Exhibit 10.2
TRADING ADVISOR AGREEMENT
This trading advisor agreement ("Agreement"), is made and entered
into effective as of the 1st day of April 2005 by and among MAN-AHL
DIVERSIFIED I, L.P., a Delaware limited partnership (the "Fund"), MAN
INVESTMENTS (USA) CORP., a Delaware (USA) corporation (the "General Partner")
and MAN-AHL (USA) LIMITED, a United Kingdom corporation (the "Trading
Advisor"). Capitalized and other defined terms used in this Agreement and not
otherwise expressly defined herein shall have the same respective meanings as
are set forth in the current private placement memorandum of the Fund,
including all exhibits thereto, as the same may be amended or supplemented
from time to time (the "Memorandum").
W I T N E S S E T H:
WHEREAS, the Fund seeks high medium term capital growth, independent
of the movement of the stock and bond markets, through the speculative
trading, directly and indirectly, in commodities, futures contracts, forward
contracts, swap transactions, options on the foregoing, other derivative
instruments and hybrid instruments, and other instruments and investments, in
each case of every kind and character, traded on United States and non-United
States exchanges and markets (including the interbank and over-the-counter
markets) (sometimes collectively referred to as "futures"), and securities
including, but not limited to, equity securities, limited partnership
interests, general partnership interests, membership interests, fixed-income
securities, notes, debentures, convertible securities, depositary receipts,
options (including without limitation, listed and over-the-counter options and
the writing of options, whether or not covered), rights, warrants, mutual fund
shares and other securities (sometime collectively referred to as
"securities"); and
WHEREAS, the Fund is pursuing its investment objective through an
investment in a limited partnership interest in Man-AHL Diversified Trading
Company L.P., a Delaware limited partnership formed in November 1997 ("Trading
Company"), of which the General Partner acts as the general partner and the
Trading Advisor acts as the trading advisor; and
WHEREAS, the General Partner desires to appoint the Trading Advisor
as the trading advisor of the Fund, and the Trading Advisor desires to accept
such appointment as the trading advisor of the Fund; and
WHEREAS, the Fund, the General Partner and the Trading Advisor wish
to enter into this Agreement in order to set forth the terms and conditions
upon which the Trading Advisor will implement its trading strategies on behalf
of the Fund.
NOW, THEREFORE, in consideration of the premises and mutual promises
and agreements set forth herein, the parties hereto do hereby agree as
follows:
1. Appointment; Duties of the Trading Advisor
(a) The General Partner hereby appoints the Trading Advisor as the
trading advisor of the Fund, and the Trading Advisor accepts such appointment,
as the trading advisor of the Fund.
(b) For the period and on the terms and conditions set forth in this
Agreement, the Trading Advisor shall have sole authority and responsibility
for investing and reinvesting the Fund's assets using the Trading Advisor's
proprietary trading strategies as described in the Memorandum. In addition,
for the period and on the terms and conditions set forth in this Agreement,
the General Partner hereby constitutes, appoints and authorizes the Trading
Advisor as the Fund's true and lawful agent and attorney-in-fact, in the
Fund's name, place and stead to trade, buy, sell, spread, swap, exchange or
otherwise trade (including short sales), deal in, acquire, hold or dispose of
"futures" and "securities," on margin or otherwise, on U.S. and non-U.S.
exchanges and markets (including the interbank and over-the-counter markets),
in each case for the account and risk of the Fund.
(c) The Trading Advisor agrees to make all material disclosures to
the Fund and the General Partner regarding itself and its members, managers,
partners, officers, directors, shareholders, employees, affiliates or any
person who controls any of the foregoing ("Principals and Affiliates"), their
investment performance and general investment methods, the investment
performance of their customer accounts (but not the identities of customers)
and otherwise as are required in the reasonable judgment of the Fund or the
General Partner to be made in any filings required by any governmental body or
by any applicable law, regulation, rule or order or as are deemed necessary by
the Fund or the General Partner to enable it to monitor the performance of the
Trading Advisor. Each party to this Agreement agrees to maintain in strict
confidence the terms of this Agreement and any and all information, materials
or other documents regarding the other parties which it obtains pursuant to or
in connection with this Agreement, and agrees that it shall not disclose any
such documents, material or other information to any person other than each
party's attorneys and accountants unless required to do so by law, regulation,
the request of any regulatory or self-regulatory authority or valid legal
process. The Fund and the General Partner acknowledge that the trading advice
provided by the Trading Advisor constitutes proprietary information of the
Trading Advisor, and the Fund and the General Partner shall not make use of
such advice in any manner or disclose such advice to any person or entity
unless required to do so by law, regulation, the request of any regulatory or
self-regulatory authority or valid legal process. Nothing contained in this
Agreement shall be construed or deemed to require the Trading Advisor to
disclose the confidential or proprietary details of its trading strategies.
(d) The Trading Advisor may refuse any additional allocation of
assets from the General Partner for any reason. However, the Trading Advisor
understands and agrees that the General Partner may at my time remove all of
the assets of the Fund from the management of the Trading Advisor and may
require the Trading Advisor, to the extent possible, to liquidate existing
positions in an orderly manner as soon as practicable.
2. Compensation
(a) The Fund shall pay to the Trading Advisor such portion of the
management and incentive fees charged the Trading Company Upon the close of
business on the last business day of every calendar month, the Trading Advisor
shall be paid a monthly management fee, payable in arrears, in an amount equal
to l/6th of 1.0% of the Net Asset Value of the Fund whether or not the Fund is
profitable (approximately 2.0% annually). For purposes of calculating the
management fee, Net Asset Value of the Fund is determined before reduction
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for the Trading Managers management and incentive fees and the General
Partner's administrative fee accrued or paid as of such calendar month-end and
before giving effect to any subscriptions, distributions or redemptions
accrued or paid as of such calendar month-end. In the event that a Limited
Partner redeems some or all of its Units or the Fund is dissolved or
terminated as of any date other than the last business day of a calendar
month, the management fee shall be pro-rated based on fee ratio that the
number of days in the calendar month through the date of such event bears to
the total number of days in the calendar month.
(b) Upon the close of business on the last business day of every
calendar month, the Fund shall pay the Trading Advisor an incentive fee equal
to 20.0% of the Net New Appreciation (as defined below), if any, achieved by
the Fund as of the end of such calendar month. The Trading Advisor shall be
entitled to retain all incentive fees previously paid to it even if subsequent
losses are incurred. However, no subsequent incentive fees shall be paid to
the Trading Advisor until the Trading Advisor has again achieved Net New
Appreciation for the Fund.
(c) Net New Appreciation achieved during a calendar month shall mean
the excess, if any, of (A) the Net Asset Value of the Fund as of the end of
the calendar month (without reduction for any incentive fees accrued or paid
to the Trading Advisor for the calendar month or for any redemptions or
distributions effected during or as of the end of such calendar month and
without increase for any additional capital contributions effected during or
as of the end of such calendar month) over (B) the Net Asset Value of the Fund
as of the end of the most recent prior calendar month for which an incentive
fee was accrued or paid with clause (B) reduced by the amount of the incentive
fees accrued or paid for such prior calendar month and also reduced by any
redemptions or distributions, and increased by any contributions, effected as
of or subsequent to the end of such prior calendar month through the first day
of the calendar month referred to in clause (A), above. For purposes of
calculating the first incentive fee payable to the Trading Advisor, clause (B)
means the initial Net Asset Value of the Fund on the day the Fund commences
trading activities. For purposes of calculating Net New Appreciation, taxes
and extraordinary expenses shall be excluded.
3. Term and Termination
(a) Term. The term of this Agreement shall commence upon the
execution of this Agreement and shall terminate as hereinafter provided.
(b) Termination.
(i) This Agreement shall terminate automatically with respect to
event that the Fund is dissolved or terminated.
(ii) This Agreement may be terminated at any time in its entirety
upon the consent of all the parties hereto.
(iii) This Agreement may be terminated by the Trading Advisor upon
90 days' prior notice to the Fund and the General Partner.
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(c) The rights of the Trading Advisor to receive fees earned through
the date of termination of this Agreement shall survive any such termination
of this Agreement until satisfied.
4. Standard of Liability and Indemnity
(a) Standard of Liability. The Trading Advisor shall not be liable
to the Fund, the General Partner or their respective Principals and Affiliates
or their successors or assigns for any act or failure to act taken or omitted
by the Trading Advisor in good faith in a manner reasonably believed to be in
or not opposed to the best interests of the Fund if such act or failure to act
did not constitute negligence, willful misconduct or a breach of this
Agreement.
(b) Indemnity. (i) The Fund shall indemnify and hold harmless the
Trading Advisor and its Principals and Affiliates from and against any and all
losses, claims, damages, liabilities, costs and expenses (including, without
limitation, attorneys' and accountants' fees and disbursements), judgments and
amounts paid in settlement (collectively, "Losses"), to which an indemnified
person may become subject arising out of this Agreement, the transactions
contemplated hereby or the fact that the Trading Advisor is or was a trading
advisor to the Fund, unless any such Losses are the direct result of the
Trading Advisor's failure to meet the standard of liability applicable to it
under Section 4(a).
(ii) The Trading Advisor shall indemnify and hold harmless the Fund
and the General Partner from and against any and all Losses to which they
may become subject, if any such Losses are the direct result of the
Trading Advisor's failure to meet the standard of liability applicable to
it under Section 4(a).
(c) Promptly after receipt by any of the indemnified parties under
this Agreement of notice of any action, arbitration, claim, demand, dispute,
lawsuit or other proceeding (each a "Proceeding"), the party seeking
indemnification (the "Indemnitee") shall notify the party from which
indemnification is sought (the "Indemnitor") in writing of the commencement
thereof if a claim with respect thereof is to be made under this Agreement. To
the extent that the Indemnitor has actual knowledge of the commencement of
such Proceeding, the failure to notify the Indemnitor shall not relieve such
Indemnitor from any indemnification liability which it may have to such
Indemnitee pursuant to this Section 4, and the omission to notify the
Indemnitor shall not relieve the Indemnitor from any obligation or liability
which it may have to any such Indemnitee otherwise than under this Section 4.
The Indemnitor shall be entitled to participate in the defense of any such
Proceeding and to assume the defense thereof with the assistance of counsel
reasonably satisfactory to the Indemnitee. In any such Proceeding, the
Indemnitee shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the Indemnitee's own expense unless (i)
otherwise agreed by the Indemnitor and Indemnitee or (ii) the named parties to
any such Proceeding (including any impleaded parties) include both the
Indemnitor and the Indemnitee, and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or the existence of different or additional defenses (it being
understood, however, that the Indemnitor shall not be liable for legal fees or
other expenses of more than one separate firm of attorneys for all such
Indemnitees, which firm shall be designated in writing by such Indemnitees and
be reasonably acceptable to the Indemnitor). The Indemnitee will cooperate with
the
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Indemnitor in connection with any such Proceeding and shall make all
personnel, books and records relevant to the Proceeding available to the
Indemnitor and grant such authorizations or powers of attorney to the agents,
representatives and counsel of the Indemnitor as the Indemnitor may reasonably
consider desirable in connection with the defense of any such Proceeding.
(d) An Indemnitor shall not be liable under this Section 4 for any
settlement of any Proceeding effected without its consent with respect to
which indemnity may be sought hereunder.
(e) Any dispute as to whether a person or entity is entitled to
indemnification under Section 4 of this Agreement shall be determined by
binding arbitration in accordance with Section 17 of this Agreement.
(f) The provisions of this Section 4 shall survive the termination
of this Agreement.
5. Representations, Warranties and Covenants
(a) The Fund represents, warrants and covenants to the General
Partner and the Trading Advisor as follows:
(i) it is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its formation, with full power and
authority to enter into and perform its obligations under this Agreement
and to conduct its business as described in this Agreement and in the
Memorandum;
(ii) this Agreement has been duly and validly authorized, executed
and delivered by it and is a valid and binding agreement of it
enforceable in accordance with its terms;
(iii) the performance by it of its obligations under this Agreement
will not conflict with or result in a breach of any of the terms or
provisions of, or in the imposition of any lien, charge or encumbrance
upon any of the property or assets of it pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of the property or assets of it is subject, nor will any such action or
performance result in a violation of the provisions of its organizational
documents or any law, statute, order, rule or regulation of any court or
governmental authority or body having jurisdiction over it;
(iv) it will comply in all material respects with all laws, rules,
regulations and orders of any governmental agency or self-regulatory
organization applicable to its business, this Agreement and the matters
to be discharged by it with respect to the offering of the Shares; and
(b) The Trading Advisor represents, warrants and covenants to the
Fund and the General Partner as follows:
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(i) it is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its formation, with full power and
authority to enter into and perform its obligations under this Agreement
and to conduct its business as described in this Agreement and in the
Memorandum;
(ii) this Agreement has been duly and validly authorized, executed
and delivered by the Trading Advisor and is a valid and binding agreement
of the Trading Advisor enforceable in accordance with its terms;
(iii) the performance by the Trading Advisor of its obligations
under this Agreement will not conflict with or result in a breach of any
of the terms or provisions of, or in the imposition of any lien, charge
or encumbrance upon any of the property or assets of the Trading Advisor
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Trading Advisor
is a party or by which the Trading Advisor is bound or to which any of
the property or assets of the Trading Advisor is subject, nor will any
such action or performance result in a violation of the provisions of its
organizational documents or any law, statute, order, rule or regulation
of any court or governmental authority or body having jurisdiction over
the Trading Advisor; and
(iv) it will comply in all material respects with all laws, rules,
regulations and orders of any governmental agency or self-regulatory
organization applicable to its business and this Agreement.
(c) The General Partner represents, warrants and covenants to the
Trading Advisor as follows:
(i) it is duly organized and validly existing and in good standing
under the laws of the jurisdiction of its formation, with full power and
authority to enter into and perform its obligations under this Agreement
and to conduct its business as described in this Agreement and in the
Memorandum;
(ii) this Agreement has been duly and validly authorized, executed
and delivered by the General Partner and is a valid and binding agreement
of the General Partner enforceable in accordance with its terms;
(iii) the performance by the General Partner of its obligations
under this Agreement will not conflict with or result in a breach of any
of the terms or provisions of, or in the imposition of any lien, charge
or encumbrance upon any of the property or assets of the General Partner
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the General Partner
is a party or by which the General Partner is bound or to which my of the
property or assets of the General Partner is subject, nor will any such
action or performance result in a violation of the provisions of its
organizational documents or any law, statute, order, rule or regulation
of any court or governmental authority or body having jurisdiction over
the General Partner; and
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(iv) it will comply in all material respects with all laws, rules,
regulations and orders of any governmental agency or self-regulatory
organization applicable to its business and this Agreement.
(d) Each party hereto will promptly notify the other parties of the
commencement of any Proceeding involving it or its Principals and Affiliates,
whether or not any such Proceeding also involves any other party hereto.
(e) All representations, warranties and covenants contained in this
Agreement shall be continuing during the term of this Agreement and shall
survive the termination of this Agreement with respect to any matter arising
while this Agreement was in effect. Each party hereby agrees that as of the
date of this Agreement it is, and during its term shall be, in compliance with
its representations, warranties and covenants herein contained. In addition,
if at any time any event occurs which would make, or tend to make, any of such
representations, warranties or covenants not true the affected party will use
its best efforts to promptly notify the other parties of such facts in the
manner provided below. All representations, warranties and covenants herein
contained shall inure to the benefit of the parties to whom it is addressed
and their respective heirs, executors, administrators, legal representatives,
successors and permitted assigns.
6. Complete Agreement
This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and no other agreement, verbal
or otherwise, shall be binding on the parties hereto.
7. Assignment
This Agreement may not be assigned by a party without the express
written consent of the other parties and any assignment without the consent of
all the parties hereto shall be null and void.
8. Amendment
This Agreement may not be amended or modified except by the written
consult of all of the parties hereto.
9. Successors
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns, and except as
otherwise provided in Section 4 and Section 5, above, no other person shall
have any right or obligation under this Agreement.
10. Notices
Except as otherwise provided herein, all notices, demands or
requests required to be made or delivered under this Agreement shall be
effective only if in writing and delivered personally, by facsimile or by
mail, postage prepaid (airmail if the addressee is in another
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country), to the respective addresses below or to such other addresses as may
be designated by the party entitled to receive the same by notice similarly
given and shall be deemed given by the party required to provide notice when
received by the party to whom notice is required to be given:
If to the Fund, to it at:
c/o Man Investments (USA) Corp.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 XXX
Attn: Legal and Compliance
Fax No.: 0-000-000-0000
If to the General Partner, to it at:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 XXX
Attn: Legal and Compliance
Fax. No.: 0-000-000-0000
If to the Trading Advisor, to it at:
Xxxxx Xxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X0XX
Xxxxxxx
Attn: Managing Director
Fax No.: 000-00-000-000-0000
11. Parties Independent; Other Accounts and Activities
(a) Each of the parties hereto shall for all purposes herein be
deemed to be an independent contractor and, except as otherwise expressly
provided herein, shall have no authority to act for or represent any other
party in any way or otherwise to be deemed an agent, joint venturer, partner
or sponsor of any other party.
(b) The Trading Advisor's present business includes managing and
advising its assets, the assets of its Principals and Affiliates and
discretionary client accounts in the purchase and sale of futures and
securities and it will be managing and advising such accounts and assets for
other clients during the same period that it is managing and advising the
Fund's account. The services to be provided by the Trading Advisor hereunder
are not to be deeded exclusive. Subject to the terms of this Agreement, the
Trading Advisor and its Principals and Affiliates shall be free to trade for
their own accounts and to advise other persons and manage futures and
securities trading accounts for other persons during the term of this
Agreement and to use the same or different information and investment
methodologies which it obtains, produces
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or utilizes in the performance of services for the Fund. The parties hereto
acknowledge that performance results obtained for the Fund's account may
differ from performance results obtained for other accounts under the Trading
Advisor's management and that the Trading Advisor may have an incentive to
favor certain accounts over the Fund's account.
12. Survival
The provisions of this Agreement shall survive the termination of
this Agreement with respect to any matter arising while this Agreement was in
effect.
13. Headings
Headings to sections herein are for the convenience of the parties
only and are not intended to be or to affect the meaning or interpretation of
this Agreement.
14. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute
one and the same instrument. Signatures on this Agreement may be communicated
by facsimile transmission and shall be binding upon the parties so
transmitting their signatures. Counterparts with original signatures shall be
provided to the other parties following the applicable facsimile transmission;
provided, that the failure to provide the original counterpart shall have no
effect on the validity or the binding nature of this Agreement.
15. Waiver of Breach; Cure of Breach
The waiver by a party of a breach of any provisions of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach by a party. The failure of a party to insist upon a strict adherence to
any provision of this Agreement shall not constitute a waiver or thereafter
deprive such party of the right to insist upon a strict adherence. In the
event that a party becomes aware that it is in breach of any of its
representations, warranties, covenants or agreements set forth in this
Agreement, the affected party will use its best efforts to promptly take such
actions as it deems necessary, in its sole discretion, to cure such breach.
16. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of England without giving effect to the principles of conflicts of
laws.
17. Arbitration
The parties agree that all controversies which may arise in
connection with any transaction contemplated by this Agreement or the
construction, performance or breach of this Agreement shall be determined by
arbitration, to be held in the City of Chicago, State of Illinois, USA, unless
otherwise agreed to by the parties hereto, and in accordance with the rules
then obtaining of the National Futures Association, or if no such rule is in
effect or if jurisdiction is declined, then in accordance with the rules then
obtaining of the American Arbitration
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Association; provided, however, that the arbitrator(s) shall be knowledgeable
in industry standards and practices and the matters giving rise to the
dispute, that the arbitrator(s) shall not have the power and authority to
award punitive damages, that the authority of the arbitrator(s) shall be
limited to construing and enforcing the terms and conditions of this Agreement
as expressly set forth herein and that the arbitrator(s) shall state their
reasons for their award and their legal and factual conclusions underlying the
award in a written opinion. The award of the arbitrator(s), or a majority of
them, shall be final, and judgment upon the award may be confirmed and entered
in any court, state or Federal, having jurisdiction.
18. Consent to Jurisdiction
Except as otherwise provided in Section 17, above, each party hereto
expressly and irrevocably agrees: (a) that it waives any objection, and
specifically consents, to venue in the courts located in London, England, so
that any action at law or in equity may be brought and maintained in any such
court; and (b) that service of process in any such action may be effected
against such party in any manner permitted by applicable rules of civil
procedure or rules of the courts of London, England. In addition each party
hereto expressly and irrevocably waives, in respect of any action brought in
any court located in London, England or any resulting judgment, any objection,
and hereby specifically consents, to the personal and subject matter
jurisdiction of any such court, and agrees not to seek to change the situs of
such action or to assert that any other court in any other jurisdiction is a
more suitable forum for the hearing and adjudication of any claim or dispute
raised in such action.
19. Acknowledgment of Trading Advisor's Disclosure Document
The General Partner on behalf of the Fund hereby acknowledges
receipt of the Trading Advisor's Disclosure Document, dated as of April 1,
2005.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered
for and on behalf of the undersigned as of the day and year first above
written.
MAN-AHL DIVERSIFIED I, L.P.
By: Man Investments (USA) Corp.
Its General Partner
By:
------------------------------------------
Xxxxxx Xxxxx, Vice President and Secretary
MAN INVESTMENTS (USA) CORP.
By:
------------------------------------------
Xxxxxx Xxxxx, Vice President and Secretary
MAN-AHL (USA) LIMITED
By:
------------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
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IN WITNESS WHEREOF, this Agreement has been executed and delivered
for and on behalf of the undersigned as of the day and year first above
written.
MAN-AHL DIVERSIFIED I, L.P.
By: Man Investments (USA) Corp.
Its General Partner
By:
------------------------------------------
Xxxxxx Xxxxx, Vice President and Secretary
MAN INVESTMENTS (USA) CORP.
By:
------------------------------------------
Xxxxxx Xxxxx, Vice President and Secretary
MAN-AHL (USA) LIMITED
By:
------------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
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