Anwar et al v. Fairfield Greenwich Limited et al

Filing 363

DECLARATION of Michael Thorne, Esq. in Support re: (66 in 1:09-cv-02222-VM, 360 in 1:09-cv-00118-VM-THK, 54 in 1:09-cv-02410-VM, 76 in 1:09-cv-02269-VM, 10 in 1:09-cv-08500-VM, 62 in 1:09-cv-04031-VM, 107 in 1:09-cv-02588-VM, 80 in 1:09-cv-05650-VM, 87 in 1:09-cv-00134-VM, 103 in 1:09-cv-02366-VM, 74 in 1:09-cv-00301-VM) MOTION to Dismiss., (75 in 1:09-cv-00301-VM, 55 in 1:09-cv-02410-VM, 67 in 1:09-cv-02222-VM, 11 in 1:09-cv-08500-VM, 81 in 1:09-cv-05650-VM, 104 in 1:09-cv-02366-VM, 77 in 1:09-cv-02269-VM, 63 in 1:09-cv-04031-VM, 361 in 1:09-cv-00118-VM-THK, 88 in 1:09-cv-00134-VM, 108 in 1:09-cv-02588-VM) MOTION to Dismiss., (79 in 1:09-cv-05650-VM, 86 in 1:09-cv-00134-VM, 359 in 1:09-cv-00118-VM-THK, 61 in 1:09-cv-04031-VM, 73 in 1:09-cv-00301-VM, 102 in 1:09-cv-02366-VM, 9 in 1:09-cv-08500-VM, 65 in 1:09-cv-02222-VM, 53 in 1:09-cv-02410-VM, 75 in 1:09-cv-02269-VM, 106 in 1:09-cv-02588-VM) MOTION to Dismiss.. Document filed by Fairfield Greenwich Limited, Fairfield Greenwich (Bermuda) Ltd., Fairfield Greenwich Advisors LLC, Yanko Dellaw Schiava, Philip Toub, Lourdes Barreneche, Vianney D'hendecourt, Harold Greisman, Jacqueline Harary, David Horn, Richard Landsberger, David Lipton, Julia Luongo, Mark Mckeefry, Charles Murphy, Santiago Reyes, Andrew Smith, Fairfield Risk Services Ltd., Fairfield Greenwich Limited, Lourdes Barenche, Daniel Lipton, Jacqueline Hararay, Corina Noel Piedrahita, Fairfield Heathcliff Capital LLC, Maria Teresa Pulido Mendoza, Fairfield Greenwich (Bermuda) LTD. (Attachments: #1 Exhibit 1-Part 1 of 2, #2 Exhibit 1-Part 2 of 2 - Exhibit 4, #3 Exhibit 5-6, #4 Exhibit 7, #5 Exhibit 8-9, #6 Exhibit 10, #7 Exhibit 11-12, #8 Exhibit 13-14, #9 Exhibit 15)Filed In Associated Cases: 1:09-cv-00118-VM-THK et al.(Cunha, Mark)

Exhibit 8

Exhibit 9

AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
This Amendcd and Restated lrivestment Management Agreement (the

Agreement"), dated as of October 1, 2002, which amends and restates the Investmen1 Management Agreerncnt dated as of December 3 1,200i (the "Original Investment Management Agrccment"), between Fairfield ScnQ Limited, a Bri+~~sh Virgin Islands corporation (the

"Fund"), having its registered office at Citco B.V.I. Limited, P.O. Box 662,Road Town, Tortola, Bntish Virgin Islands, and Firfield Greenwich Limited, a corporation organized under thc laws
of the Cayman Islands (the "Investment Manager"), having

an ofice at c/o Charles, Adams,

ktchte & Duckworth, Second Floor, Zephyr House, P.O. 709, George Town, Grand Cayman, Cayman Islands, British West Indies. WHEREAS, the Fund and the Investment Manager are p&ies to the Original Investment Management Agreement, and WHEREAS, the Fund and the Investment Manager desire to amend and restate the Onginal Investment Managemcnt Agreement m its entirety on the terms and conditions set forth below,

NOW, THEREFORE, in consideration of thc prcmrscs and of the mutual
covcnants and agreements hereinafter set forth, the parties hereby agree as follows:
1. The Fund hereby retains the investment Manager to manage the investment of

its assets as contemplated by and descnbcd in the Confidenaal Pnvate Placement Memorandum
of the Fund, as amended October 1, 2002, and as such Confidential Pnvate Placement

Memorandum may be M e r amendcd (the "Memorandum"). Such management wilI include, but shall not bc limited to maintaining the account established m the name of the Fund at Bernard L. Madoff Investment Securitics, Inc., a broker dealer registered w t h the Secunttw and
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Exchange Commission, in New York, NCWYork ("BLM"), for the purpose of tradmg in equity secunttes and options on secunties, and to investing assets of the Fund in Non-BLM investment: vehicles (`"on-BLM Investments"). 2. The activities engaged in by the fnvcstment Manager on behalf of the Fund shall be subject to the policies and control of the Fund's Directors. Thc Investment Manager shall use its best efforts to monitor the activities and performance of BLM and any Non-BLM Investments.
3. Within 5 days aAer the end of each week, month or fiscal quarter of the Fund,

as the case may be, thc Investment Manager shall send to thc Fund weekly, monthly and
quarterly valuations orthe account with BLM maintaincd by the Fund and weekly, monthly and quarterly valuations of any Non-BLM Investments. Thc Investment Manager shall cause any and all documentation respecting such account lo bc sent to the Fund. The Investment Manager shall be available at all times, upon reasonable notice, for consultation with the Directors of the Fund in connection with the investments of the Fund.
4. The Investment Manager shall for all purposes be an independent contractor

and not an agent or employee of the Fund, and the hvestment Manager shall have no authority to act for, rcpresent, bind or obligate the Fund cxcept as specificallyprovided herem.
5. All invcstments of the Fund shall at all trmes conform to and be in accordance

with the requirements imposed by: (a) (b) any provisions of applicable taw; and provisions of the Certificatc of Incorporation, Memorandum of Association, and Articles of Association of the Fund, as amended from time to time

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independent public accountants, which shall show the amount properly payable to the Investment Manager under this Agreement, and thc manner of computation thereof. The Investment Manager and the Fund may supplement this Agreement at any time to provide for the deferred payment of all or any portion of the fees to be paid to the Investment Manager pursuant to this Agreement. (b) Notwithstanding the foregoing, in the event that, as at the end of any calendar year, the aggregate amount invested by the Fund in Non-BLM Investments held by the Fund at any time during such year exceeds the aggregate net asset value of the Fund's interests in such Non-BLM Investments at year end and the net amounts rcalized duing the year of such Non-BLM Investments (before rcducing the aggregate net asset value of the Fund's interests at year end in such Non-BLM Investments by the Fund's share of fees payable to the portfolio managers of such Non-BLM Invcstment) (such excess being the "Non-BLM Investment Loss"), the Investment Manager will offset and reduce its Performance Fee payable at such year end and

any subsequent quarter end by a amount equal to such Non-BLM Investment Loss. The portion n

of the Performance Fce that ISoffset and reduced by the Non-BLM Investment Loss nonetheless
wdl be paid to the Investment Manager by the Fund in the event that the Non-BLM Investment Loss is, in part or in whole, subsequently rccouped by thc same or other through the performance
of Non-BLM Investments. 8. The Investment Manager will render the services set forth in this Agreement

at its own expense, including without limitation, the salaries of employees necessary for such services, the rent and utilities for the facilities provided, and other advisory and operating expenses, exceptas assumedbytheFundinparagraph6,above;provided, however, thatthe Fund shall pay the Investment Manager an amount equal to one-fortieth o f one percent (0.025%)
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of the net asset value of thc Fund as of the last day of each calcndar quarter in order to reimburse

the investment M anager forb earing certain o f t he Fund`s i ntemal accounting and operational expenses. Payment ofthis amount shall be made with each p a p e n t o f the Performance Fee.

9. (a) The lnvestmcnt Manager, its directors, officers and cmployees, agents and
counsel (each, an "Investment Manager Indemnitee"), shall not be liable to the Fund for any efmr
of judgment or for any loss suffered by the Fund in conncction with the subject matter of this

Agreement, except loss resulting from willful misfeasance, bad faith or gross negligence in the performance of the Investment Manager`s obligations and duties, or by reason of the Investment Manager's reckless disregard of their obligations and duties hereunder. (b) Each Investmcnt Manager Indemnitee shall not be subject to, and the Fund shall indemnify to the fullest extent permitted by law and hold each Investment Manager Indemnitee free and harmless from and against, any and all claims, demands; liability or expenses for

any loss suffered by the Fund arising out or any act or omission of

an Investment Manager Indemnitcc relating to the Fund, except to
the extcnt such act or omission constttutes willful misconduct, o r

reckless disregard o f the duties of the Investment Manager or on
thc part of the Investment Manager Indemnitee.
IO. The Investment Manager and each of its respective shareholders, directors,

employccs and officers, may engage simultaneously with their investment management activities

on behalf of the Fund in other businesses, and may render services similar to those descnbed in
this Agreement for other individuals, companies, trusts or persons, and shall not by reason of

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engaging in such other busincsses or rendering of services for others be deemed to be acting in conflict with the intercsts of the Fund. 11. This Agreement shall be in full force and effect on the date of this Agreement and shall continue until the termination by either party on written notice ten days prior to the end of any calendar quarter. During the period between the date when notice of termination is deemed given hereunder and the effective datc of termination, the tights, powers and duties of the Investment Manager shall remain in full force and effect but shall be subject to the right of the Fund to direct the iiquidation of any investmcnt, which dircction shall be given in Writing or
by facsimile. The Fund reprcsents, covenants and agrces that its decision to terminate this

Agreement shall require a unanimous affirmative vote of directors for so long as the Fund has three or less directors and a vote of 75% of the directors casting votes at such time as the Fund has more than thrcc directors. 12. Any notice requircd to be given hereunder shall be i writing and shall be sent n

by registered or certified air mail, postagc prepaid, with return receipt quested, or by means of
facsimile or other wire transmission (with request for assurance of receipt in a manner typical with respect to communications of that typc), to the Fund and Investment Manager at the respective addresses indicated in the Memorandum, or to such other addresses as the parties may hereafter direct in writing. The effective date of any notice given by mail shall be ten days after the date of mailing thereof; any notice to any party having a facsimile number for the receipt at its address for notice hercunder of messages by transmission by facsimile shall be deemed given when transmitted by facsimile addressed to such party at such facsimile number.

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13. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, and shall not be modified,except in writing, nor assigned by either party without the consent ofthe other party.
14. This Agreement shall be construed and governed in accordance with the laws

of the Stale of New York, without regard to the principles of conflicts of laws thereof.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be cxccuted as of the day first above w i t n rtc. FAIRFIELD SENTRY LIMITED

Name: Title: Director FAIRFIELD GREENWICH LIMITED