INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT is entered into as of the 8th day of May, by and between
the HART CAPITAL MANAGEMENT division of ARBOR RESEARCH & TRADING, INC., an
Illinois corporation ("HART"), and the Rogers International Raw Materials Fund,
L.P., an Illinois Limited Partnership (the "Fund").
WITNESSETH:
WHEREAS, HART is registered with the Secretary of State of the State of
Illinois as an investment adviser providing investment management, advisory and
research services; and
WHEREAS, the Fund desires to retain HART to provide certain investment
management, advisory and research services with respect to the investing and
trading activities of the Fund; and
WHEREAS, the Fund and Hart desire to set forth herein their entire
agreement respecting such advisory services.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, HART and the Fund agree as follows:
1. The Fund hereby retains HART to act as its investment manager with
respect to the portfolio to be identified by the Fund, including any subsequent
additions thereto of which HART receives written notice, and all other property
acquired as proceeds therefrom or in substitution therefor, subject to the terms
and conditions herein set forth, which taken together will hereinafter be
referred to as the "Portfolio." Any explanation or definition of the Portfolio
shall be set forth on Annex A hereto. HART shall for all purposes herein
provided be deemed to be an independent contractor and, unless otherwise
expressly
provided or authorized, shall have no authority to act for or represent the
Fund in any way or otherwise be deemed an agent of the Fund.
2. It is understood that HART renders investment management, advisory
and research services for clients and customers other than the Fund and the
Portfolio. Nothing in this Agreement shall be deemed to impose upon HART any
obligation to purchase or sell or to recommend for purchase or sale by or for
the Portfolio any security or other property which the officers or employees of
HART may purchase or sell for their own accounts or which HART may purchase or
sell for the account of any other client or customer. The Fund recognizes that
transactions in a specific security may not be accomplished for all client
accounts at the same time or at the same price. Neither HART's acceptance of the
investment objectives referred to herein, nor any other provision of this
Agreement, shall be considered a guaranty that any specific result will be
achieved.
3. HART, in its sole discretion from time to time and without prior
consultation with the Fund, shall make and carry out decisions with respect to:
the acquisition (by purchase, exchange, subscription or otherwise), the holding
or the disposition (by sale, exchange or otherwise) of securities of the
Portfolio wherever located. The discretion that HART is granted herein, however,
is subject always to (a) the investment policies, objectives, limitations or
restrictions of the Fund, as set forth on Annex B hereto, which may be changed
at any time by the Fund in its sole and absolute discretion. The Fund shall
provide prompt written notice to HART in the event of any changes to its stated
investment policies, objectives and limitations. Such notice shall only be
effective after its actual receipt by HART. HART represents and warrants that
(a) in no event will it invest, reinvest or otherwise take any action that
violates in any manner any of the foregoing
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described objectives, restrictions and limitations, and (b) it understands
that the Portfolio is meant to provide a measure of liquidity for the
principal trading activities of the Fund and margin thereon.
4. HART will place orders for the purchase and sale of securities with
a view to receiving the best price and execution for such purchase or sale. HART
in its sole discretion may select the broker-dealers with which transactions for
the Fund may be executed, except that the Fund may designate by written
instrument delivered to HART specific brokers or dealers; provided, however,
that selected broker-dealers shall not be an affiliate of HART or an affiliate
of any Limited or General Partners of the Fund. In selecting brokers or dealers
to execute such orders, either on a principal or agency basis, HART is expressly
authorized to consider the fact that a broker or dealer has been or will be
furnishing research or other information or services that assist HART's
performance of its investment decision making responsibilities generally;
provided that the commission cost is reasonable in relation to the brokerage and
research services received.
5. Following a transaction by HART pursuant to this Agreement, a record
of such transaction will be furnished as soon as practicable to the Fund's
custodian of the assets of the Portfolio, and following the end of each calendar
month a statement showing the transactions made during the month will be
furnished by HART to the Fund and the Fund's custodian as soon as practicable.
6. HART will not hold the Fund's assets. The Fund shall be responsible
for arranging custody services for the Portfolio. At all times, title to and
possession of the assets in the Portfolio including all proceeds realized on the
sale of any such assets, shall
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remain solely in and with the Fund and/or the party acting as custodian for
the Fund with respect to the assets in the Portfolio.
7. HART shall have the responsibility for monitoring those items
requiring action by the Fund with respect to the assets in the Portfolio,
including, but not limited to, rights offerings, calls or redemption of bonds,
or other items with respect to which HART is notified by the custodian of the
assets in the Portfolio. HART is hereby authorized to direct the custodian of
the assets in the Portfolio to take any action with respect to such assets which
HART is authorized to take hereunder, provided, however, that in settling any
transaction initiated or made by HART, the custodian shall follow the settlement
procedures then being used by such custodian for assets held by it as custodian
for the Fund. Any advice or instruction given hereunder by HART to such
custodian shall be in writing, or may be communicated by HART to such custodian
under any other procedure or method approved in advance in writing by the Fund.
8. In addition to the services otherwise provided for herein, HART
agrees to also provide the following services to the Fund:
(1) Monthly statements of account, setting forth all the
securities in the Portfolio and including all purchases and sales made during
the previous month for the Portfolio, plus cash, which statement of account
shall be furnished to the Fund's custodian as well as to the Fund.
(2) To be available by telephone during normal business hours
to discuss any aspect of this Agreement or HART's services or performance
hereunder.
9. The fee to be paid by the Fund to HART for HART's services to be
provided by it hereunder shall be as follows:
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An annual advisory fee amounting to 50 basis points (.0050), computed
quarterly in arrears on the basis of the average month end market value of the
Portfolio under HART's management for the three months comprising such calendar
quarter.
Should this Agreement be terminated prior to the end of a calendar
quarter, the fee owing hereunder shall be pro-rated based upon the number of
days this Agreement was in effect during the quarter in which termination
occurs. Moreover, the applicable market value of the Portfolio for this purpose
shall be the average of: (a) the month-end valuation of the Portfolio for the
months ending between the start of the quarter in which termination occurs and
the effective date of the termination of this Agreement and (b) a valuation as
of the date this Agreement is terminated.
Payment of fees to HART hereunder is also subject to the provisions of
attached Annex C.
10. Except as provided in Section 18 below, termination of this
Agreement may be effected upon 30 days' written notice given by either party.
Upon the giving of notice of termination by either party, HART shall obtain the
consent of the Fund to any liquidation or offset of any securities held in the
Portfolio. Payment for assets purchased and delivery of assets sold after such
termination will be effected in the same manner as if this Agreement was in
force in its entirety.
11. Should the Fund have any concerns or complaints regarding the
services provided under this Agreement, they may be sent in writing to the
address for HART provided below or orally to an officer of HART with follow-up
written notice to the address for HART provided below.
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12. HART may not commit the Fund to any obligation to underwrite any
issue or offer for sale of securities, nor shall HART borrow funds on behalf of
the Fund or commit the Fund to borrow funds.
13. HART shall not cause the Fund to acquire or dispose of units in a
collective investment scheme either operated or advised by HART or an affiliate
or associate of HART.
14. The Portfolio may not contain any securities of which the issue or
offer for sale was underwritten, managed or arranged by HART or an affiliate or
associate of HART.
15. The Fund will provide HART with a certificate of the Fund or other
appropriate authority setting forth the names and specimen signatures of all the
individuals ("Authorized Persons") who are authorized to act on behalf of the
Fund with respect to the Portfolio and, promptly after any change in Authorized
Persons, the Fund shall send HART a revised list of Authorized Persons and
evidence of the authority for such change. At the time of execution of this
Agreement, the individuals executing this Agreement for the Fund are "Authorized
Persons." Hart shall not be liable and shall be fully protected in relying upon
any notice, instruction or other communication that it reasonably believes
(based on the most recent certificate of the Fund received by HART) to have been
given by an Authorized Person.
16. HART, or its representatives or employees, may make unsolicited
calls on the Fund, either through oral or written communication, whenever HART
has information pertaining specifically to the Portfolio or to investments in
general which it determines may be of particular interest to the Fund.
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17. All information and recommendations furnished by one party to the
other party shall at all times be treated in strictest confidence and shall not
be disclosed to third persons except as may be required by law, or except upon
the prior written approval of the other party to this Agreement.
18. HART represents that it is a registered investment adviser with the
Secretary of State of the State of Illinois. HART shall notify the Fund promptly
in writing if at any time this representation is no longer true. HART will also
notify promptly the Fund in writing if at any time it, or any of its directors,
officers or employees, is the subject of any cease and desist order, or is the
subject of any civil or criminal proceeding by the Securities and Exchange
Commission or any other regulatory authority. HART shall promptly the Fund in
writing if more than ten percent (10%) of its equity capital is acquired by any
person or if the senior portfolio manager for the Fund's Portfolio is removed or
resigns for any reason. In the event of any such notice, the Fund may terminate
this Agreement upon not less than two days' notice, rather than the notice
provided for in Section 10 above. In performing its services hereunder, HART
shall comply with all applicable laws, rules and regulations.
19. HART further represents and warrants to the Fund that it is
authorized to enter into this Agreement and that the terms of this Agreement are
enforceable against it.
20. (a) Neither HART, its affiliates nor their respective stockholders,
directors, officers or employees shall be liable to the Fund, its Authorized
Persons or any of their successors or assigns for any error of judgment or law
or for any loss suffered by the Fund in connection with the matters to which
this Agreement relates, except by reason of acts or omissions due to bad faith,
willful misconduct, or gross negligence or for not having
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acted in good faith in the reasonable belief that their actions were taken in,
or not opposed to, the best interests of the Fund.
(b) The Fund shall indemnify and hold harmless HART for
all losses, expenses, liabilities, damages, costs (including any attorney's fees
and expenses), judgments and any amounts paid in any settlement, incurred in the
performance of services rendered to the Fund pursuant to this Agreement,
provided that such liability was not the result of gross negligence, willful
misconduct, or a breach of fiduciary obligations by HART to the Fund (unless the
court or administrative forum in which such action is brought shall determine
that in view of all circumstances of the case HART is entitled to indemnity).
The Fund shall also indemnify and hold harmless HART if such loss, expense,
liability, damage, cost, judgment or settlement arises out of, or is based upon,
an untrue statement or alleged untrue statement or omission or alleged omission,
made in reliance upon and in conformity with information furnished and/or
authorized by the Fund, its Authorized Persons or its agents, for such specific
use by HART.
(c) HART shall indemnify and hold harmless the Fund, its
Authorized Persons, it general and limited partners and their successors and
assigns for all losses, expenses, liabilities, damages and costs (including
attorney's fees and expenses), judgments and any amount paid in any settlement
incurred by them as a result of a breach by HART of any material representation,
warranty, covenant, term or condition of this Agreement or of any Annex
referenced herein.
21. The Fund will provide HART with details of the custodian bank
for the assets of the Portfolio and furnish the relevant account numbers,
contacts, telex and telephone
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numbers. The Fund will keep HART informed of any required changes in custodial
arrangements for the Portfolio.
22. The Fund hereby represents and warrants that it is authorized
to enter into this Agreement and that there are no restrictions on the
investments of the Fund, its management or any activity contemplated by this
Agreement other than as set forth in this Agreement or in any written amendment
hereto. The Fund hereby agrees to indemnify HART and hold them harmless against
any and all losses, costs, damages, claims and liabilities which they may suffer
or incur arising out of a breach of the representations and warranties made by
the Fund in the preceding sentence.
23. Written notices should be addressed to the respective parties
as follows:
If to HART: HART CAPITAL MANAGEMENT
1000 Hart Road
Suite 250
Barrington, IL 60010
Attn: Mr. Richard L. Chambers
with a copy to: James A. Arpaia, Esquire
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street
Suite 2600
Chicago, IL 60601
If to the Fund: Beeland Management Company, L.L.C.
General Partner of the Fund
1000 Hart Road, Suite 260
Barrington, Illinois 60010
Attn: Mr. Richard L. Chambers
with a copy to: Robert P. Bramnik, Esquire
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Suite 3000
Chicago, IL 60606-1229
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24. This Agreement may only be amended in writing, executed by
both parties hereto. This Agreement may not be assigned by either party without
the prior written consent of the other party.
25. This Agreement shall be construed in all respects in
accordance with the laws of Illinois and for this purpose the parties hereby
submit themselves to the jurisdiction of the courts of Illinois.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ROGERS INTERNATIONAL RAW MATERIALS FUND, L.P.
By: BEELAND MANAGEMENT COMPANY L.L.C.
Its: General Partner
By: /s/ Clyde C. Harrison
Clyde C. Harrison
One of its Managing Members
By: /s/ Brian Cornell
Brian Cornell
One of its Managing Members
HART CAPITAL MANAGEMENT (Division of Arbor Research & Trading, Inc.)
By: /s/ Richard L. Chambers
Its: Executive Vice President
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ANNEX A - EXPLANATION OF PORTFOLIO
The Portfolio shall consist of that portion of the investment subscriptions to
the Fund which are not (i) held in any bank account or (ii) deposited with a
Futures Commission Merchant as margin or anticipated margin in conjunction with
the trading activities of the Fund. The Fund may at any time withdraw any asset
in the Portfolio upon written notice to HART.
INITIAL: INITIAL:
- ----------------- ---------------------
ON BEHALF OF HART ON BEHALF OF THE FUND
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ANNEX B
(AS OF MAY 8, 2000)
The Portfolio shall be composed exclusively of "Government securities",
as that term is defined in the Investment Company Act of 1940, as amended.
INITIAL: INITIAL:
- ----------------- ---------------------
ON BEHALF OF HART ON BEHALF OF THE FUND
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ANNEX C
It is expressly understood that the advisory fees to be received by
HART pursuant to Section 9 of this Agreement shall be based solely on monies
actually comprising the Portfolio and which are invested by HART in accordance
with the investment policies and restrictions listed on Annex B to this
Agreement. Such advisory fees shall NOT be based or computed on, among other
things, (a) the proceeds from the offerings for the Fund; (b) any monies
deposited with Futures Commission Merchants (each, an "FCM") as margin (or
anticipated margin needs) for the positions held by the Fund; or (c)
subscription proceeds for the Fund received and held by a subscription agent,
but not yet invested.
The Fund -- not HART -- shall be responsible for determining the amount
of the subscription proceeds to be invested in the Portfolio. However, HART and
three of its principals -- Richard Chambers ("Chambers"), Fred Handler
("Handler") and James Stevens ("Stevens") -- are all individually Members of the
General Partner of the Fund, and therefore have the ability to potentially
influence the Fund's decision regarding the amount of monies to be invested in
the Portfolio.
This ability to potentially influence the Fund's decision regarding the
amount of monies to be invested in the Portfolio creates a conflict of interest
for HART, Chambers, Stevens and Handler, because the advisory fees payable to
HART are based solely on the amount of Fund subscriptions invested in the
Portfolio. Specifically, HART, Chambers, Handler and Stevens all have a
financial incentive to maximize the amount of money in the Portfolio, without
regard to the effect that such amount would have on the performance of the Fund.
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Notwithstanding this incentive, HART, Chambers, Stevens and Handler
each represent and warrant that each will use its/his best independent judgment,
in good faith, with respect to the Fund's decision regarding the amount of Fund
subscriptions to be allocated to the Portfolio without any consideration given
to HART's compensation under this Agreement.
The Fund acknowledges the above-described potential conflict of
interest, but enters into this Agreement in reliance on the representations and
warranties by HART, Chambers, Stevens and Handler.
/s/ Fred Handler /s/ James R. Stevens
Fred Handler James R. Stevens
HART CAPITAL MANAGEMENT
/s/ Richard Chambers By: /s/ Richard Chambers
Richard Chambers Executive Vice-President
Acknowledged for the Fund by its General Partner, Beeland Management Company,
L.L.C.
By: /s/ Clyde Harrison
One of its Managing Members
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