EXHIBIT 99.2g(i)
INVESTMENT MANAGEMENT AGREEMENT
THE TOPIARY BENEFIT PLAN INVESTOR FUND LLC
AGREEMENT, made as of [December 11, 2003] between The Topiary Benefit
Plan Investor Fund LLC, a Delaware limited liability company (the "Fund"), and
DB Investment Managers, Inc., a Delaware corporation (the "Adviser").
WHEREAS, the Fund is registered with the Securities and Exchange
Commission (the "SEC") as a closed-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser is registered with the SEC as an investment adviser
under the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Fund desires to retain the Adviser so that it will render
investment advisory services to the Fund in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, the Adviser is willing to render such services and/or engage
others to render such services to the Fund;
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed by the parties as follows:
1. Appointment. The Fund hereby appoints the Adviser to act as investment
adviser and provide investment advisory services to the Fund, subject to
the supervision of the Fund's board of directors (the "Board," "Board of
Directors," or "Directors"), for the period and on the terms and
conditions set forth in this Agreement. The Adviser accepts such
appointment and agrees to render the services and to assume the
obligations set forth in this Agreement commencing on its effective date
for the compensation herein provided.
2. Responsibilities of the Adviser.
(a) The Adviser hereby undertakes and agrees, upon the terms and
conditions herein set forth, subject to the supervision of the
Fund's Board of Directors, either directly or indirectly through one
or more Subadvisers (as that term is defined in paragraph 4 below):
(i) to make investment decisions and provide a program of
continuous investment management for the Fund; prepare, obtain,
evaluate, and make available to the Fund research and
statistical data in connection therewith; obtain and evaluate
such information and advice relating to the economy, securities
markets, and securities as it deems necessary or useful to
discharge its duties hereunder; engage in or supervise the
selection, acquisition, retention, and sale of investments,
securities, and/or cash; engage in or supervise the selection,
acquisition, retention, and sale of unregistered investment
funds, and/or other investment vehicles (the "Investment
Funds"); select brokers or dealers to execute transactions; and
all of the aforementioned shall be done in accordance with the
Fund's investment objective, policies, and limitations as
stated in the Fund's offering document included as part of the
Fund's registration statement filed with the SEC on Form N-2
under the 1940 Act (the "Registration Statement"), as amended
from time to time, and in accordance with guidelines and
directions from the Fund's Board of Directors and any
applicable laws and regulations;
(ii) subject to the direction and control of the Fund's Board
of Directors, to assist the Fund as it may reasonably request
in the conduct of the Fund's business, including oral and
written research, analysis, advice, statistical, and economic
data, judgments regarding individual investments, general
economic conditions and trends, and long-range investment
policies; determine or recommend the securities, instruments,
repurchase agreements, options, and other investments
(including the Investment Funds), and techniques that the Fund
will purchase, sell, enter into, use, or provide in an ongoing
evaluation of the Fund's portfolio; continuously manage and
supervise the investment program of the Fund and the
composition of its investment portfolio in a manner consistent
with the investment objective, policies, and restrictions of
the Fund, as set forth in its Registration Statement and as may
be adopted from time to time by the Board, and applicable laws
and regulations; determine or recommend the extent to which the
Fund's portfolio shall be invested in securities, Investment
Funds, and other assets, and what portion if any, should be
held uninvested; and undertake to do anything incidental to the
foregoing to facilitate the performance of its obligations
hereunder;
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(iii) furnish to or place at the disposal of the Fund
information, evaluations, analyses, and opinions formulated or
obtained by the Adviser in the discharge of its duties as the
Fund may, from time to time reasonably request, and maintain or
cause to be maintained for the Fund all books, records,
reports, and any other information required under the 1940 Act,
to the extent that such books, records, reports, and other
information are not maintained or furnished by the custodian,
transfer agent, administrator, sub-administrator, or other
agent of the Fund;
(iv) to furnish at the Adviser's expense for the use of the
Fund such office space, telephone, utilities, and facilities as
the Fund may require for its reasonable needs and to furnish at
the Adviser's expense clerical services related to research,
statistical, and investment work;
(v) to render to the Fund management and administrative
assistance in connection with the operation of the Fund that
shall include (i) compliance with all reasonable requests of
the Fund for information, including information required in
connection with the Fund's filings with the SEC, other federal
and state regulatory organizations, and self-regulatory
organizations, and (ii) such other services as the Adviser
shall from time to time determine to be necessary or useful to
the administration of the Fund; and
(vi) to pay the reasonable salaries, fees, and expenses of the
Fund's officers and employees (including the Fund's share of
payroll taxes) and any fees and expenses of the Fund's
Directors who are directors, officers, or employees of or
otherwise affiliated with the Adviser; provided, however, that
the Fund, and not the Adviser, shall bear travel expenses (or
an appropriate portion thereof) of Directors and officers of
the Fund who are directors, officers, or employees of the
Adviser to the extent that such expenses relate to attendance
at meetings of the Fund's Board of Directors or any committees
thereof or advisers thereto. The Adviser shall bear all
expenses arising out of its duties hereunder but shall not be
responsible for any expenses of the Fund other than those
specifically allocated to the Adviser in this Agreement.
(b) In particular, but without limiting the generality of the
foregoing, the Adviser shall not be responsible, except to the
extent of the reasonable compensation of the
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Fund's employees who are directors, officers, or employees of the
Adviser whose services may be involved, for the following expenses
of the Fund: organizational and offering expenses of the Fund; fees
payable to any consultants, including an advisory board (if
applicable); fees paid directly or indirectly to investment advisers
of the Investment Funds; brokerage commissions or all other costs
and expenses directly related to portfolio transactions, acquiring
or disposing of any portfolio security, and positions for the Fund's
account such as direct or indirect expenses associated with the
Fund's investments, including investments in the Investment Funds;
legal expenses; auditing and accounting expenses; telephone, telex,
facsimile, postage, and other communications expenses; interest,
insurance premiums, taxes, and governmental fees; dues and expenses
incurred by the Fund or with respect to the Fund in connection with
membership in investment company trade organizations; fees and
expenses of the Fund's administrator, sub-administrator, custodian,
transfer agent and registrar, placement agents, or any other agent
of the Fund; payment for portfolio pricing or valuation services to
pricing agents, accountants, bankers, and other specialists (if
any); fees and expenses related to the repurchase of interests of
members of the Fund; other expenses in connection with the issuance,
offering, distribution, sale, or underwriting of interests issued by
the Fund, including preparing stock certificates; expenses of
registering or qualifying interests of the Fund for sale; expenses
relating to investor and public relations; freight, insurance, and
other charges in connection with any shipment of the Fund's
portfolio securities; expenses of preparing, printing, and
distributing offering memoranda and other marketing materials,
reports, notices to members, the SEC, and other regulatory agencies,
and providing distributions to members; costs of stationery; costs
of members' and other meetings, including proxy preparation,
printing, and mailing; or litigation expenses.
3. Use of Name. As licensee of the rights to use and sublicense the use of the
names ["Topiary,"] "Deutsche," and "DB," trademarks and any derivatives
thereof or logo associated with those names, the Adviser hereby grants the
Fund a non-exclusive right and sublicense to use (i) the [Topiary,] Deutsche,
and DB names and marks as part of the Fund's name (the "Fund Name"), and (ii)
in connection with the Fund's investment products and services, in each case
only for so long as this Agreement, any other investment management agreement
between the Fund and the Adviser (or any organization which shall have
succeeded to the Adviser's business as investment manager (the "Adviser's
Successor")), or any extension, renewal, or amendment hereof or thereof
remains in effect, and only for so long as the Adviser is a licensee of the
["Topiary,"] Deutsche, and DB names and marks, provided, however, that the
Adviser
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agrees to use its best efforts to maintain its license to use and sublicense
the ["Topiary,"] Deutsche, and DB names and marks. The Fund agrees that (i) it
shall have no right to sublicense or assign rights to use the ["Topiary,"]
Deutsche, and DB names and marks, (ii) it shall acquire no interest in the
["Topiary,"] Deutsche, and DB names and marks other than the rights granted
herein and (iii) it shall not challenge the validity of the ["Topiary,"]
Deutsche, and DB names and marks or the ownership thereof. The Fund further
agrees that all services and products it offers in connection with the
["Topiary,"] Deutsche, and DB names and marks shall meet commercially
reasonable standards of quality, as may be determined by the Adviser from time
to time. At the Adviser's reasonable request, the Fund shall cooperate with
the Adviser and shall execute and deliver any and all documents necessary to
maintain and protect (including, but not limited to any trademark infringement
action) the Adviser and/or enter the Fund as a registered user thereof. At
such time as this Agreement or any other investment management agreement shall
no longer be in effect between the Adviser (or the Adviser's Successor) and
the Fund, or the Adviser no longer is a licensee of the ["Topiary,"] Deutsche,
and DB names and marks, the Fund shall (to the extent that, and as soon as, it
lawfully can) cease to use the Fund Name or any other name indicating that it
is advised by, managed by or otherwise connected with the Adviser (or the
Adviser's Successor). In no event shall the Fund use the ["Topiary,"]
Deutsche, and DB names and marks or any other name or xxxx confusingly similar
thereto (including, but not limited to, any name or xxxx that includes the
name ["Topiary,"] "Deutsche," or "DB" if this Agreement or any other
investment management agreement between the Adviser (or the Adviser's
Successor) and the Fund is terminated.
4. Subadvisers. The Adviser may, at its expense and subject to its
supervision, engage one or more persons, including, but not limited to,
subsidiaries and affiliated persons of the Adviser, to render any or all of
the investment advisory services that the Adviser is obligated to render under
this Agreement, including, subject to approval of the Fund's Board of
Directors, a person or persons to render investment advisory services
including the provision of a continuous investment program and the
determination of the composition of the securities and other assets of the
Fund (each, a "Subadviser"). Member approval of the appointment of a
Subadviser by the Adviser pursuant to this paragraph is required only to the
extent required by applicable law, as may be modified by any exemptive order
or other interpretation received from the SEC.
5. Regulatory Compliance. In performing its duties hereunder, the Adviser (and
any Subadvisers selected by the Adviser) shall comply with (i) the 1940 Act
and all rules and regulations thereunder, (ii) all other applicable federal
and state laws and regulations, (iii) any applicable procedures adopted by the
Fund's Board of Directors, and (iv) the provisions of the Fund's Registration
Statement.
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6. Compensation. As compensation for the services performed and the facilities
and personnel provided by the Adviser pursuant to this Agreement, the Fund
will pay the Adviser quarterly in arrears a management fee (the "Management
Fee"), calculated on the last business day of each month during such quarter
equal to 0.25% of the Fund's month-end net assets (a 1.0% annual rate). If the
Adviser shall serve hereunder for less than the whole of any quarter, the fee
hereunder shall be prorated according to the proportion that such period bears
to the full quarter and shall be payable within 30 days after the end of the
relevant quarter or the date of termination of this Agreement, as applicable.
The value of the net assets of the Fund shall be determined pursuant to the
applicable provisions of the limited liability company operating agreement
(the "Operating Agreement"), valuation procedures, and Registration Statement
of the Fund, each as amended from time to time. If the determination of the
net asset value of the Fund has been suspended for a period including the end
of any quarter when the Adviser's compensation is payable pursuant to this
paragraph, then the Adviser's compensation payable with respect to such
quarter shall be computed on the basis of the value of the net assets of the
Fund as last determined (whether during or prior to such quarter). If the Fund
determines the value of the net assets of its portfolio more than once in any
month, then the last such determination thereof in that month shall be deemed
to be the sole determination thereof in that month for the purposes of this
paragraph.
7. Portfolio Transactions.
(a) In executing transactions for the Fund and selecting brokers or
dealers, the Adviser (either directly or through Subadvisers) shall
place orders pursuant to its investment determinations for the Fund
directly with the issuer, or with any broker or dealer, in
accordance with applicable policies expressed in the Fund's
Registration Statement and any applicable legal requirements.
Without limiting the foregoing, the Adviser (or a Subadviser) shall
use its best efforts to obtain for the Fund the most favorable price
and best execution available, considering all of the circumstances,
and shall maintain records adequate to demonstrate compliance with
this requirement. Subject to the appropriate policies and procedures
approved by the Fund's Board of Directors, the Adviser (or the
Subadviser) may, to the extent authorized by Section 28(e) of the
Securities Exchange Act of 1934, as amended (the "Securities
Exchange Act"), cause the Fund to pay a broker or dealer that
provides brokerage or research services to the Adviser (or the
Subadviser) an amount of commission for effecting a portfolio
transaction in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the
Adviser (or the Subadviser) determines, in good faith, that such
amount of commission is reasonable in relationship to the value of
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such brokerage or research services provided viewed in terms of that
particular transaction or the Adviser's (or the Subadviser's)
overall responsibilities to the Fund or its other advisory clients.
To the extent authorized by Section 28(e) of the Securities Exchange
Act and the Fund's Board of Directors, the Adviser (or the
Subadviser) shall not be deemed to have acted unlawfully or to have
breached any duty created by this Agreement or otherwise solely by
reason of such action.
(b) To the extent applicable to the Fund and consistent with these
standards, in accordance with Section 11(a) of the Securities
Exchange Act and Rule 11a2-2(T) thereunder, and subject to any other
applicable laws and regulations, the Adviser (or the Subadviser) is
further authorized to allocate the orders placed by it on behalf of
the Fund to the Adviser (or the Subadviser) if it is registered as a
broker or dealer with the SEC, to its affiliate that is registered
as a broker or dealer with the SEC, or to such brokers and dealers
that also provide research or statistical research and material, or
other services to the Fund or the Adviser (or the Subadviser). Such
allocation shall be in such amounts or proportions as the Adviser
(or the Subadviser) shall determine consistent with the above
standards, and, upon request, the Adviser (or the Subadviser) will
report on said allocation regularly to the Fund's Board of Directors
indicating the broker-dealers to which such allocations have been
made and the basis therefor.
8. Reports. The Adviser (or the Subadviser) will regularly report to the
Fund's Board of Directors on the investment program of the Fund and the
issuers and securities generally represented in the Fund's portfolio,
including reports received from the Investment Funds, and will furnish the
Fund's Board of Directors such periodic and special reports as the Directors
may reasonably request.
9. Not Exclusive. Nothing herein shall be construed as prohibiting the
Adviser, Subadviser, or any director, officer, partner, employee, or affiliate
thereof from providing investment management or advisory services to, or
entering into investment management or advisory agreements with, other clients
(including other registered investment companies), including clients which may
from time to time purchase and/or sell securities of issuers in which the Fund
invests, or from utilizing (in providing such services) information furnished
to the Adviser by advisors and consultants to the Fund and others (including
Subadvisers); provided however, that the Adviser shall undertake no activities
that, in its judgment, would adversely affect the performance of its
obligations under this Agreement.
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10. Conflicts of Interest. Whenever the Fund and one or more other accounts or
investment companies managed or advised by the Adviser or a Subadviser have
available funds for investment, investments suitable and appropriate for each
shall be allocated in accordance with procedures approved by the Fund's Board
of Directors and believed by the Adviser or the Subadviser to be equitable to
each entity. Similarly, opportunities to sell securities shall be allocated in
accordance with procedures approved by the Fund's Board of Directors and
believed by the Adviser or the Subadviser to be equitable. The Fund recognizes
that in some cases this procedure may adversely affect the size of the
position that may be acquired or disposed of for the Fund. In addition, the
Fund acknowledges that any member, director, officer, or persons employed by
the Adviser, its affiliates, or a Subadviser, who may also be a member,
director, officer, or person employed by the Fund, to assist in the
performance of the Adviser's or the Subadviser's duties hereunder will not
devote their full time to such service and nothing contained herein shall be
deemed to limit or restrict the right of the Adviser or any affiliate of the
Adviser or a Subadviser to engage in and devote time and attention to other
businesses or to render services of whatever kind or nature.
11. Independent Contractor. The Adviser shall for all purposes herein be
deemed to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized by the Fund's Board of Directors from time to
time, have no authority to act for or represent the Fund in any way or
otherwise be deemed its agent.
12. Liability. The Adviser may rely on information reasonably believed by it
to be accurate and reliable, including but not limited to any information or
report from the Investment Funds, and shall give the Fund the benefit of its
best judgment and effort in rendering services hereunder. Neither the Adviser
nor its members, officers, directors, employees, or agents and its affiliates,
successors, or other legal representatives shall be subject to any liability
for any act or omission, error of judgment, mistake of law, or for any loss
suffered by the Fund, in the course of, connected with, or arising out of any
services to be rendered hereunder, except by reason of willful misfeasance,
bad faith, or gross negligence on the part of the Adviser in the performance
of its duties or by reason of reckless disregard on the part of the Adviser of
its obligations and duties under this Agreement. Any person, even though also
employed by the Adviser, who may be or become an employee of the Fund and paid
by the Fund shall be deemed, when acting within the scope of his employment by
the Fund, to be acting in such employment solely for the Fund and not as an
employee or agent of the Adviser.
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13. Indemnification.
(a) The Fund shall 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 misfeasance, 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. 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 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 to the fullest
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extent permitted by law. The provisions of this paragraph shall
survive the termination or cancellation of this Agreement.
14. Term of Agreement; Termination. This Agreement shall remain in effect
until the date which is two years from the day and date first written above,
and shall continue in effect year to year thereafter, but only so long as such
continuance is specifically approved at least annually by the affirmative vote
of: (i) a majority of the members of the Fund's Board of Directors who are not
parties to this Agreement or interested persons (as defined in the 0000 Xxx)
of any party to this Agreement, or of any entity regularly furnishing
investment advisory services with respect to the Fund pursuant to an agreement
with any party to this Agreement, cast in person at a meeting called for the
purpose of voting on such approval; and (ii) a majority of the Fund's Board of
Directors or the holders of a majority of the outstanding voting securities of
the Fund. This Agreement may nevertheless be terminated at any time without
penalty, on 60 days' written notice, by the Fund's Board of Directors, by vote
of holders of a majority of the outstanding voting securities of the Fund, or
by the Adviser. This Agreement shall automatically be terminated in the event
of its assignment, provided that an assignment to a corporate successor to all
or substantially all of the Adviser's business or to a wholly owned subsidiary
of such corporate successor which does not result in a change of actual
control or management of the Adviser's business shall not be deemed to be an
assignment for the purposes of this Agreement. Any notice to the Fund or the
Adviser shall be deemed given when received by the addressee.
15. Assignment. Subject to Section 14 hereof, this Agreement may not be
transferred, assigned, sold, or in any manner hypothecated or pledged by
either party hereto, except as permitted under the 1940 Act or rules and
regulations adopted thereunder.
16. Amendment. This Agreement may be amended only by the written agreement of
the parties. Any amendment shall be required to be approved by the Board and
by a majority of the independent Directors in accordance with the provisions
of Section 15(c) of the 1940 Act and the rules and regulations adopted
thereunder. If required by the 1940 Act, any material amendment shall also be
required to be approved by such vote of the members of the Fund as is required
by the 1940 Act and the rules thereunder.
17. Conflicts of Laws. 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, provided, however, that nothing herein shall be
construed as being inconsistent with the 1940 Act. As used herein, the terms
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"interested person," "assignment," and "vote of a majority of the outstanding
voting securities" shall have the meanings set forth in the 1940 Act.
18. Management of Subsidiaries. If the Fund's Board of Directors determines
that it is in the best interests of the Fund and its members to carry on all
or part of the business of the Fund through one or more subsidiaries, the
Board of Directors may cause the substantive terms of this Agreement to apply
to the management of any such subsidiary or subsidiaries.
19. Fund Obligations. This Agreement is made by the Fund and executed on
behalf of the Fund by an officer of the Fund, and the obligations created
hereby are not binding on any of the Directors, officers, members, employees,
or agents, whether past, present, or future of the Fund individually, but bind
only the assets and property of the Fund.
20. 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 effected thereby and, to this extent, the provisions of
this Agreement shall be deemed to be severable.
21. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more
than one such counterpart.
22. Supersedes Other Agreements. This Agreement supersedes all prior
investment advisory, management, and/or administration agreements in effect
between the Fund and the Adviser.
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IN WITNESS WHEREOF, the parties have executed this Agreement by
their officers thereunto duly authorized as of the day and year first written
above.
THE TOPIARY BENEFIT PLAN INVESTOR FUND LLC
By: ___________________________________
Name:
Title:
DB INVESTMENT MANAGERS, INC.
By: ___________________________________
Name:
Title:
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