APPENDIX C
INVESTMENT ADVISORY
AGREEMENT
AGREEMENT
made as of this ___ day of ______, 2009 by and between Tortoise Capital
Resources Corporation, a Maryland corporation having its principal place of
business in Leawood, Kansas (the Company), and Tortoise Capital Advisors,
L.L.C., a Delaware limited liability company having its principal place of
business in Leawood, Kansas (the Advisor).
WHEREAS,
the Company is a newly organized, non-diversified management investment company
that is not at this time registered under the Investment Company Act of 1940, as
amended (the 1940 Act);
WHEREAS, the Advisor is registered
under the Investment Advisers Act of 1940, as amended (the Advisers Act), as
an investment advisor and engages in the business of acting as an investment
advisor;
WHEREAS, the Company and the Advisor
desire to enter into an agreement to provide for investment advisory services to
the Company upon the terms and conditions hereinafter set forth; and
NOW THEREFORE, in consideration of
the mutual covenants herein contained and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties agree as
follows:
1.
Appointment of Advisor.
The
Company appoints the Advisor to act as manager and investment advisor to the
Company for the period and on the terms herein set forth. The Advisor accepts
such appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2.
Duties of the Advisor.
Subject
to the overall supervision and review of the Board of Directors of the Company
(Board), the Advisor will regularly provide the Company with investment
research, advice and supervision and will furnish continuously an investment
program for the Company, consistent with the investment objective and policies
of the Company. The Advisor will provide, on behalf of the Company, any
managerial assistance requested by the portfolio companies of the Company. The
Advisor will determine from time to time what securities shall be purchased for
the Company, what securities shall be held or sold by the Company and what
portion of the Companys assets shall be held uninvested as cash or in other
liquid assets, subject always to the provisions of the Companys Articles of
Incorporation, Bylaws, Confidential Offering Memorandum for the initial private
offering of its common shares (the Memorandum), and any subsequent
registration statement of the Company under the 1940 Act and under the
Securities Act of 1933 (the 1933 Act) covering the Companys shares, as filed
with the Securities and Exchange Commission (the Commission), as any of the
same may be amended from time to time, and to the investment objectives of the
Company, as each of the same shall be from time to time in effect, and subject,
further, to such policies and instructions as the Board may from time to time
establish. To carry out such determinations, the Advisor will exercise full
discretion and act for the Company in the same manner and with the same force
and effect as the Company itself might or could do with respect to purchases,
sales or other transactions, as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such purchases, sales
or other transactions. Without limiting the generality of the foregoing, the
Advisor shall, during the term and subject to the provisions of this Agreement,
(i) determine the composition of the portfolio of the Company, the nature and
timing of the changes therein and the manner of implementing such changes; (ii)
identify, evaluate and negotiate the structure of the investments made by the
Company; (iii) perform due diligence on prospective portfolio companies; (iv)
close and monitor the Companys investments; (v) provide the Company with such
other investment advisory, research and related services as the Company may,
from time to time, reasonably require for the investment of its funds.
3.
Administrative Duties of the Advisor.
The
Advisor agrees to furnish office facilities and clerical and administrative
services necessary to the operation of the Company (other than services provided
by the Companys custodian, accounting agent, administrator, dividend and
interest paying agent and other service providers). The Advisor is authorized to
conduct relations with custodians, depositaries, underwriters, brokers, dealers,
placement agents, banks, insurers, accountants, attorneys, pricing agents, and
other persons as may be deemed necessary or desirable. To the extent requested
by the Company, the Advisor shall (i) oversee the performance of, and payment of
the fees to, the Companys service providers, and make such reports and
recommendations to the Companys Board of Directors (the Board) concerning
such matters as the parties deem desirable; (ii) respond to inquiries and
otherwise assist such service providers in the preparation and filing of
regulatory reports, proxy statements, shareholder communications and the
preparation of Board materials and reports; (iii) establish and oversee the
implementation of borrowing facilities or other forms of leverage authorized by
the Board; and (iv) supervise any other aspect of the Companys administration
as may be agreed upon by the Company and the Advisor. The Company shall
reimburse the Advisor or its affiliate for all out-of-pocket expenses incurred
in providing the services set forth in this Section 3.
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4.
Delegation of Responsibilities.
The
Advisor is authorized to delegate any or all of its rights, duties and
obligations under this Agreement to one or more sub-advisors, and may enter into
agreements with sub-advisors, and may replace any such sub-advisors from time to
time in its discretion, in accordance with the 1940 Act, the Advisers Act, and
rules and regulations thereunder, as such statutes, rules and regulations are
amended from time to time or are interpreted from time to time by the staff of
the Commission, and if applicable, exemptive orders or similar relief granted by
the Commission, and upon receipt of approval of such sub-advisors by the Board
and by shareholders (unless any such approval is not required by such statutes,
rules, regulations, interpretations, orders or similar relief). The Company
hereby acknowledges that the Advisor has retained Kenmont Investments
Management, L.P. (Kenmont) to provide certain services for the benefit of the
Company. The Advisor shall compensate Kenmont for the services so provided. The
Advisor hereby indemnifies and agrees to hold harmless the Company from any
obligation to pay Kenmont or any other sub-advisor or reimburse Kenmont or any
other sub-advisor for any fees or expenses incurred by such party in providing
services to or for the benefit of the Company. The Company hereby agrees to
indemnify and hold harmless Kenmont or any other sub-advisor for any claim
against any such person based on information provided in the Offering Memorandum
of the Company dated September 13, 2005, the Supplement to such Offering
Memorandum dated November 21, 2005, or the Closing Supplement to such Offering
Memorandum dated December 1, 2005 (collectively, the Disclosure) other than
any claim resulting from information provided by such indemnified party for
inclusion in the Disclosure.
5.
Independent Contractors.
The
Advisor and any sub-advisors shall for all purposes herein be deemed to be
independent contractors and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Company in any way or
otherwise be deemed to be an agent of the Company.
6.
Compliance with Applicable Requirements.
In carrying out its obligations
under this Agreement, the Advisor shall at all times conform to:
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a.
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all applicable provisions of the
1940 Act and the Advisers Act and any applicable rules and regulations
adopted thereunder;
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b.
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the provisions of the Memorandum
or any subsequent registration statement of the Company, as the same may
be amended from time to time under the 1933 Act, including without
limitation, the investment objectives set forth therein;
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c.
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the provisions of the Companys
Articles of Incorporation, as the same may be amended from time to
time;
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d.
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the provisions of the Bylaws of
the Company, as the same may be amended from time to time
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e.
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all policies, procedures and
directives adopted by the Board; and
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f.
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any other applicable provisions
of state, federal or foreign law.
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7.
Policies and Procedures.
The
Advisor has adopted and implemented written policies and procedures reasonably
designed to prevent violation of the Federal Securities laws by the Advisor. The
Advisor shall provide the Company, at such times as the Company shall reasonably
request, with a copy of such policies and procedures and a report of such
policies and procedures; such report shall be of sufficient scope and in
sufficient detail as may reasonably be required to comply with Rule 38a-1 under
the 1940 Act and to provide reasonable assurance that any material inadequacies
would be disclosed by such examination, and, if there are no such inadequacies,
the reports shall so state.
8.
Brokerage.
The
Advisor is responsible for decisions to buy and sell securities for the Company,
broker-dealer selection, and negotiation of brokerage commission rates. The
Advisors primary consideration in effecting a security transaction will be to
obtain the best execution. In selecting a broker-dealer to execute a particular
transaction, the Advisor will take the following into consideration: the best
net price available; the reliability, integrity and financial condition of the
broker-dealer; the size of and the difficulty in executing the order; and the
value of the expected contribution of the broker-dealer to the investment
performance of the Company on a continuing basis. Accordingly, the price to the
Company in any transaction may be less favorable than that available from
another broker-dealer if the difference is reasonably justified by other aspects
of the execution services offered.
Subject
to such policies as the Board may from time to time determine, the Advisor shall
not be deemed to have acted unlawfully, or to have breached any duty created by
this Agreement or otherwise, solely by reason of its having caused the Company
to pay a broker or dealer that provides brokerage and research services to the
Advisor an amount of commission for effecting a Company investment transaction
in excess of the amount of commission another broker or dealer would have
charged for effecting that transaction, if the Advisor determines in good faith
that such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Advisors overall
responsibilities with respect to the Company and to other clients of the Advisor
as to which the Advisor exercises investment discretion. The Advisor is further
authorized to allocate the orders placed by it on behalf of the Company to such
brokers and dealers who also provide research or statistical material or other
services to the Company, the Advisor or to any sub-advisor. Such allocation
shall be in such amounts and proportions as the Advisor shall determine and the
Advisor will report on said allocations regularly to the Board indicating the
brokers to whom such allocations have been made and the basis
therefore.
9.
Books and Records.
The
Advisor will maintain complete and accurate records in respect of all
transactions relating to the Companys portfolio. The Advisor will keep or will
cause to be kept records in respect of all such portfolio transactions executed
on behalf of the Company. To the extent permitted by applicable law, the Advisor
shall provide access to its books and records relating to the Company as the
Company may reasonably request. The Advisor shall have access at all reasonable
times to books and records maintained for the Company to the extent necessary
for the Advisor to comply with all applicable securities or other laws to which
it is subject, and further provided that the Company shall produce copies of
such records and books whenever reasonably required to do so by the Advisor for
the purpose of legal proceedings or dealings with any governmental or regulatory
authorities or for its internal compliance procedures.
10.
Compensation.
For the
services, payments and facilities to be furnished hereunder by the Advisor, the
Advisor shall receive from the Company the following compensation:
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a.
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Base Management
Fee.
The Advisor shall receive quarterly a base management fee (the
Base Management Fee) equal to .375% (1.50% annualized) of the Companys
average monthly Managed Assets for such quarter. Managed Assets means
the total assets of the Company (including any assets purchased with or
attributable to any borrowed funds) minus accrued liabilities other than
(1) deferred taxes and (2) debt entered into for the purpose of leverage.
Accrued liabilities are expenses incurred in the normal course of the
Companys operations. The Base Management Fee shall be calculated
quarterly and paid quarterly in arrears within thirty (30) days of the end
of each fiscal quarter. The Companys Managed Assets shall be computed in
accordance with any applicable policies and determinations of the Board of
Directors. In case of the initiation or termination of the Agreement
during any fiscal quarter, the Base Management Fee for that quarter shall
be reduced proportionately on the basis of the number of calendar days
during which the Agreement is in effect, and the fee shall be computed
upon the basis of the average Managed Assets for the business days the
Agreement is in effect for that fiscal quarter.
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b.
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Incentive
Fee.
The Advisor shall receive an incentive fee (the Incentive Fee).
The Incentive Fee shall consist of two parts, as follows:
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(i)
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Investment Income
Fee.
The Advisor shall receive an investment income fee (the
Investment Income Fee) equal to 15% of the excess, if any, of the
Companys Net Investment Income for the fiscal quarter over a quarterly
hurdle rate equal to 2% (8% annualized), multiplied, in either case, by
the Companys average monthly Net Assets for the quarter. Net Assets
means the Managed Assets less deferred taxes, debt entered into for the
purposes of leverage and the aggregate liquidation preference of
outstanding preferred shares. Net Investment Income means interest
income (including accrued interest that we have not yet received in cash),
dividend and distribution income from equity investments (but excluding
that portion of cash distributions that are treated as a return of
capital), and any other income (including any fees such as commitment,
origination, syndication, structuring, diligence, monitoring, and
consulting fees or other fees that the Company is entitled to receive from
portfolio companies) accrued during the fiscal quarter, minus the
Companys operating expenses for such quarter (including the Base
Management Fee, expenses payable pursuant to Section 11 below, any
interest expense, any accrued income taxes related to net investment
income, and dividends paid on issued and outstanding preferred stock, if
any, but excluding the Incentive Fee payable hereunder). Net Investment
Income also includes, in the case of investments with a deferred interest
or income feature (such as original issue discount, debt or equity
instruments with a payment-in-kind feature, and zero coupon securities),
accrued income that the Company has not yet received in cash. Net
Investment Income does not include any realized capital gains, realized
capital losses, or unrealized capital appreciation or depreciation. The
Investment Income Fee shall be calculated and payable quarterly in arrears
within thirty (30) days of the end of each fiscal quarter, with the fee
first accruing from the first anniversary of the day the Company receives
the proceeds from its initial offering of common shares (the Commencement
of Operations). The Investment Income Fee calculation shall be adjusted
appropriately on the basis of the number of calendar days in the first
fiscal quarter the fee accrues or the fiscal quarter during which the
Agreement is in effect in the event of termination of the Agreement during
any fiscal quarter.
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(ii)
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Capital Gains
Fee.
The Advisor shall receive a capital gains fee (the Capital Gains
Fee) equal to: (A) 15% of (i) the Companys net realized capital gains
(realized capital gains less realized capital losses) on a cumulative
basis from the Commencement of Operations to the end of each fiscal year,
less (ii) any unrealized capital depreciation at the end of such fiscal
year, less (B) the aggregate amount of all Capital Gains Fees paid to the
Advisor in prior fiscal years. The calculation of the Capital Gains Fee
will not include any capital gains that result from that portion of any
scheduled periodic distributions made possible by the normally recurring
cash flow from the operations of portfolio companies (Expected
Distributions) that are characterized by the Company as return of capital
for U.S. generally accepted accounting principles purposes. In that
regard, any such return of capital will not be treated as a decrease in
our cost basis of an investment for purposes of calculating the Capital
Gains Fee. This does not apply to any portion of any distribution from a
portfolio company that is not an Expected Distribution. Except as set
forth in the last sentence of this paragraph, the Capital Gains Fee shall
be calculated and payable annually within thirty (30) days of the end of
each fiscal year. For the purposes of this paragraph, realized capital
gains on a security will be calculated as
the excess of the net amount realized from the sale or other disposition
of such security over the adjusted cost basis for the security. Realized
capital losses on a security will be calculated as the amount by which the
net amount realized from the sale or other disposition of such security is
less than the adjusted cost basis of such security. Unrealized capital
depreciation on a security will be calculated as the amount by which the
Companys adjusted cost basis of such security exceeds the fair value of
such security at the end of a fiscal year. All fiscal year-end valuations
will be determined by the Company in accordance with generally accepted
accounting principles, the 1940 Act (even if such valuation is made prior
to the date on which the Company has elected to be regulated as a business
development company), and the policies and procedures of the Company to
the extent consistent therewith. If the Companys shares of common stock
become listed on any national securities exchange or automated dealer
quotation system, then the Advisor shall use at least 25% of any Capital
Gains Fee received on or prior to the second anniversary of the
Commencement of Operations to purchase the Companys common stock in the
open market. In the event this Agreement is terminated, the Capital Gains
Fee calculation shall be undertaken as of, and any resulting Capital Gains
Fee shall be paid within thirty (30) days of, the date of
termination.
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C-4
The
Advisor may, from time to time, waive or defer all or any part of the
compensation described in this Section 10. The parties do hereby expressly
authorize and instruct the Companys administrator, or its successors, to
calculate the fee payable hereunder and to remit all payments specified herein
to the Advisor.
11.
Expenses of the Advisor.
The
compensation and allocable routine overhead expenses of all investment
professionals of the Advisor and its staff, when and to the extent engaged in
providing investment advisory services required to be provided by the Advisor
under Section 2 hereof, will be provided and paid for by the Advisor and not by
the Company. It is understood that the Company will pay all expenses other than
those expressly stated to be payable by the Advisor hereunder, which expenses
payable by the Company shall include, without limitation the
following:
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(i)
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other than as set
forth in the first sentence of this Section 10 above, expenses of
maintaining the Company and continuing its existence and related overhead,
including, to the extent such services are provided by personnel of the
Advisor or its affiliates, office space and facilities and personnel
compensation, training and benefits,
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(ii)
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commissions, spreads,
fees and other expenses connected with the acquisition, holding and
disposition of securities and other investments including placement and
similar fees in connection with direct placements entered into on behalf
of the Company,
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(iii)
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auditing, accounting
and legal expenses,
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(iv)
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taxes and
interest,
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(v)
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governmental
fees,
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(vi)
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expenses of listing
shares of the Company with a stock exchange, and expenses of issue, sale,
repurchase and redemption (if any) of interests in the Company, including
expenses of conducting tender offers for the purpose of repurchasing
Company securities,
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(vii)
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expenses of
registering and qualifying the Company and its securities under federal
and state securities laws and of preparing and filing registration
statements and amendments for such purposes,
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(viii)
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expenses of
communicating with shareholders, including website expenses and the
expenses of preparing, printing, and mailing press releases, reports and
other notices to shareholders and of meetings of shareholders and proxy
solicitations therefor,
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(ix)
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expenses of reports to
governmental officers and commissions,
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(x)
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insurance
expenses,
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(xi)
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association membership
dues,
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(xii)
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fees, expenses and
disbursements of custodians and subcustodians for all services to the
Company (including without limitation safekeeping of funds, securities and
other investments, keeping of books, accounts and records, and
determination of net asset values),
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(xiii)
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fees, expenses and
disbursements of transfer agents, dividend and interest paying agents,
shareholder servicing agents and registrars for all services to the
Company,
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(xiv)
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compensation and
expenses of directors of the Company who are not members of the Advisors
organization,
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(xv)
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pricing, valuation,
and other consulting or analytical services employed in considering and
valuing the actual or prospective investments of the Company,
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(xvi)
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all expenses incurred
in leveraging of the Companys assets through a line of credit or other
indebtedness or issuing and maintaining preferred shares,
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(xvii)
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all expenses incurred
in connection with the organization of the Company and any offering of
common shares, and
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(xviii)
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such non-recurring
items as may arise, including expenses incurred in litigation, proceedings
and claims and the obligation of the Company to indemnify its directors,
officers and shareholders with respect thereto.
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12.
Covenants of the Advisor.
The
Advisor covenants that it is registered as an investment adviser under the
Investment Advisers Act of 1940. The Advisor agrees that its activities will at
all times be in compliance in all material respects with all applicable federal
and state laws governing its operations and investments.
13.
Non-Exclusivity.
The
Company understands that the persons employed by the Advisor to assist in the
performance of the Advisors duties under this Agreement may not devote their
full time to such service and nothing contained in this Agreement shall be
deemed to limit or restrict the right of the Advisor or any affiliate of the
Advisor to engage in and devote time and attention to other businesses or to
render services of whatever kind or nature, so long as the Advisors services to
the Company are not impaired by the provision of such services to others. The
Company further understands and agrees that managers of the Advisor may serve as
officers or directors of the Company, and that officers or directors of the
Company may serve as managers of the Advisor to the extent permitted by law; and
that the managers of the Advisor are not prohibited from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, officers or directors of any other firm or company,
including other investment advisory companies.
14.
Consent to the Use of Name.
The
Advisor hereby consents to the royalty free use by the Company of the name
Tortoise as part of the Companys name and consents to the royalty free use of
the related Tortoise logo; provided, however, that such consents shall be
conditioned upon the employment of the Advisor or one of its approved affiliates
as the investment advisor of the Company. The name Tortoise and the related
Tortoise logo or any variation thereof may be used from time to time in other
connections and for other purposes by the advisor and its affiliates and other
investment companies that have obtained consent to the use of the name
Tortoise. The Advisor shall have the right to require the Company to cease
using the name Tortoise as part of the Companys name and the related
Tortoise logo if the Company ceases, for any reason, to employ the Advisor or
one of its approved affiliates as the Companys investment advisor. Future names
adopted by the Company for itself, insofar as such names include identifying
words requiring the consent of the Advisor, shall be the property of the Advisor
and shall be subject to the same terms and conditions.
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15.
Effective Date, Term and Approval.
This
Agreement shall become effective with respect to the Company, if approved by the
shareholders of the Company, as of the date of execution above. This Agreement
shall continue in force and effect through December 31, 2010, and may be
continued from year to year thereafter, provided that the continuation of the
Agreement is specifically approved at least annually:
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a.
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(i) by the Board or
(ii) by the vote of a majority of the outstanding voting securities of
the Company (as defined in Section 2(a)(42) of the 1940 Act);
and
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b.
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by the affirmative
vote of a majority of the directors who are not parties to this Agreement
or interested persons (as defined in the 1940 Act) of a party to this
Agreement (other than as directors of the Company), by votes cast in
person at a meeting specifically called for such
purpose.
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16.
Termination.
This
Agreement may be terminated by the Company at any time, without the payment of
any penalty by the Company, by vote of the Board or by vote of a majority of the
outstanding voting securities of the Company, on no more than sixty (60) days
written notice to the Advisor. This Agreement may be terminated by the Advisor
at any time, without the payment of any penalty by the Advisor, on no less than
sixty (60) days written notice to the Company. The notice provided for herein
may be waived by the party entitled to receipt thereof. This Agreement shall
automatically terminate in the event of its assignment, the term assignment
for purposes of this paragraph having the meaning defined in Section 2(a)(4) of
the 1940 Act. Upon termination pursuant to this Section 14, the Advisor, at the
Companys request, must deliver all copies of books and records maintained in
accordance with this Agreement and applicable law.
17.
Amendment.
No
amendment of this Agreement shall be effective unless it is in writing and
signed by the party against which enforcement of the amendment is sought. No
amendment to Section 10 or Section 11 of this Agreement shall be effective
unless it is approved by the vote of a majority of the outstanding voting
securities of the Company.
18.
Liability of Advisor.
The
Advisor will not be liable in any way for any default, failure or defect in any
of the securities comprising the Companys portfolio if it has satisfied the
duties and the standard of care, diligence and skill set forth in this
Agreement. However, the Advisor shall be liable to the Company for any loss,
damage, claim, cost, charge, expense or liability resulting from the Advisors
willful misconduct, bad faith or gross negligence or disregard by the Advisor of
the Advisors duties or standard of care, diligence and skill set forth in this
Agreement or a material breach or default of the Advisors obligations under
this Agreement.
19.
Third Party Beneficiaries.
The
Company acknowledges and agrees that Kenmont is a permitted third party
beneficiary of Sections 4 and 10 hereof for the limited purposes of: (i)
enforcing the indemnification offered to Kenmont by the Company in Section 4 and
(ii) enforcing, on behalf of the Advisor, the payment obligations owed to the
Advisor pursuant to Section 10.
20.
Notices.
Any
notices under this Agreement shall be in writing, addressed and delivered,
telecopied or mailed postage paid, to the other party entitled to receipt
thereof at such address as such party may designate for the receipt of such
notice. Until further notice to the other party, it is agreed that the address
of the Company and that of the Advisor shall be 11550 Ash Street, Suite 300,
Leawood, Kansas 66211.
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21.
Questions of Interpretation.
Any
question of interpretation of any term or provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the 1940 Act or
the Advisers Act shall be resolved by reference to such term or provision of the
1940 Act or the Advisers Act and to interpretations thereof, if any, by the
United States courts or in the absence of any controlling decision of any such
court, by rules, regulations or orders of the Commission issued pursuant to said
Acts. In addition, where the effect of a requirement of the 1940 Act or the
Advisers Act reflected in any provision of the Agreement is revised by rule,
regulation or order of the Commission, such provision shall be deemed to
incorporate the effect of such rule, regulation or order. Subject to the
foregoing, this Agreement shall be governed by and construed in accordance with
the laws (without reference to conflicts of law provisions) of the State of
Delaware.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
duplicate by their respective duly authorized officers on the day and year first
written above.
TORTOISE CAPITAL RESOURCES CORPORATION
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By:
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Name:
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Title:
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TORTOISE CAPITAL ADVISORS, L.L.C.
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By:
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Name:
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Title:
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C-8
APPENDIX D
SUB-ADVISORY AGREEMENT
This
Sub-Advisory Agreement (the Agreement) is dated as of ________, 2009 (the
Effective Date) and is entered into by and between Tortoise Capital Advisors,
LLC, a Delaware limited liability company (Tortoise), and Kenmont Investments
Management, L.P., a Texas limited partnership (the Manager).
1.
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Appointment of
Manager.
Tortoise and the Manager agree that the Manager will provide
investment management services (the Designated Services) to Tortoise for
the benefit of Tortoise Capital Resources Corporation (the Company), an
entity for which Tortoise provides investment management and other
services pursuant to an Investment Advisory Agreement (the Client
Agreement).
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2.
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Designated
Services.
The Manager shall provide the following Designated Services
to Tortoise for the benefit of the Company: (i) subject to the
understanding that the Manager will first show all investment
opportunities identified by it to Kenmont Special Opportunities Master
Fund, L.P. and/or any other funds or accounts managed by the Manager, the
Manager shall actively search for and assist Tortoise in identifying
potential investment opportunities for the Company; (ii) assist Tortoise,
as reasonably requested, in the analysis of investment opportunities for
the Company; provided, that, in no event will the Manager be required to
provide more than 20 hours of service per month to Tortoise under this
clause (ii); and (iii) if requested by Tortoise, assist Tortoise in hiring
an additional investment professional who will be employed by Tortoise but
will be provided office space in the Houston, Texas office of the Manager.
In the event an additional investment professional is hired as
contemplated in the foregoing sentence, Tortoise shall be responsible for
the compensation and benefits of such person and shall pay to the Manager
an agreed upon allocation for rent and other overhead office expenses
attributable to the presence of such investment professional in the office
of the Manager. Tortoise and the Manager further agree, in the event such
investment professional is hired, to adopt procedures intended to ensure
the confidentiality of information relating to the Company and to protect
from disclosure to Tortoise any confidential information of the other
clients, funds, accounts or other business activities of the Manager. The
Manager will not have the right or responsibility to make investment
decisions on behalf of the Company. Tortoise acknowledges and agrees that
the Manager is primarily engaged in the business of providing investment
advice to clients for which it serves as the primary investment advisor
and the Managers services hereunder will be subject to such primary
engagement.
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3.
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Possession of
Assets.
The Manager shall not at any time be the custodian of, and
shall have no access to, either funds or securities of the Company. The
Manager will not have the authority to place orders for the execution of
transactions involving the assets of the Company through any brokers,
dealers, or banks. The Manager shall have no authority to commit the
Company to any contract, liability, or other obligation.
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4.
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Management Fee and
Expenses.
During the term of this Agreement, Tortoise shall pay to the
Manager, for services rendered under this Agreement, an amount equal to
ten percent (10%) of the base management fee paid quarterly to Tortoise by
the Company pursuant to the Client Agreement; provided, however, that no
such fee shall be payable by Tortoise to the Manager until the Total
Assets initially exceed $75,000,000 as of the end of that particular
fiscal quarter. The term Total Assets means the total assets of the
Company (including any assets purchased with any borrowed funds). The
management fee for each fiscal quarter shall be calculated and paid in
arrears within thirty days of the end of each fiscal quarter. In case of
the initiation or termination of this Agreement during any fiscal quarter,
the management fee for that quarter shall be reduced proportionately on
the basis of the number of calendar days during which this Agreement is in
effect. In addition to payment of any management fee, the Manager shall be
reimbursed on a quarterly basis for all out-of-pocket expenses reasonably
incurred by the Manager in providing the Designated Services. The Manager
shall submit to Tortoise an itemized list within fifteen days after the
end of each fiscal quarter reflecting the items as to which the Manager
anticipates reimbursement. Unless any request for reimbursement is
disputed by Tortoise in good faith, Tortoise shall reimburse the Manager
for all such itemized expenses within fifteen days after the receipt by
Tortoise of the list of such expenses. In the event of a dispute, the
parties shall negotiate in good faith to resolve such dispute
promptly.
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D-1
5.
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Incentive
Fee.
The Client Agreement entitles Tortoise to receive an incentive
fee that consists of two parts. To the extent Tortoise receives an
incentive fee payment for either component of the incentive fee
calculation at any time during the term of this Agreement, the Manager
shall be entitled to receive twenty percent (20%) of the amount received
by Tortoise from the Company. Such fee shall be paid to Manager within
fifteen (15) days after the receipt by Tortoise of the incentive fee
payment from the Company. In case of the termination of this Agreement
during any period in which an incentive fee payment is received from the
Company by Tortoise, the incentive fee owed to the Manager for that period
shall be reduced proportionately on the basis of the number of calendar
days during which this Agreement is in effect. Tortoise agrees that it
will not waive or reduce any fees payable by the Company as described in
Section 4 and this Section 5 without the consent of the
Manager.
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6.
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Representations and Warranties.
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(a)
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Each of the
Manager and Tortoise represents and warrants to the other
that:
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(i)
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This Agreement
constitutes a valid and binding obligation of such party enforceable
against such party in accordance with its terms.
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(ii)
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Such party is a
registered investment adviser under the Investment Advisers Act of
1940.
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(iii)
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This Agreement does
not conflict with or result in a violation of default under any material
agreement to which such party is subject.
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(b)
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The Manager
represents and warrants to Tortoise that:
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(i)
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The Manager has
delivered to Tortoise a copy of Part II of the Managers Form ADV, as
amended, which is current as of the date of this Agreement.
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(c)
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Tortoise
represents and warrants to the Manager that:
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(i)
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Tortoise has delivered
to the Company a copy of Part II of the Managers Form ADV, as amended, as
provided to Tortoise by the Manager.
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(ii)
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Tortoise has delivered
to the Manager a copy of the Client Agreement.
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7.
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Agreements with Clients.
The Manager acknowledges that
Tortoise has entered into the Client Agreement, a copy of which was
received and reviewed by the Manager. In performing its services
hereunder, the Manager agrees, subject to the limitations set forth
herein, to be bound by, and comply with, all of the terms, conditions and
provisions of the Client Agreement that are binding on Tortoise and that
could relate in any way to the Designated Services.
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8.
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Indemnification.
Each party hereto (the Indemnifying
Party) shall defend, indemnify and hold harmless the other party hereto
and such partys members, managers, affiliates, employees, agents,
successors and assigns (collectively, the Indemnitees) from and against
any and all claims, suits, actions, losses, liabilities, damages, costs
and expenses (including , but not limited to, costs of investigation and
reasonable attorneys fees) (collectively claims) incurred by any of the
Indemnitees based upon, arising out of, attributable to or resulting from
(i) the Indemnifying Partys gross negligence, malfeasance or violation of
applicable law in the performance of its services hereunder, (ii) the
Indemnifying Partys failure to comply with any term, condition or
provision of the Client Agreement (in the case of the Manager, to the
extent the terms of the Client Agreement are applicable to the Manager
pursuant to Section 7 above), (iii) in the case of Tortoise, claims based
on information about Tortoise provided in the Disclosure, or (iv) in the
case of the Manager, information provided by the Manager which is included
in the Disclosure. In the event information is not available for any claim
under this Section 8, the parties will contribute to such claim based on
the relative fault and benefit of the parties. The provisions of this
Section 8 and the partys obligations hereunder shall survive the
termination of the term of this Agreement.
|
D-2
9.
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Release.
The Manager acknowledges and agrees that all
obligations owed to it hereunder are obligations of Tortoise, and the
Manager hereby releases and forever discharges the Company from any and
all liabilities, claims, charges, and expenses arising hereunder;
provided, however, that this release shall not limit or in any way impair
the rights expressly accorded the Manager in the Client
Agreement.
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10.
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Term of
Agreement; Termination.
This Agreement shall continue in effect from
the Effective Date through December 31, 2010, and shall be continued from
year to year thereafter, to the extent Tortoise continues to serve as the
advisor to the Company. This Agreement may be terminated by Tortoise or
the Manager in the event the Manager discontinues the provision of the
Designated Services. Finally, and to the extent required by the Investment
Company Act of 1940, as amended (the 1940 Act), the continuation of this
Agreement after the initial term is contingent on this Agreement being
specifically approved at least annually by (i) the Board of Directors of
the Company, or the vote of a majority of the outstanding voting
securities of the Company (as defined in Section 2(a)(42) of the 1940
Act), and (ii) the affirmative vote of a majority of the directors of the
Company who are not parties to this Agreement or interested persons (as
defined in the 1940 Act) of a party to this Agreement (other than as
directors of the Company), by votes cast in person at a meeting
specifically called for such purpose. To the extent required by the 1940
Act, this Agreement may also be terminated at any time, without the
payment of any penalty, by the Board of Directors of the Company or by
vote of a majority of the outstanding voting securities of the Company on
not more than 60 days written notice to the Manager. This Agreement shall
automatically terminate in the event of its assignment, the term
assignment for purposes of this paragraph having the meaning defined in
Section 2(a)(4) of the 1940 Act. In the event this Agreement is terminated
other than as a result of the Manager discontinuing the provision of the
Designated Services described in clauses (i) or (ii) of Section 2, but
Tortoise provides investment advisory services to the Company, the Manager
will continue to be paid by Tortoise pursuant to Sections 4 and 5 as if
this Agreement had not been terminated.
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11.
|
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Miscellaneous.
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|
|
(a)
|
|
Any notice required or
permitted to be given under this Agreement must be in writing and shall be
effective when delivered personally (or by facsimile transmission), to the
parties at their respective address set forth
below:
|
If to
Tortoise:
Tortoise Capital Advisors,
LLC
11550 Ash
Street
Suite
300
Leawood, KS
66211
Fax No.: (913)
981-1021
Attention: Terry Matlack
If to the
Manager:
Kenmont Investments Management,
L.P.
711 Louisiana
Street
Suite
1750
Houston, TX
77002
Fax No.: (713)
223-0930
Attention: Donald R. Kendall,
Jr.
John T.
Harkrider
or to such other address as either party may designate by delivery of notice as
set for the above.
D-3
|
(b)
|
|
This Agreement may not
be amended or changed except by an instrument in writing executed by each
of the parties to this Agreement and, to the extent required by law,
approved by: (i) the affirmative vote of a majority of the directors of
the Company who are not parties to this Agreement or interested persons
of a party to this Agreement (other than as directors of the Company), by
votes cast in person at a meeting specifically called for such purpose,
and (ii) a majority of outstanding voting securities of the Company, if
required by the 1940 Act. It shall be construed in accordance with, and
any dispute arising in connection herewith shall be governed by, the laws
of the State of Delaware.
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(c)
|
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This Agreement may be
executed in any number of counterparts, each of which when taken together
shall constitute an original.
|
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|
|
(d)
|
|
The Company is a third
party beneficiary of this Agreement.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their representatives thereunto duly authorized.
TORTOISE CAPITAL ADVISORS, LLC
|
By:
|
|
|
KENMONT INVESTMENTS MANAGEMENT, L.P.
|
By:
|
|
TORTOISE ENERGY INFRASTRUCTURE
CORPORATION
TORTOISE ENERGY CAPITAL CORPORATION
TORTOISE NORTH AMERICAN
ENERGY CORPORATION
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE
ENCLOSED ENVELOPE.
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Proxy
Tortoise Energy Infrastructure Corporation
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|
|
|
PROXY SOLICITED BY THE BOARD OF
DIRECTORS FOR
A SPECIAL MEETING OF
STOCKHOLDERS SEPTEMBER 11, 2009
The undersigned holder of common stock
or preferred stock of Tortoise Energy Infrastructure Corporation appoints David
J. Schulte and H. Kevin Birzer, or either of them, as proxies for the
undersigned, each with full power of substitution, to vote all shares that the
undersigned is entitled to vote at the special meeting of stockholders of
Tortoise Energy Infrastructure Corporation to be held on September 11, 2009 and
at any adjournments or postponements thereof, as set forth on the reverse side
of this card, and in their discretion upon any procedural matter that may
properly come before the meeting (and any adjournment or postponement
thereof).
YOUR VOTE IS IMPORTANT. PLEASE MARK,
SIGN, DATE AND RETURN THIS PROXY PROMPTLY USING THE ENCLOSED POSTMARKED
ENVELOPE.
(Continued
and to be signed on the reverse side)
|
|
Using
a
black ink
pen, mark your votes with an X as shown in
this
example. Please do not write outside the designated areas.
|
|
[ X
]
|
Special Meeting Proxy
Card
|
|
|
|
|
|
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE
ENCLOSED ENVELOPE.
|
|
This proxy, when properly executed,
will be voted in the manner directed herein and, absent direction, will be voted
FOR the proposals. The votes entitled to be cast by the undersigned will be
cast in the discretion of the proxy holder on any procedural matter related to
Proposal 1 that may properly come before the meeting (and any adjournments or
postponements thereof), including, but not limited to, voting on adjournment of
the meeting in the event that sufficient votes in favor of Proposal 1 are not
received.
A.
|
|
Proposal The Board of Directors recommends a vote FOR the
Proposal below.
|
|
|
|
1.
|
|
Approval of a new investment advisory agreement between the Company
and Tortoise Capital Advisors, L.L.C.
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F
OR
|
|
A
GAINST
|
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A
BSTAIN
|
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|
[
]
|
|
[
]
|
|
[
]
|
|
B.
|
|
Non-Voting
Issues
|
|
|
|
Change of Address
Please print
new address below.
|
|
Meeting Attenda
nce
|
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|
Mark box to the
right
|
|
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|
if you
plan to attend the
|
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|
|
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|
Special Meeting.
|
|
C.
|
|
Authorized
Signatures This section must be completed for your vote to be counted.
Date and Sign Below
|
Please
sign exactly as your name appears. If acting as attorney, executor,
trustee, or in representative capacity, sign name and indicate title.
|
Date (mm/dd/yyyy)
|
|
Signature 1 Please keep signature
|
|
Signature 2 Please keep signature
|
Please print date below
|
|
within the box.
|
|
within the box.
|
/
/
|
|
|
|
|
|
|
|
|
|
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE
ENCLOSED ENVELOPE.
|
|
|
|
|
|
|
|
|
|
|
Proxy
Tortoise Energy Capital Corporation
|
|
|
|
PROXY SOLICITED BY THE BOARD OF
DIRECTORS FOR
A SPECIAL MEETING OF
STOCKHOLDERS SEPTEMBER 11, 2009
The undersigned holder of common stock
or preferred stock of Tortoise Energy Capital Corporation appoints David J.
Schulte and H. Kevin Birzer, or either of them, as proxies for the undersigned,
each with full power of substitution, to vote all shares that the undersigned is
entitled to vote at the special meeting of stockholders of Tortoise Energy
Capital Corporation to be held on September 11, 2009 and at any adjournments or
postponements thereof, as set forth on the reverse side of this card, and in
their discretion upon any procedural matter that may properly come before the
meeting (and any adjournment or postponement thereof).
YOUR VOTE IS IMPORTANT. PLEASE MARK,
SIGN, DATE AND RETURN THIS PROXY PROMPTLY USING THE ENCLOSED POSTMARKED
ENVELOPE.
(Continued
and to be signed on the reverse side)
|
|
Using
a
black ink
pen, mark your votes with an X as shown in
this
example. Please do not write outside the designated areas.
|
|
[ X
]
|
Special Meeting Proxy
Card
|
|
|
|
|
|
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE
ENCLOSED ENVELOPE.
|
|
This proxy, when properly executed,
will be voted in the manner directed herein and, absent direction, will be voted
FOR the proposals. The votes entitled to be cast by the undersigned will be
cast in the discretion of the proxy holder on any procedural matter related to
Proposal 1 that may properly come before the meeting (and any adjournments or
postponements thereof), including, but not limited to, voting on adjournment of
the meeting in the event that sufficient votes in favor of Proposal 1 are not
received.
A.
|
|
Proposal The Board of Directors recommends a vote FOR the
Proposal below.
|
|
|
|
1.
|
|
Approval of a new investment advisory agreement between the Company
and Tortoise Capital Advisors, L.L.C.
|
|
|
|
|
|
F
OR
|
|
A
GAINST
|
|
A
BSTAIN
|
|
|
|
|
|
|
|
|
|
|
|
[
]
|
|
[
]
|
|
[
]
|
|
B.
|
|
Non-Voting
Issues
|
|
|
|
Change of Address
Please
print new address below.
|
|
Meeting Attenda
nce
|
|
|
|
|
|
Mark box to the
right
|
|
|
|
|
|
|
if you
plan to attend the
|
|
|
|
|
|
Special Meeting.
|
|
C.
|
|
Authorized
Signatures This section must be completed for your vote to be counted.
Date and Sign Below
|
Please
sign exactly as your name appears. If acting as attorney, executor,
trustee, or in representative capacity, sign name and indicate title.
|
Date (mm/dd/yyyy)
|
|
Signature 1 Please keep signature
|
|
Signature 2 Please keep signature
|
Please print date below
|
|
within the box.
|
|
within the box.
|
/
/
|
|
|
|
|
|
|
|
|
|
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE
ENCLOSED ENVELOPE.
|
|
|
|
|
|
|
|
|
|
|
Proxy
Tortoise Capital Resources Corporation
|
|
|
|
PROXY SOLICITED BY THE BOARD OF
DIRECTORS FOR
A SPECIAL MEETING OF
STOCKHOLDERS SEPTEMBER 11, 2009
The undersigned holder of stock of
Tortoise Capital Resources Corporation appoints David J. Schulte and H. Kevin
Birzer, or either of them, as proxies for the undersigned, each with full power
of substitution, to vote all shares that the undersigned is entitled to vote at
the special meeting of stockholders of Tortoise Capital Resources Corporation to
be held on September 11, 2009 and at any adjournments or postponements thereof,
as set forth on the reverse side of this card, and in their discretion upon any
procedural matter that may properly come before the meeting (and any adjournment
or postponement thereof).
YOUR VOTE IS IMPORTANT. PLEASE MARK,
SIGN, DATE AND RETURN THIS PROXY PROMPTLY USING THE ENCLOSED POSTMARKED
ENVELOPE.
(Continued
and to be signed on the reverse side)
|
|
Using
a
black ink
pen, mark your votes with an X as shown in
this
example. Please do not write outside the designated areas.
|
|
[ X
]
|
Special Meeting Proxy
Card
|
|
|
|
|
|
PLEASE FOLD ALONG THE PERFORATION, DETACH AND RETURN THE
BOTTOM PORTION IN THE
ENCLOSED ENVELOPE.
|
|
This proxy, when properly executed,
will be voted in the manner directed herein and, absent direction, will be voted
FOR the proposals. The votes entitled to be cast by the undersigned will be
cast in the discretion of the proxy holder on any procedural matter related to
the proposals that may properly come before the meeting (and any adjournments or
postponements thereof), including, but not limited to, voting on adjournment of
the meeting in the event that sufficient votes in favor of the proposals are not
received.
A.
|
|
Proposals The Board of Directors recommends a vote FOR the
Proposals below.
|
|
|
|
1.
|
|
Approval of a new investment advisory agreement between the Company
and Tortoise Capital Advisors, L.L.C.
|
|
|
|
|
|
For
|
|
Against
|
|
Abstain
|
|
|
|
|
|
|
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|
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|
|
[
]
|
|
[
]
|
|
[
]
|
|
|
|
|
2.
|
|
To
approve a new sub-advisory agreement between Tortoise Capital Advisors,
L.L.C. and Kenmont Investments Management, L.P.
|
|
|
|
|
|
For
|
|
Against
|
|
Abstain
|
|
|
|
|
|
|
|
|
|
|
|
[
]
|
|
[
]
|
|
[
]
|
|
B.
|
|
Non-Voting
Issues
|
|
|
|
Change of Address
Please
print new address below.
|
|
Meeting Attenda
nce
|
|
|
|
|
|
Mark box to the
right
|
|
|
|
|
|
|
if you
plan to attend the
|
|
|
|
|
|
Special Meeting.
|
|
C.
|
|
Authorized
Signatures This section must be completed for your vote to be counted.
Date and Sign Below
|
Please
sign exactly as your name appears. If acting as attorney, executor,
trustee, or in representative capacity, sign name and indicate title.
|
Date (mm/dd/yyyy)
|
|
Signature 1 Please keep signature
|
|
Signature 2 Please keep signature
|
Please print date below
|
|
within the box.
|
|
within the box.
|
/
/
|
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Tortoise (NYSE:TYY)
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Tortoise (NYSE:TYY)
과거 데이터 주식 차트
부터 7월(7) 2023 으로 7월(7) 2024