Exhibit (g)
INVESTMENT ADVISORY AGREEMENT
by and between
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY MASTER FUND,
LLC
AND
CSFB ALTERNATIVE CAPITAL, INC.
AGREEMENT made as of the 28th day of March, 2005 between CSFB Alternative
Capital, Inc., a corporation organized under the laws of the State of Delaware
(the "Adviser"), and CSFB Alternative Capital Long/Short Equity Master Fund,
LLC, a limited liability company organized under the laws of the State of
Delaware (the "Company").
RECITALS
WHEREAS, the Company is engaged in business as a closed-end,
non-diversified, management investment company and is so registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Adviser is engaged in the business of rendering investment
management and advisory services and is registered under the Investment
Advisers Act of 1940, as amended (the "Advisers Act"); and
WHEREAS, the Company desires to retain the Adviser to render management
and investment advisory services in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, the Adviser desires to be retained to perform services on said
terms and conditions;
NOW, THEREFORE, WITNESSETH: That it is hereby agreed between the parties
hereto as follows:
1. Appointment of the Adviser.
The Board of Managers of the Company (collectively the "Board" and
individually a "Manager") hereby appoints the Adviser to act as manager and
investment adviser for the Company for the period and on the terms herein set
forth. The Adviser accepts such appointment and agrees to render the services
herein set forth, for the compensation herein provided.
2. Duties and Responsibilities of the Adviser.
(a) Investment Advisory Services.
The Adviser shall:
(i) develop, implement and supervise a continuous investment program for
the Company in a manner consistent with the investment objectives and
policies of the Company;
(ii) provide advice and recommendations to the Company with respect to
its investments, investment policies and purchases and sales of securities;
(iii) arrange for the purchase and sale of such securities with the
Company's administrator;
(iv) specifically allocate Company assets among hedge fund investments
and cash and other securities and regularly evaluate each hedge fund
investment to determine whether its investment program is consistent with
the Company's investment objective, and regularly evaluate whether each
hedge fund investment's performance and other criteria the Adviser deems
applicable are satisfactory;
(v) specifically reallocate Company assets among hedge fund investments,
redeem the Company's investments with hedge funds and select additional
hedge fund investments subject in each case to the ultimate supervision of,
and any polices established by, the Board; and
(vi) take such further action as it shall deem necessary or appropriate
in its capacity as Adviser.
The Adviser is authorized, subject to the approval of the Board and
interest holders of the Company (the "Interest holders"), to retain one of its
affiliates to provide any or all of the investment advisory services required to
be provided to the Company or to assist the Adviser in providing these services,
subject to the requirement that the Adviser supervise the rendering of any such
services to the Company by its affiliates.
(b) Reports to the Company.
The Adviser shall furnish to or place at the disposal of the Company such
information, reports, evaluations, analyses and opinions as the Company may, at
any time or from time to time, reasonably request or as the Adviser may deem
helpful to the Company.
(c) Administration Services, Personnel, Office Space, and Facilities of
Adviser.
The Adviser, at its own expense, shall furnish or provide and pay the cost
of: accounting and legal support services; provision of office space, personnel,
telephone and utilities; general supervision of the entities which are retained
by the Company to provide accounting services, investor services and custody
services to the Company; assisting in the drafting and updating of the Company's
registration statement, including its prospectus and statement of additional
information; reviewing, approving and assisting in the preparation of regulatory
filings with the Securities and Exchange Commission (the "Commission") and state
securities regulators and other Federal and state regulatory authorities;
preparing reports to and other informational materials for members of the
Company ("Members") and assisting in the preparation of proxy statements and
other Member communications; monitoring the Company's compliance with Federal
and state regulatory requirements (other than those relating to investment
compliance); reviewing accounting records and financial reports of the Company,
assisting with the preparation of the financial reports of the Company and
acting as liaison with the Company's administrator, legal counsel and
independent auditors; assisting in the preparation and filing of Company tax
returns; assisting, coordinating and organizing meetings of the Board and
meetings of Members as may be called by the Board from time to time; preparing
materials and reports for use in connection with meetings of the Board;
maintaining and preserving those books and records of the Company not otherwise
required to be maintained by the Company's other administrator or custodian;
reviewing and arranging for payment of the expenses of the Company; assisting
the Company in conducting periodic repurchases of interests in the Company
("Interests"); and such other services that the Company and Adviser shall agree
to from time to time, as the Adviser requires in the performance of its
investment advisory and other obligations under this Agreement.
3. Allocation of Expenses.
(a) Expenses Paid by Adviser.
The Adviser shall bear the cost of rendering the investment management and
supervisory services.
(b) Expenses Paid by the Company.
The Company assumes and shall pay or cause to be paid all other expenses of
the Company, including without limitation: all costs and expenses directly
related to portfolio transactions and positions for the Company's account,
including, but not limited to, brokerage commissions; redemption fees; fees paid
to the underlying hedge fund management including management and performance
fees, if any; research fees, interest and commitment fees on loans and debit
balances, borrowing charges on securities sold short, borrowing charges on
amounts borrowed to pay redemptions, dividends on securities sold but not yet
purchased, custodial fees, margin fees, transfer taxes and premiums, taxes
withheld on foreign dividends and indirect expenses from investments in
portfolio securities; all costs and expenses associated with the registration of
the Company under, and compliance with, any applicable federal or state
laws; attorneys' fees and disbursements associated with updating the Company's
registration statement, prospectus, statement of additional information and
other offering related documents; Board compensation; the costs and expenses of
holding meetings of the Board and any meetings of Interest holders of the
Company, including legal costs associated with the preparation and filing of
proxy materials; the fees and disbursements of the Company's counsel, legal
counsel to the Company, legal counsel to the Board Managers who are not
"interested persons" (as that term is defined in the ▇▇▇▇ ▇▇▇) of the Company or
the Adviser ("Independent Managers"), independent accounts for the Company and
other consultants and professionals engaged on behalf of the Company; accounting
and auditing expenses; the management and services fees paid by the Company to
the Adviser; the fees payable to various service providers including but not
limited to Company's administrator, custodian, auditors and escrow agent
pursuant to the Company's agreements with those providers; the costs of a
fidelity bond and any liability insurance obtained on behalf of the Company, the
Board, its officers, or the Adviser; all costs and expense of preparing, setting
in type, printing and distributing reports and other communications to the
Interest holders of the Company; all expenses of computing the Company's net
asset value, including any equipment or services obtained for these purposes;
all charges for equipment or services used in communicating information
regarding the Company's transactions among the Adviser and any custodian or
other agent engaged by the Company; any extraordinary expenses it may incur,
including any litigation expenses, subject to Board approval; and such other
types of expenses as may be approved from time to time by the Board.
4. Compensation.
(a) Management Fee.
For the services and facilities to be provided by the Adviser as
provided in Paragraphs 2 and 3(a) hereof, the Company shall pay to the Adviser a
fee computed at the annual rate of 1.25% of the aggregate value of its
outstanding Interests determined as of the last day of each month and payable
each calendar quarter before any repurchases of Interests (approximately 0.3125%
per quarter). The management fee shall be paid promptly after the end of each
such quarter.
(b) Proration.
In the event this Agreement is terminated as of a date other than the last
day of any quarter, the Company shall pay the Adviser a pro rata portion of the
amount that the Company would have been required to pay, if any, had this
Agreement remained in effect for the full quarter.
5. Company Transactions.
In connection with the management of the investment and reinvestment of the
assets of the Company, the Adviser is authorized to select broker-dealers that
will execute purchase and sale transactions for the Company and is directed to
use its best
efforts to seek the best overall terms available. In assessing the best overall
terms available for any transaction, the Adviser shall consider all factors it
deems relevant, including the breadth of the market and the price of the
security, the financial condition and execution capability of the broker-dealer,
and the reasonableness of the terms and conditions, if any, with respect to the
Company's investment.
6. Ownership of Records.
All records required to be maintained and preserved by the Company pursuant
to the provisions of rules or regulations of the SEC under Section 31(a) of the
1940 Act and maintained and preserved by the Adviser on behalf of the Company
are the property of the Company and will be surrendered by the Adviser promptly
upon request by the Company.
7. Relations with the Company.
Subject to and in accordance with the Limited Liability Company Agreements
("LLC Agreements") of the Company, it is understood that Board managers,
Interest holders and agents of the Company are or may be interested in the
Adviser (or any successor thereof) as managers, Interest holders or otherwise,
that managers, Interest holders or agents of the Adviser are or may be
interested in the Company as Board managers or Interest holders or otherwise,
that the Adviser (or any such successor) is or may be interested in the Company
as an Interest holder or otherwise and that the effect of any such Interests
shall be governed by such LLC Agreements.
8. Liability of the Adviser.
In the absence of (a) willful misfeasance, bad faith or gross negligence on
the part of the Adviser in performance of its obligations and duties hereunder,
(b) reckless disregard by the Adviser of its obligations and duties hereunder,
or (c) a loss resulting from a breach of fiduciary duty with respect to the
receipt of compensation for services (in which case any award of damages shall
be limited to the period and the amount set forth in Section 36(b)(3) of the
1940 Act), the Adviser shall not be subject to any liability whatsoever to the
Company, or to any member of the Company (each, a "Member," and collectively,
the "Members") for any error of judgment, mistake of law or any other act or
omission in the course of, or connected with, rendering services hereunder
including, without limitation, for any losses that may be sustained in
connection with the purchase, holding, redemption or sale of any security on
behalf of the Company.
9. Indemnification
(a) To the fullest extent permitted by law, the Company shall, subject to
Section 9(c) of this Agreement, indemnify the Adviser (including for this
purpose each officer, director, partner, principal, employee or agent of, or any
person who controls, is controlled by or is under common control with, the
Adviser, and their respective
executors, heirs, assigns, successors or other legal representatives) (each such
person being referred to as an "indemnitee") against all losses, claims,
damages, liabilities, costs and expenses arising by reason of being or having
been Adviser to the Company, or the past or present performance of services to
the Company in accordance with this Agreement by the indemnitee, except to the
extent that the loss, claim, damage, liability, cost or expense has been finally
determined in a judicial decision on the merits from which no further appeal may
be taken in any action, suit, investigation or other proceeding to have been
incurred or suffered by the indemnitee by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee's office. These losses, claims, damages, liabilities,
costs and expenses include, but are not limited to, amounts paid in satisfaction
of judgments, in compromise, or as fines or penalties, and counsel fees and
expenses, incurred in connection with the defense or disposition of any action,
suit, investigation or other proceeding, whether civil or criminal, before any
judicial, arbitral, administrative or legislative body, in which the indemnitee
may be or may have been involved as a party or otherwise, or with which such
indemnitee may be or may have been threatened, while in office or thereafter.
The rights of indemnification provided under this Section 9 are not to be
construed so as to provide for indemnification of an indemnitee for any
liability (including liability under U.S. federal securities laws which, under
certain circumstances, impose liability even on persons that act in good faith)
to the extent (but only to the extent) that indemnification would be in
violation of applicable law, but shall be construed so as to effectuate the
applicable provisions of this Section 9.
(b) Expenses, including counsel fees and expenses, incurred by any
indemnitee (but excluding amounts paid in satisfaction of judgments, in
compromise, or as fines or penalties) may be paid from time to time by the
Company in advance of the final disposition of any action, suit, investigation
or other proceeding upon receipt of an undertaking by or on behalf of the
indemnitee to repay to the Company amounts paid if a determination is made that
indemnification of the expenses is not authorized under Section 9(a) of this
Agreement, so long as (i) the indemnitee provides security for the undertaking,
(ii) the Company is insured by or on behalf of the indemnitee against losses
arising by reason of the indemnitee's failure to fulfill his, her or its
undertaking, or (iii) a majority of the Independent Managers of the Company
(excluding any Manager who is or has been a party to any other action, suit,
investigation or other proceeding involving claims similar to those involved in
the action, suit, investigation or proceeding giving rise to a claim for
advancement of expenses under this Agreement) or independent legal counsel in a
written opinion determines based on a review of readily available facts (as
opposed to a full trial-type inquiry) that reason exists to believe that the
indemnitee ultimately shall be entitled to indemnification.
(c) As to the disposition of any action, suit, investigation or other
proceeding (whether by a compromise payment, pursuant to a consent decree or
otherwise) without an adjudication or a decision on the merits by a court, or by
any other body before which the proceeding has been brought, that an indemnitee
is liable to the Company or its Members by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee's office,
indemnification shall be provided in accordance with Section 9(a) of this
Agreement if (i) approved as in the best interests of the Company by a majority
of the Independent Managers (excluding any Manager who is or has been a party to
any other action, suit, investigation or other proceeding involving claims
similar to those involved in the action, suit, investigation or proceeding
giving rise to a claim for indemnification under this Agreement) upon a
determination based upon a review of readily available facts (as opposed to a
full trial-type inquiry) that the indemnitee acted in good faith and in the
reasonable belief that the actions were in the best interests of the Company and
that the indemnitee is not liable to the Company or its Members by reason of
willful misfeasance, bad faith, gross negligence, or reckless disregard of the
duties involved in the conduct of the indemnitee's office, or (ii) the Managers
secure a written opinion of independent legal counsel based upon a review of
readily available facts (as opposed to a full trial-type inquiry) to the effect
that indemnification would not protect the indemnitee against any liability to
the Company or its Members to which the indemnitee would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of the indemnitee's office.
(d) Any indemnification or advancement of expenses made in accordance with
this Section 9 shall not prevent the recovery from any indemnitee of any amount
if the indemnitee subsequently is determined in a final judicial decision on the
merits in any action, suit, investigation or proceeding involving the liability
or expense that gave rise to the indemnification or advancement of expenses to
be liable to the Company or its Members by reason of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of the indemnitee's office. In any suit brought by an indemnitee to
enforce a right to indemnification under this Section 9 it shall be a defense
that, and in any suit in the name of the Company to recover any indemnification
or advancement of expenses made in accordance with this Section 9 the Company
shall be entitled to recover the expenses upon a final adjudication from which
no further right of appeal may be taken that, the indemnitee has not met the
applicable standard of conduct described in this Section 9. In any suit brought
to enforce a right to indemnification or to recover any indemnification or
advancement of expenses made in accordance with this Section 9, the burden of
proving that the indemnitee is not entitled to be indemnified, or to any
indemnification or advancement of expenses, under this Section 9 shall be on the
Company (or on any Member acting derivatively or otherwise on behalf of the
Company or its Members).
(e) An indemnitee may not satisfy any right of indemnification or
advancement of expenses granted in this Section 9 or to which he, she or it may
otherwise be entitled except out of the assets of the Company, and no Member
shall be personally liable with respect to any such claim for indemnification or
advancement of expenses.
(f) The rights of indemnification provided in this Section 9 shall not be
exclusive of or affect any other rights to which any person may be entitled by
contract or otherwise under law. Nothing contained in this Section 9 shall
affect the power of the Company to purchase and maintain liability insurance on
behalf of the Adviser or any indemnitee.
10. Duration and Termination of this Agreement.
(a) Duration.
This Agreement shall be executed and become effective on the first date
upon which the Agreement shall have been approved by a majority of the
outstanding voting interest as the term is defined in the ▇▇▇▇ ▇▇▇) of the
Company. Unless terminated as herein provided, this Agreement shall remain in
full force and effect through March 28, 2007 and shall continue in full force
and effect for periods of one year thereafter so long as such continuance is
approved at least annually by either, the Board, including a majority of the
Independent Managers (who are not a party to this) cast in person at a meeting
called for the purpose of voting on such approval or by a vote of a majority of
the outstanding voting interests (as defined in the ▇▇▇▇ ▇▇▇) of the Company.
Any approval of this Agreement by the holders of a majority of the
outstanding interests (as defined in the ▇▇▇▇ ▇▇▇) of the Company shall be
effective to continue this Agreement notwithstanding (a) that this Agreement has
not been approved by the holders of a majority of the outstanding interests of
the Company affected thereby, and (b) that this Agreement has not been approved
by the vote of a majority of the outstanding interests of the Company, unless
such approval shall be required by any other applicable law or otherwise.
(b) Termination.
This Agreement may be terminated at any time, without payment of any
penalty, by vote of the Board or by vote of a majority of the outstanding
interests (as defined in the ▇▇▇▇ ▇▇▇) of the Company or by the Adviser, on
sixty (60) days' written notice to the other party.
(c) Automatic Termination.
This Agreement shall automatically terminate in the event of its
"assignment" (as defined in the 1940 Act and rules thereunder) if consent to
such assignment is not obtained in accordance with subsection (d).
(d) Transfer or Assignment
This Agreement may not be transferred, assigned, sold or in any manner
hypothecated or pledged without the affirmative vote or written consent of the
holders of a majority of the outstanding voting interests of the Company or
series (if any).
11. Services Not Exclusive.
The services of the Adviser to the Company hereunder are not to be deemed
exclusive, and the Adviser shall be free to render similar services to others so
long as its services hereunder are not impaired thereby.
12. Use of Names.
The Adviser may act as investment adviser for any other person, firm or
corporation and use the names "CSFB", "CSFB Alternative Capital", "Credit Suisse
First Boston", "Credit Suisse", or "CS" in connection with other investment
companies, registered or unregistered, for which it or its affiliates may act as
investment adviser or general distributor. If the Adviser shall no longer act as
investment adviser of the Company, the Adviser may withdraw the right of the
Company to use the names "CSFB", "CSFB Alternative Capital", "Credit Suisse
First Boston", "Credit Suisse", or "CS" as part of its name, or in any other
manner.
13. Miscellaneous.
(a) Amendment of 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 whom enforcement of the change, waiver, discharge or termination is
sought. No material amendment of this Agreement shall be effective until
approved in the manner required by the 1940 Act and rules thereunder or in
accordance with exemptive or other relief granted by the SEC or its staff.
(b) Severability.
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.
(c) 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.
(d) Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(e) Headings.
The captions in this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
(f) Entire Agreement.
This Agreement states the entire agreement of the parties hereto, and is
intended to be the complete and exclusive statement of the terms hereof. It may
not be added to or changed orally, and may not be modified or rescinded except
by a writing signed by the parties hereto and in accordance with the 1940 Act.
(g) Notices.
Any notice under this Agreement shall be given in writing and shall be
deemed to have been duly given when delivered by hand, on the date indicated as
the date of receipt on a return receipt, or at a time of receipt if sent to the
other party at the principal office of such party or by regular mail,
commercially delivered.
(h) Liability of the Board of Managers and Interest Holders.
Any obligations of the Company under this Agreement are not binding upon
the Board of Managers or the Company's Interest holders individually but are
binding only upon the assets and property of the Company. The Adviser represents
that it has notice of the provisions of the Limited Liability Company Agreement
of the Company disclaiming Member and Manager liability for acts and obligations
of the Company.
(i) Form ADV; Company Changes.
The Company acknowledges receiving Part II of the Adviser's Form ADV. The
Adviser covenants that it will notify the Company of any changes in the
membership of its officers within a reasonable time after such change.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
CSFB Alternative Capital Long/Short Equity Master Fund, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
CSFB Alternative Capital, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Managing Director