EXHIBIT (g)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of October 11, 2000 between PW JUNIPER CROSSOVER
FUND, L.L.C., a Delaware limited liability company (the "Fund"), and PW Juniper
management, l.l.c. (the "Adviser"), a Delaware limited liability company
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended.
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as a closed-end management investment company
and desires to retain the Adviser as investment adviser to furnish certain
investment advisory and portfolio management services to the Fund, and the
Adviser is willing to furnish these services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Fund hereby appoints the Adviser as investment
adviser of the Fund for the period and on the terms set forth in this Agreement.
The Adviser accepts this appointment and agrees to render the services herein
set forth, for the compensation herein described.
2. DUTIES AS INVESTMENT ADVISER.
(a) Subject to the supervision of the Fund's Board of Directors (the
"Board"), the Adviser will have full discretion and authority (i) to manage the
assets and liabilities of the Fund and (ii) to manage the day-to-day business
and affairs of the Fund. In furtherance of and subject to the foregoing, the
Adviser will have full power and authority on behalf of the Fund, among other
matters:
(1) to purchase, sell, exchange, trade and otherwise deal in and with
securities and other property of the Fund and to loan securities of
the Fund;
(2) to open, maintain and close accounts with brokers and dealers, to
make all decisions relating to the manner, method and timing of
securities and other investment transactions, 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 Adviser considers appropriate, and to
grant limited discretionary authorization to such persons with respect
to price, time and other terms of investment and trading transactions,
subject to Paragraph 2(b);
(3) to borrow from banks or other financial institutions and to pledge
Fund assets as collateral therefor, to trade on margin, to exercise or
refrain from exercising all rights regarding the Fund's investments,
and to instruct custodians regarding the settlement of transactions,
the disbursement of payments to the Fund's investors (the "Members")
with respect to repurchases of interests in the Fund ("Interests") and
the payment of Fund expenses, including those relating to the
organization and registration of the Fund;
(4) to call and conduct meetings of Members at the Fund's principal
office or elsewhere as it may determine and to assist the Board in
calling and conducting meetings of the Board;
(5) to engage and terminate such attorneys, accountants and other
professional advisers and consultants as the Adviser may deem
necessary or advisable in connection with the affairs of the Fund or
as may be directed by the Board;
(6) to engage and terminate the services of persons to assist the
Adviser in providing, or to provide under the Adviser's control and
supervision, advice and management to the Fund at the expense of the
Adviser and to terminate such services;
(7) as directed by the Board, to commence, defend and conclude any
action, suit, investigation or other proceeding that pertains to the
Fund or any assets of the Fund;
(8) if directed by the Board, to arrange for the purchase of (A) one
or more "key man" insurance policies on the life of any principal of a
member of the Adviser, the benefits of which are payable to the Fund,
or (B) any insurance covering the potential liabilities of the Fund or
relating to the performance of the Board or the Adviser, or any of
their principals, directors, officers, members, employees and agents;
and
(9) to execute, deliver and perform such contracts, agreements and
other undertakings, and to engage in such activities and transactions
as are, in the opinion of the Adviser, necessary and appropriate for
the conduct of the business of the Fund without the act, vote or
approval of any other Members or person.
(b) The Adviser, in its discretion, may use brokers who provide the
Fund with research, analysis, advice and similar services to execute portfolio
transactions on behalf of the Fund, and the Adviser may pay to those brokers in
return for brokerage and research services a higher commission than may be
charged by other brokers, subject to the Adviser's good faith determination that
such commission is reasonable in terms either of the particular transaction or
of the overall responsibility of the Adviser to the Fund and its other clients
and that the total commissions paid by the Fund will be reasonable in relation
to the benefits to the Fund over the long term. Whenever the Adviser
simultaneously places orders to purchase or sell the same security on behalf of
the Fund and one or more other accounts advised by the Adviser, such orders will
be allocated as to price and amount among all such accounts in a manner believed
to be equitable to each account. The Fund recognizes that in some cases this
procedure may adversely affect the results obtained for the Fund.
(c) The Fund hereby authorizes the Adviser and any entity or person
associated with the Adviser which is a member of a national securities exchange
to effect any transaction on such exchange for the account of the Fund, which
transaction is permitted by Section 11(a) of the Securities Exchange Act of
1934, as amended, and the Fund hereby consents to the retention of compensation
by the Adviser or any person or entity associated with the Adviser.
3. SERVICES NOT EXCLUSIVE. The services furnished by the Adviser
hereunder are not to be deemed exclusive and the Adviser shall be free to
furnish similar services to others. Nothing in this Agreement shall limit or
restrict the right of any director, officer or employee of the Adviser or its
affiliates, who also may be a Director, officer or employee of the Fund, 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.
4. EXPENSES.
(a) During the term of this Agreement, the Fund will bear all expenses
incurred in the business of the Fund other than those not specifically assumed
by the Adviser. Expenses to be borne by the Fund will include, but are not
limited to, the following:
(1) all costs and expenses directly related to portfolio transactions
and positions for the Fund's account, including, but not limited
to, brokerage commissions, research fees, interest and commitment
fees on loans and debit balances, borrowing charges on securities
sold short, dividends on securities sold short but not yet
purchased, custodial fees, shareholder servicing fees, margin
fees, transfer taxes and premiums and taxes withheld on foreign
dividends;
(2) all costs and expenses associated with the organization and
registration of the Fund, certain offering costs and the costs of
compliance with any applicable Federal or state laws;
(3) the costs and expenses of holding any meetings of any Members
that are regularly scheduled, permitted or required to be held
under the terms of the Fund's Limited Liability Company Agreement
(the "LLC Agreement"), the 1940 Act or other applicable law;
(4) the fees and disbursements of any attorneys, accountants,
auditors and other consultants and professionals engaged on
behalf of the Fund, including all travel-related expenses and
other costs associated with due diligence performed, in
connection with the analysis, purchase and sale of companies
whose private securities may be purchased by the Fund;
(5) the fees of custodians and other persons providing administrative
services to the Fund;
(6) the costs of a fidelity bond and any liability insurance obtained
on behalf of the Fund, the Adviser or its affiliates, or the
Directors;
(7) all costs and expenses of preparing, setting in type, printing
and distributing reports and other communications to Members;
(8) all expenses of computing the Fund's net asset value, including
any equipment or services obtained for the purpose of valuing the
Fund's investment portfolio, including appraisal and valuation
services provided by third parties;
(9) all charges for equipment or services used for communications
between the Fund and any custodian, or other agent engaged by the
Fund; and
(10) such other types of expenses as may be approved from time to time
by the Board.
(b) The payment or assumption by the Adviser of any expenses of the
Fund that the Adviser is not required by this Agreement to pay or assume shall
not obligate the Adviser to pay or assume the same or any similar expense of the
Fund on any subsequent occasion.
5. COMPENSATION. As full compensation for the services provided to the
Fund and the expenses assumed by the Adviser under this Agreement, the Adviser
shall be entitled to be the Special Advisory Member of the Fund pursuant to the
terms of the LLC Agreement and to receive an incentive allocation in accordance
with the terms and conditions of Section 5.8 of the LLC Agreement.
6. LIMITATION OF LIABILITY OF THE ADVISER. The Adviser shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Fund or any Members in connection with the matters to which this Agreement
relates, except to the extent that such a loss results from willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement. Any person, even though also an officer, director, employee, or agent
of the Adviser or its affiliates, 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 with respect to any business of the Fund, to be rendering such
service to or acting solely for the Fund and not as an officer, director,
employee, or agent or one under the control or direction of the Adviser even
though compensated by it.
7. INDEMNIFICATION.
(a) The Fund will indemnify the Adviser and its affiliates, and each
of their members, directors, officers and employees and any of their affiliated
persons, 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 in respect of
the Fund, except those resulting from the willful malfeasance, bad faith or
gross negligence of an Indemnified Person or the Indemnified Person's reckless
disregard of such duties and, in the case of criminal proceedings, unless such
Indemnified Person had reasonable cause to believe its actions unlawful
(collectively, "disabling conduct"). Indemnification shall be made following:
(i) a final decision on the merits by a court or other body before whom 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 Directors 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
reasonable attorneys' fees and other costs and expenses incurred in connection
with defense of any action or proceeding arising out of such performance or
non-performance. The Adviser agrees, and each other Indemnified Person will be
required to agree as a condition to any such advance, that if one of the
foregoing parties receives any such advance, the party will reimburse the Fund
for such fees, costs and expenses to the extent that it shall be determined that
the party was not entitled to indemnification under this Paragraph 7. The rights
of indemnification provided hereunder shall not be exclusive of or affect any
other rights to which any person may be entitled by contract or otherwise under
law.
(b) Notwithstanding any of the foregoing, the provisions of this
Paragraph 7 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
7 to the fullest extent permitted by law.
8. DURATION AND TERMINATION.
(a) This Agreement will become effective upon the date hereof,
provided that this Agreement will not take effect unless it has first been
approved (i) by a vote of a majority of those Directors who are not parties to
this Agreement or interested persons of any such party, cast in person at a
meeting called for the purpose of voting on such approval, and (ii) by vote of a
majority of the outstanding voting securities of the Fund.
(b) Unless sooner terminated as provided herein, this Agreement shall
continue in effect for two years from the date hereof. Thereafter, if not
terminated, this Agreement shall continue automatically for successive one-year
periods, provided that such continuance is specifically approved at least
annually (i) by a vote of a majority of those Directors who are not parties to
this Agreement or interested persons of any such party, cast in person at a
meeting called for the purpose of voting on such approval, and (ii) by the Board
or by vote of a majority of the outstanding voting securities of the Fund.
(c) Notwithstanding the foregoing, this Agreement may be terminated at
any time, without the payment of any penalty, by vote of the Board or by a vote
of a majority of the Fund's outstanding voting securities on 60 days' written
notice to the Adviser or by the Adviser at any time, without the payment of any
penalty, on 60 days' written notice to the Fund. This Agreement will
automatically terminate in the event of its assignment.
9. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
10. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws principles thereof, and in accordance with the 1940 Act. To the extent
that the applicable laws of the State of New York conflict with the applicable
provisions of the 1940 Act, the latter shall control.
11. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"affiliated person," "interested person," "assignment," "broker," "investment
adviser," "national securities exchange," "sell" and "security" shall have the
same meaning as such terms have in the 1940 Act, subject to such exemption as
may be granted by the Securities and Exchange Commission by any rule, regulation
or order. Where the effect of a requirement of the 1940 Act reflected in any
provision of this contract is relaxed by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or general application,
such provision shall be deemed to incorporate the effect of such rule,
regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated as of the day and year first above
written.
PW JUNIPER MANAGEMENT, L.L.C.
By: /S/ DANIEL ARCHETTI
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PW JUNIPER CROSSOVER FUND, L.L.C.
By: /S/ DANIEL ARCHETTI
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