CONSULTING AGREEMENT CONSULTING AGREEMENT (this “Agreement”) made as of __________ 2009, by and between ___________________ , a Delaware limited liability company (the “Company”), and _____________, an individual residing at _________________(the “Consultant”). WITNESSETH WHEREAS, the Company intends to engage the Consultant to provide consulting services pursuant to the terms of this Agreement; and WHEREAS, the Consultant desires to provide such services to the Company pursuant to this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties contained herein, the sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties agree as follows: 1. Term and Termination. The Company hereby engages the Consultant, and the Consultant hereby accepts engagement by the Company, upon the terms and conditions hereinafter set forth herein for the period (the “Consulting Period”) commencing on the date hereof and ending on such date (the “Termination Date”) as either the Company or the Consultant terminates this Agreement by providing written notice to the other party. Either the Company or the Consultant may terminate this Agreement without cause, at any time and for any reason. 2. Services. During the term of this Agreement, the Consultant shall provide investment advice to the Company and assist the Company in (a) overseeing investments by _________________ (Offshore) Fund L.P. and ________________, L.P. (collectively, the “Funds”) in early stage private alternative investment vehicles, typically hedge funds, managed by new or early stage managers and (b) any other matters as may be requested by the Company from time to time in connection with the Company’s business. In addition to such consultations, the Company may request that the Consultant attend meetings of the Company’s Board of Managers, or review, analyze and report on proposed investment opportunities, short-term and long-term investment policies and/or future public and private financings. In performing the services hereunder, the Consultant shall use his best reasonable efforts to promote the business and interests of the Company, the Funds and _______________(Delaware GP), LLC (the “General Partner”). Consultant shall not have the authority to enter into any agreement on behalf of or otherwise bind the Company. 3. Compensation. (a) In consideration for the services to be rendered by the Consultant pursuant hereto, during the Consulting Period, the Company hereby agrees to pay the Consultant a monthly fee of $7,500 (pro rated for any partial calendar month during the Consulting Period), payable in arrears on the last business day of each calendar month during the Consulting Period (the “Consulting Fee”). (b) The Company shall not pay or reimburse the Consultant for business or entertainment expenses incurred by the Consultant in the performance of its services hereunder, except in specific instances, at the discretion of the Company, when the
Consultant makes a reasonable request for reimbursement prior to incurring the expense and the Company approves such expense in advance. (c) Notwithstanding any termination of this Agreement or the Consulting Period, the Consultant shall be entitled to receive from the Company any accrued and unpaid Consulting Fee in connection with services performed hereunder through the Termination Date. The Consultant shall be entitled to no further payments of any kind whatsoever from the Company following termination of this Agreement. 4. Disclaimer of Responsibility for Acts of the Company. In no event shall the Consultant be required by this Agreement to act as the agent of the Company or otherwise to represent or make decisions for the Company. All final decisions with respect to acts of the Company or its affiliates, whether or not made pursuant to or in reliance on information or advice furnished by the Consultant hereunder, shall be those of the Company or such affiliates, and the Consultant shall under no circumstances be liable for any expense incurred or loss suffered by the Company as a consequence of such decisions. 5. Independent Contractor. The Consultant acknowledges that it is entering into this Agreement as an independent contractor and that this Agreement shall not create and shall not be construed to create a relationship of principal and agent, joint venturers, co-partners, employer and employee, master and servant or any similar relationship between the Company and the Consultant. The Consultant shall bear sole responsibility for payment on behalf of the Consultant of any federal, state and local income tax withholding and social security taxes, and for obtaining and payment for workers’ compensation coverage, unemployment insurance, liability insurance, health and/or disability insurance, retirement benefits or other welfare or pension benefits, and/or other payments and expenses. The Consultant understands and agrees that the Consultant is not eligible for, and the Consultant hereby waives, any claim to, wages, health coverage or any other benefits provided to employees of the Company and the Consultant agrees to indemnify and hold harmless the Company from and against any losses and expenses (including, without limitation, court costs and reasonable attorney’s fees), taxes, interest and/or penalties incurred by the Company and in any way related to same. 6. Entire Agreement; Amendment; Waiver. This Agreement and the Confidentiality, Non-Competition and Non-Solicitation Agreement (the “Confidentiality Agreement”), dated as of _______________ , 2009, executed by the Consultant (together with this Agreement, the “Consulting Agreements”) contain the entire understanding of the parties as to the subject matter hereof and fully supersede all prior agreements and understandings between the parties as to such subject matter. The Consulting Agreements may not be amended, supplemented, canceled or discharged, except by a written instrument executed by the party as to whom enforcement is sought. No failure to exercise, and no delay in exercising, any right, power or privilege hereunder shall operate as a waiver thereof. No waiver of any breach of the Consulting Agreements shall be deemed to be a waiver of any preceding or succeeding breach of the Consulting Agreements. 7. Severability. The parties acknowledge that the terms of this Agreement are fair and reasonable at the date signed by them. However, in light of the possibility of a change of conditions or differing interpretations by a court of what is fair and -2-
reasonable, the parties stipulate as follows: if any one or more of the terms, provisions, covenants or restrictions of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated; further, if any one or more of the terms, provisions, covenants, and restrictions contained in this Agreement shall for any reason be determined by a court of competent jurisdiction to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed, by limiting or reducing it, so as to be enforceable to the maximum extent compatible with then applicable law. 8. Notices. All notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or transmitted by facsimile, and addressed to the addresses of the respective parties stated below or to such changed addresses as such parties may fix by notice: To the Company:
New York, New York Attention: Fax No.: To the Consultant:
provided, however, that any notice of change of address shall be effective only upon receipt. Any such notice shall be deemed to have been received on the date delivered to or received at the premises (as evidenced by the date noted on the return receipt, facsimile transmission receipt or courier receipt). 9. Successors and Assigns. This Agreement is personal in its nature and neither of the parties hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or obligations hereunder (except for an assignment or transfer by the Company to a successor as contemplated by the following proviso); provided, however, that the provisions hereof shall inure to the benefit of, and be binding upon, any successor of the Company, whether by merger, consolidation, transfer of all or substantially all of the assets of the Company, or otherwise. 10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflict of laws. 11. Arbitration. The Consultant and the Company agree to submit to arbitration, pursuant to the terms of this Agreement, any claims which arise out of or relate to -3-
this Agreement or the services provided by the Consultant, or payments to be made to the Consultant, as described herein. The Consultant and the Company expressly acknowledge and agree that arbitration shall be the exclusive forum for the adjudication of any claims covered by this Agreement, that each party is waiving the right to file suit in court, and that each party shall be precluded from bringing suit in court with respect to any claim(s) that was or could have been brought pursuant to this Agreement, or as otherwise described in this paragraph. Claims by the Company for injunctive and/or other equitable relief arising out of the use and/or unauthorized disclosure of trade secrets or confidential information, and/or breach of the Confidentiality Agreement are not covered by this Agreement, it being understood and agreed that the Company may seek and obtain relief for such Claims from a court of competent jurisdiction, including, without limitation, injunctive relief. All arbitrations pursuant to this Agreement shall be initiated and conducted in accordance with the rules of the American Arbitration Association. Any arbitration pursuant to this Agreement shall be held in New York County, New York. Costs and attorneys’ fees shall be borne by each party incurring them, and the fees of the arbitrator shall be borne equally by the parties. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of New York, or federal law, or both, as applicable to the claim(s) asserted. In adjudicating any claim arising under a federal statute, the arbitrator shall be bound by any applicable interpretation of such statute by the Supreme Court of the United States and the United States Court of Appeals for the Second Circuit. In adjudicating any claim arising under any state or local statute, the arbitrator shall be bound by any applicable interpretation of such statute issued by the highest court located in such state or locality to have addressed the question of law before the arbitrator. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall have authority to award remedies authorized by the statute(s) pursuant to which any party’s claim(s) arises, including costs and attorneys’ fees, but shall have no authority to award remedies not authorized, or to award damages in excess of any cap imposed by such statute. The arbitrator shall have no authority to award punitive damages with respect to nonstatutory claims, including, without limitation, claims for breach of contract. The Consultant and the Company agree that any award issued by an arbitrator pursuant to this Agreement shall be final and binding on both parties. Any such award may be vacated or modified only to the extent authorized by the Federal Arbitration Act. The Company and the Consultant agree that neither shall file or commence a lawsuit or arbitration in any way related to any claim agreed to be arbitrated under this Agreement, except in accordance with the terms of this Agreement. If either party violates this provision, the other party shall be entitled to dismissal or injunctive relief regarding such lawsuit or arbitration and recovery of all costs and disbursements, losses, and attorneys’ fees related to such other proceeding, if such claim is dismissed, to the extent permitted by law. 12. Headings. The headings in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of this Agreement. 13. Further Assurances. Each party agrees at any time, and from time to time, to execute, acknowledge, deliver and perform, and/or cause to be executed, acknowledged, delivered and performed, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and/or assurances as may be necessary, and/or proper to carry out the provisions and/or intent of this Agreement. 14. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument. 15. Third-Party Beneficiary. The Company and the Consultant agree that the Funds and the General Partner are intended third party beneficiaries of this Agreement and shall be entitled to enforce this Agreement as if signatories hereto.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seals the day and year first above written.
By Name: Title:
Agreed to and Acknowledged by: ____________________________