MANAGED ACCOUNT AGREEMENTAccount Control Agreement |
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COMPUCREDIT CORP | Horizon Fund III, Inc | United Capital Asset Management LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.24
MANAGED ACCOUNT AGREEMENT
This Managed Account Agreement (this “Agreement”) is entered into as of September 1, 2006, by and between Horizon Fund III, Inc., a Nevada corporation (the “Client”), and United Capital Asset Management LLC, a Florida limited liability company (the “Adviser”).
WITNESSETH:
WHEREAS, the Client desires to engage the services of the Adviser in connection with the management of certain of its investment activities and to work as its investment adviser with respect to such investment activities, and the Adviser is willing to furnish its investment advisory and portfolio management services to the Client.
NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the sufficiency of which is hereby acknowledged, the parties hereby mutually agree as follows:
1. Appointment. Subject to the terms, provisions and conditions set forth herein, the Client hereby appoints and engages the Adviser to, and the Adviser hereby agrees to, provide certain non-discretionary and discretionary investment advisory and portfolio management services to the Client. The Client requests the Adviser to make certain non-discretionary and discretionary investment decisions with the Client’s funds in the account specified for such purposes in Exhibit A and such other accounts as may be designated by the Client in writing (collectively, the “Account”) pursuant to and in accordance with a set of guidelines attached hereto and incorporated herein by reference as Exhibit B (the “Guidelines”). The Adviser will have full power and authority to supervise and direct the investment of the assets in the Account in accordance with the Guidelines, including, without limitation, the power and authority to buy, sell, exchange, convert and otherwise effect transactions in any stocks, bonds, options, warrants, futures or other securities, all without prior consultation with the Client, except as may otherwise be provided in the Guidelines. In addition, the Client hereby appoints the Adviser as the Client’s attorney-in-fact, which appointment is coupled with an interest, for purposes of exercising the foregoing power and authority and discharging the Adviser’s obligations under this Agreement. The Client acknowledges that there can be no assurance that the Adviser will be successful in pursuing the Client’s investment objectives or that the Adviser’s strategies will be successful. The Client shall also notify the Adviser in writing of any specific restrictions governing the Account under the current or future laws of any jurisdiction applicable to Client or by virtue of the terms of any other contract or instrument purporting to bind the Client or the Adviser.
2. Nature of Investments. The nature of investments will be as set forth in the Guidelines. The investment may be in equity and debt securities, monetary instruments and other investment instruments and may be highly speculative and subject to risks, including, without limitation, the risk of losing the entire value of the investment. The Client has had the opportunity to discuss and consult with such advisers as it has deemed necessary in connection with the risks involved with the Account, and hereby acknowledges and represents that it fully
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understands such risks. It is intended that the Adviser will utilize its investment expertise and services to manage the Account. The Adviser may, however, if the Adviser considers it advisable in its judgment, to contract out for certain investment advice on behalf of the Client at the Adviser’s expense.
3. Principal and Cross Trades. The Client understands that the Adviser may engage in principal and cross trades (i.e., securities transactions wherein the Adviser or broker-dealers are representing, as agents, both the Client and the counterparty to a securities transaction). The Client hereby appoints Spectrum Global Fund Administration (“Spectrum”) as its agent and representative for purposes of providing consent to principal transactions, as contemplated under Section 206(3) of the Investment Advisers Act of 1940, as amended. The Client can (i) terminate this appointment of Spectrum on two days’ written notice to the Adviser and Spectrum and (ii) appoint any other party, including itself or any affiliate, to serve in this capacity.
4. Custody; Transaction Procedures. The Client has appointed or will appoint a custodian (the “Custodian”) to take and maintain possession of all the assets in the Account and will provide the Adviser with a true and complete copy of each agreement with the Custodian, the names of persons authorized to act on behalf of the Custodian and such other information as the Adviser may request. Neither the Adviser nor any affiliate (as such term is defined in the rules and regulations promulgated under the Securities Act of 1933, as amended) will be the Custodian. The Adviser will have no liability with respect to custodial arrangements or the acts, conduct, or omissions of such Custodian. The Adviser may issue instructions to the Custodian as may be appropriate in connection with the settlement of transactions initiated by the Adviser pursuant to the authority conveyed by this Agreement. The Adviser will be under no duty to supervise or direct the investment of any assets that are not in the Account in the custody of the Custodian or readily available for delivery to the Custodian by the settlement date of any proposed transaction.
5. Brokerage. Adviser will enter orders for securities transactions in the Account with such brokers, dealers or issuers as the Adviser may select. Orders will be entered for execution on such markets, at such prices, and at such rates of broker-dealer compensation as the Adviser deems appropriate. In selecting brokers or dealers, and in determining appropriate level of broker-dealer compensation, the Adviser will seek to obtain the lowest commission, but will also take into account not only the available prices and rates of broker-dealer compensation, but also other relevant factors, including, without limitation, execution and operational capabilities, reputation, availability of margin or other leverage, and the range and quality of research and other services provided by such brokers or dealers that are expected to provide the Adviser with lawful and appropriate assistance in the Adviser’s investment decision-making process. The Client understands that, under some circumstances, the broker-dealer compensation it pays may exceed the compensation that could be obtained from another broker or dealer, particularly if such other broker or dealer were not providing research or other services. The Adviser may enter orders with brokers or dealers with which the Adviser is affiliated, and the Client acknowledges that such brokers or dealers may profit from such transactions by charging their usual and customary rates of compensation, including mark-ups or mark-downs on principal transactions. If the Client was referred to the Adviser by a broker or dealer, Client understands that the Adviser could have a conflict of interest in negotiating broker-dealer compensation with such broker or dealer on the Client’s behalf.
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6. Account Service Fees.
(a) The Adviser will receive the following fees from the Client:
(i) A fee equal to 1/12 of 2.00% of the Net Asset Value of the Account calculated as of the last business day of each calendar month (the “Management Fee”). The Management Fee shall accrue monthly and be payable quarterly in arrears no later than the fifth business day following the Client’s receipt of a report from the Adviser calculating the Net Asset Value of the Account as of the last business day of each of the three months in the quarter and the corresponding Management Fee. The Management Fee may be waived, shared or rebated, at the discretion of the Adviser; and
(ii) A fee equal to 20% of the amount by which (i) the Aggregate Net Capital Appreciation of the Account exceeds (ii) the Account’s remaining Previous High Peak (the “Performance Fee”). The Performance Fee shall be payable quarterly in arrears and shall be paid to the Adviser promptly but no later than the tenth business day following the Client’s receipt of a report from the Adviser calculating such Performance Fee.
(b) “Aggregate Net Capital Appreciation” shall mean the excess, if any, of the Account’s Net Capital Appreciation for such Performance Period over the sum of the Account’s Net Capital Depreciation for such Performance Period and any Net Capital Depreciation for each prior consecutive Performance Period for which no Performance Fee was paid.
(c) “Aggregate Net Capital Depreciation” for any given Performance Period shall mean the excess, if any, of the Account’s Net Capital Depreciation for such Performance Period over the sum of the Account’s Net Capital Appreciation for such Performance Period.
(d) “Loss Recovery Amount” for the Account shall mean, the amount, if any, of Aggregate Net Capital Depreciation for the applicable Loss Recovery Period, if any, adjusted to reflect any withdrawals from the Account.
(e) “Loss Recovery Period” for the Account shall mean a period of time that includes the present Performance Period for the Account and each prior consecutive Performance Period for the Account for which no Performance Fee was paid. Performance Periods preceding a Performance Period for which a Performance Fee was paid shall not be included in the Account’s Loss Recovery Period.
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(f) “Net Asset Value” shall be determined in accordance with the United Capital Asset Management Pricing Policies, dated December 2005 (the “Pricing Policies”), a copy of which is attached hereto as Exhibit C. During the term of this Agreement, the Pricing Policies shall be used not only to value the Account, but also to value the assets of Horizon Fund, L.P. and Horizon ABS Fund, L.P.
(g) “Net Capital Appreciation” shall mean the increase in the Net Asset Value of the Account, including unrealized gains and losses, from the beginning of a Performance Period to the end of such Performance Period determined (except for certain reserves that may be established or abolished for estimated or accrued expenses and for unknown or contingent liabilities) in accordance with generally accepted accounting principles.
(h) “Net Capital Depreciation” shall mean the decrease in the Net Asset Value of the Account, including unrealized gains and losses, from the beginning of a Performance Period to the end of such Performance Period determined (except for certain reserves that may be established or abolished for estimated or accrued expenses and for unknown or contingent liabilities) in accordance with generally accepted accounting principles.
(i) A “Performance Period” with respect to the Account shall mean the period of time for which a Performance Fee was paid. The first Performance Period shall begin on the date hereof and end on September 30, 2006. Each successive Performance Period shall be a calendar quarter. In the quarter that the Account is terminated, the Performance Period shall end on the date of termination.
(j) “Previous High Peak” shall mean the Account’s Loss Recovery Amount for such Account’s Loss Recovery Period.
7. Distributions and Withdrawals. Unless the Client notifies the Adviser otherwise in writing, distributions of any realized gains or profits will be reinvested in the Account. The Client may withdraw any cash and cash equivalents from the Account upon five (5) days’ prior written notice. The Client may withdraw assets (other than cash or cash equivalents) from the Account upon thirty (30) days’ written notice prior to the end of the month that the Client intends to effect such withdrawal, provided that (i) the Adviser can waive all or part of such notice period with respect to all or part of the proposed withdrawal and (ii) the Client, in its sole discretion, can extend the date of withdrawal. In the event that the Client notifies the Adviser that it intends to withdraw assets (other than cash and cash equivalents) from the Account, the Adviser shall have the option to monetize such assets and provide cash and/or cash equivalents in lieu of such assets to the Client, provided that the value of the cash and/or cash equivalents disbursed to the Client equals or exceeds the Net Asset Value of such assets according to the monthly report (provided in accordance with Section 8) for the month in which the withdrawal notice was provided (the “Withdrawal Value”). Notwithstanding the previous sentence, within ten (10) days of the notice of withdrawal, the Adviser shall have the option to request one fifteen (15) day extension of the withdrawal date if it requires the additional time in
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order to monetize the assets to be withdrawn at the Withdrawal Value. In the event that the Client refuses to grant such extension request, the Client acknowledges that the amount of cash or cash equivalents distributed to the Client in lieu of the assets to be withdrawn may be less than the Withdrawal Value.
8. Reporting Services to Client. As soon as reasonably practicable after the end of each calendar month, the Adviser will provide the Client with a full account statement reflecting the cash and market values of securities in the Account computed as of the last business day of such month. The Adviser will also provide the Client with detailed trading confirmations, including the following information for the securities: general description, face amount, principal amount and accrued interest amount. The Adviser will also provide the Client with such other reports as the Client may reasonably request. The Adviser will send these reports to the Client at the address set forth below in Section 23 or such other address as the Client may request in writing. The Client will provide, or instruct the Custodian to provide, the Adviser with such reports as to the status of the Account as the Adviser may reasonably request from time to time. The Client acknowledges that the Adviser will not be responsible for the accuracy of any information disclosed in any such report provided to the Adviser by any third party.
9. Voting Of Securities. The Adviser will not be required to take any action or render any advice with respect to the voting of securities in the Account unless authorized in writing by the Client.
10. Taxes/Withholding. The Adviser shall make no withholding for the Client for any jurisdiction. Any withholding made from the results of investment management of pooled funds in custody of the Adviser will be made only because local jurisdictions might so require it on sales or dividends from local securities, banking or investment instruments.
11. Confidentiality. The Client shall treat as confidential any and all information, recommendations and advice provided by or at the direction of, as well as actions undertaken by or at the direction of, the Adviser, furnished to the Client in connection with the Adviser’s duties under the Agreement, except that the aforesaid information need not be treated as confidential if required to be disclosed under applicable law, if generally available to the public through means other than by disclosure by the Client, or if available from a source other than the Adviser.
12. Non-Exclusive Relationship. The Client recognizes and acknowledges that the Adviser performs investment management services for various clients, which may include investment companies, limited partnerships and other investment vehicles. To the extent practicable, the Adviser will attempt to allocate investment opportunities among its various clients, including Client, on a basis that is, over time, fair and equitable to all clients. Client agrees that the Adviser may give advice and take action with respect to its other clients that may differ from advice given or the timing or the nature of action taken with respect to the Account. The Adviser will have no obligation to purchase or sell for the Account, or to recommend for purchase or sale by the Account, any security that the Adviser, its principals, affiliates, or employees may purchase for themselves or for other clients. Client recognizes that transactions in a specific security may not be accomplished for all clients’ accounts at the same time or at the same price. Notwithstanding the foregoing, the Adviser’s engagement hereunder vis-à-vis its services to certain of the Adviser’s other clients shall be governed by Exhibit B hereto.
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