related actions or claims in the same jurisdiction arising out of the same
general allegations. An indemnifying party shall not be liable for a
settlement of any such action or claim effected without its written consent, but
if any such action or claim shall be settled with the written consent of an
indemnifying party or if there shall be a final judgment for the plaintiff in
any such action or claim, the indemnifying party shall indemnify, hold harmless,
and defend an indemnified party from and against any loss, liability, or expense
in accordance with this Section 9 by reason of such settlement or
judgment.
10. Representations
and Warranties.
(a) Of the Portfolio
Manager. The Portfolio Manager hereby represents and warrants
to the Company as follows:
(i) The
Portfolio Manager has full power and authority and is permitted by applicable
law to enter into and carry out its obligations under this Agreement and to
conduct its business as described in this Agreement.
(ii) The
performance of the obligations under this Agreement by the Portfolio Manager
will not conflict with, violate the terms of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, management or advisory
agreement, or other agreement or instrument to which the Portfolio Manager or
its employees or affiliates is a party or by which any such person is bound or
to which any of the property or assets of any such person is subject, or any
order, rule, law, regulation, or other legal requirement applicable to any such
person or to the property or assets of any such person.
(iii) The
Portfolio Manager has complied and will continue to comply with all laws, rules,
and regulations having application to its business, properties, and
assets. There are no actions, suits, proceedings, or investigations
pending or threatened in writing against the Portfolio Manager or its
principals, at law or in equity or before or by any federal, state, municipal,
or other governmental department, commission, board, bureau, agency, or
instrumentality, any self-regulatory organization, or any exchange that might be
material to an investor investing in the Company.
(iv) The
Portfolio Manager is duly organized and validly existing under the laws of the
state of its organization.
(v) The
foregoing representations and warranties shall be continuing during the term of
this Agreement and if at any time any event shall occur which could make any of
the foregoing materially incomplete or inaccurate, the Portfolio Manager
promptly shall notify the Company of the occurrence of such
event.
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(b) Of the
Company. The Company hereby represents and warrants to the
Portfolio Manager as follows:
(i) The
Company has full power and authority and is permitted by applicable law to enter
into and carry out its obligations under this Agreement and to own its
properties and conduct its business as described in this Agreement.
(ii) The
performance of the obligations under this Agreement by the Company will not
conflict with, violate the terms of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, management or advisory
agreement, or other agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or assets of the
Company is subject, or any order, rule, law, regulation, or other legal
requirement applicable to the Company or to the property or assets of the
Company.
(iii) The
Company has all required governmental and regulatory registrations and
memberships necessary to carry out its obligations under this
Agreement.
(iv) The
Company has complied and will continue to comply with all laws, rules, and
regulations having application to its business, properties, and
assets. There are no actions, suits, proceedings, or investigations
pending or threatened in writing against the Company, at law or in equity or
before or by any federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality, any self-regulatory
organization, or any exchange.
(v) The
Company is duly organized and validly existing under the laws of the Cayman
Islands.
(vi) The
foregoing representations and warranties shall be continuing during the term of
this Agreement and if at any time any event shall occur which could make any of
the foregoing incomplete or inaccurate, the Company shall promptly notify the
Portfolio Manager of the occurrence of such event.
11. Confidential
Information.
The
Company acknowledges and agrees that during the course of the Portfolio
Manager’s association with the Company, the Company may receive and have access
to certain information, data, notes, analyses, records and materials of the
Portfolio Manager, including, without limitation, information concerning the
business affairs, portfolios and investment strategies of the Portfolio Manager,
or its clients, the Portfolio Manager’s research, systems used by the Portfolio
Manager or provided to clients for the purposes of investing, portfolio
evaluation and monitoring, pricing and valuing interests in investment pools,
securities and other financial products, and accounting back-office functions
(the “Confidential
Information”). The Company shall not disclose, copy or permit
the disclosure of the Confidential Information to third parties, including
without limitation to its shareholders, without the Portfolio Manager’s prior
written consent, except as required by law, a court of competent jurisdiction or
any self-regulatory organization. Immediately upon termination of
this Agreement, the Company promptly shall return to the Portfolio Manager any
and all Confidential Information, including all copies and reproductions
thereof, in the Company’s possession and control or in the possession or control
of any employee or agent of the Company.
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The
Parties agree that money damages would be an inadequate remedy for a breach of
this Section 11 and in the event of a breach or threatened breach of this
Section 11 by the Company, the Portfolio Manager or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply for
specific performance and/or injunctive or other relief in order to enforce, or
prevent any violations of, such provisions, without posting a bond or other
security.
12. Miscellaneous.
(a) Independent
Contractor. The Portfolio Manager shall be deemed to be an
independent contractor of the Company for purposes of this Agreement and, unless
otherwise expressly provided herein or with the prior written authorization of
the Company, the Portfolio Manager shall have no authority to act for or
represent the Company, its affiliates, officers, directors or employees in any
way and shall not otherwise be deemed to be an agent of the
Company. Nothing contained herein shall create or constitute the
Portfolio Manager or the Company as members of any partnership, joint venture,
association, syndicate, unincorporated business, or other separate entity, nor
shall this Agreement be deemed to confer on any of them any express, implied, or
apparent authority to incur any obligation or liability on behalf of any other,
except as specifically set forth in this Agreement.
(b) Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties with respect to the matters referred to herein, and no other
agreement, verbal or otherwise, shall be binding upon the Parties hereto with
respect to the subject matter herein.
(c) Assignment. Neither
Party to this Agreement may assign (within the meaning of the Investment
Advisers Act of 1940, as amended) or delegate, by operation of law or otherwise,
all or any portion of its rights, obligations or liabilities under this
Agreement without the prior written consent of the other Party to this
Agreement. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and the successors and permitted assigns of each
of them, and no other person (except as otherwise provided herein) shall have
any right or obligation under this Agreement.
(d) Amendment;
Waiver. This Agreement shall not be amended or modified except
by a writing signed by the Parties hereto. No failure or delay on the
part of either Party hereto in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. Any waiver
granted hereunder must be in writing and shall be valid only in the specific
instance in which given.
(e) 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, rule, 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.
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(f) 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, or
facsimile 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 Company:
WFM
Holdings Ltd.
C/X
Xxxxxx Corporate Services Limited
X.X. Xxx
000, Xxxxxx Xxxxx
Xxxxx
Xxxxxx, XX 0-0000
Cayman
Islands
with a
copy to:
Xxxxxxx
X. Xxxxx, Esq.
Xxxxxxx
Xxxx LLP
0000
Xxxxxxxx, 00xx
Xxxxx
|
Xxx
Xxxx, Xxx Xxxx 00000
|
if to the
Portfolio Manager:
Weston
Capital Asset Management LLC
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
with a
copy to:
Xxxx X.
Xxxxx, Esq.
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
|
Xxx
Xxxx, Xxx Xxxx 00000
|
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the law of the State of New York, U.S.A., excluding choice of
law and conflicts of law provisions thereof (other than Section 5-1401 and
Section 5-1402 of the New York General Obligations Law).
(h) Any
legal action or proceeding with respect to this Agreement may be brought in the
courts of the State of New York sitting in New York City, the courts of the
United States for the Southern District of New York, and, by execution and
delivery of this Agreement, each of the Parties hereto hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts. The
Company hereby irrevocably designates, appoints and empowers CT Corporation
Services (the “Process
Agent”) as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents which may be served in
any such action or proceeding. The Parties further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such Party at its address set forth in this
Agreement, such service to become effective 30 days after such mailing. Nothing
herein shall affect the right of either Party to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the other Party in any other jurisdiction. Each Party hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement brought in the courts referred to above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been brought in an
inconvenient forum. Each Party agrees, to the extent permitted by applicable
law, that in any legal action or proceeding arising out of or in connection with
this Agreement (the “Proceedings”) anywhere (whether for an injunction, specific
performance, damages or otherwise), no sovereign immunity (to the extent that it
may at any time exist) from those Proceedings, from attachment (whether in aid
of execution, before judgment or otherwise), or from judgment shall be claimed
by it or on its behalf or with respect to its property or
assets.
11
(i) Headings. Headings
to sections and subsections in this Agreement are for the convenience of the
Parties only and are not intended to be a part of or to affect the meaning or
interpretation hereof.
(j) No Third Party
Beneficiaries. This Agreement is not intended and shall not
convey any rights to any persons not party to this Agreement.
(k) Survival. Sections
5, 7, 8, 9, 11 and 12 shall survive the termination of this
Agreement.
(l) 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.
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IN WITNESS WHEREOF, this
Agreement has been executed for and on behalf of the undersigned as of the day
and year first written above.
WFM
HOLDINGS LTD.
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||
By:
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/s/ Xxxx X. Xxxxx
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Name:
Xxxx X. Xxxxx
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||
Title:
President
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||
WESTON
CAPITAL ASSET MANAGEMENT LLC
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By:
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/s/ Xxxxx Xxxxxxx
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Name:
Xxxxx Xxxxxxx
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||
Title:
Manager
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13