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-1- APPENDIX E INVESTMENT MANAGEMENT AGREEMENTThis MANAGEMENT AGREEMENT is dated as of ______________, 1999 (this "Agreement") and is by and between NEW PRIVATE EQUITY FUND MANAGEMENT, LLC, a Delaware limited liability company (the "Manager"), and NEW PRIVATE EQUITY FUND, L.P., a Delaware limited partnership (the "Partnership"). RECITALS WHEREAS, the Partnership is engaged in a business as more fully described in the Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of the date hereof (as the same may be amended, modified and restated from time to time, the "Partnership Agreement"); WHEREAS, the Partnership desires to engage the Manager to provide the Partnership with certain advisory and management services, and the Manager desires to render such services to the Partnership in consideration of a management fee and certain other agreements as hereinafter specified; and WHEREAS, the engagement of the Manager is authorized by the Partnership Agreement and the Manager agrees to act in a manner consistent with the Partnership Agreement and subject to the guidelines established by the Investment Committee. NOW, THEREFORE, in consideration of the agreements made herein and intending to be legally bound hereby, it is agreed by and between the parties hereto as follows: 1. Capitalized Terms. Capitalized terms used and not otherwise defined herein shall have the respective meanings attributable to such terms in the Partnership Agreement. 2. Appointment of Manager. The Partnership appoints, as of the date hereof, the Manager to act as manager of the Partnership pursuant to the terms of this Agreement, the Partnership Agreement and the guidelines established by the Investment Committee. The Manager accepts any obligations imposed on it pursuant to the Partnership Agreement. -2- 3. Provision of Services by Manager.The Manager shall engage and maintain personnel for the purpose of identifying and structuring transactions of a type contemplated by the Partnership Agreement and assisting with the other services to be provided to the Partnership by the Manager pursuant to this Agreement. Subject to the terms of this Agreement, the Partnership Agreement and the guidelines established by the Investment Committee, the Manager, on behalf of the Partnership, shall perform and render management, investment, administrative, consulting and other services to the Partnership as may be required by the Partnership to properly conduct its business, including, without limitation, the following: (a) providing general business advice, including recommendations as to, and identification of, potential investments; (b) conducting due diligence in connection with potential investments; (c) structuring and negotiating transactions; (d) identifying, structuring, negotiating, obtaining bank, institutional and other sources of financing necessary or appropriate in connection with any proposed Portfolio Company investment, including, without limitation, arranging appropriate introductions; (e) supervising the preparation and review of all documents required to complete the transaction, including, where appropriate, the financing documents thereof; (f) monitoring the performance of the Portfolio Companies and, where appropriate, providing advice during the term of the investment to the management of any Portfolio Company ("Monitoring Activities"); (g) providing management and financial planning, including advice on utilization of assets; (h) developing and assisting in the execution of exit strategies in connection with Partnership investments; -3- (i) furnishing data processing services, telephone and telecopy services, other utilities, computer services, clerical services, executive and administrative services, stationery and other office supplies and other general purpose office equipment in connection with the foregoing; (j) communicating with the Partners; (k) maintaining the principal records of the Partnership and books of account to the extent not maintained by the General Partner; (l) determining the amounts available for distribution to the Partners; disbursing payments of distributions and withdrawals to the Partners; and disbursing payments in respect of legal fees, accounting fees, and other expenses of the Partnership; (m) assisting the General Partner in establishing the accounting policies of the Partnership; reconciling accounting issues which may arise with respect to the Partnership's operations; and consulting with the Partnership's independent accountants, legal counsel and custodians as may be necessary in connection therewith; (n) reviewing the provision of services by the Partnership's independent accountants, including, but not limited to, the examination by such accountants of financial records and statements of the Partnership; making such reports and recommendations to the General Partner concerning the performance of the independent accountants as the General Partner may reasonably request or deem appropriate; and filing with the appropriate authorities all required federal, state and local tax returns; (o) opening, maintaining and closing bank accounts and drawing checks or other orders for the payment of monies, in each such case on behalf of the Partnership; and (p) providing such assistance to the Partnership, the General Partner, the Partnership's counsel and auditors as generally may be required to properly carry on the business and operations of the Partnership. The Manager shall perform its obligations under this Agreement in good faith and in a diligent and timely manner. In addition to the services of its own personnel, the Manager shall, to the extent that it determines that it would be necessary or advisable in order to perform the services for the Partnership which are required hereunder, arrange for and coordinate the -4- services of other professionals, experts and consultants (collectively, "Third Parties"), and the Manager may compensate such Third Parties for such services. The Manager may enter into contracts and transactions on behalf of the Partnership with any Affiliate of the Manager, provided that the terms of any such contract or transaction are fair and reasonable to the Manager and the Partnership and are not less favorable than could be obtained in arms- length negotiations with unrelated Third Parties for similar services.Notwithstanding the services provided by the Manager, the Manager shall be deemed to be an independent contractor and not a member of the General Partner or a partner of the Partnership and, unless otherwise expressly authorized or provided, shall not be authorized to manage the affairs of, act in the name of, or bind the Partnership. The General Partner shall not be obligated to follow or accept any recommendation made by the Manager. The management, policies and operations of the Partnership (including the ultimate approval of the making or disposition of any investment by the Partnership, as well as the terms thereof) shall be the responsibility of the General Partner, acting pursuant to and in accordance with the Partnership Agreement. The provisions of this Agreement are intended expressly to benefit the Partners of the Partnership and may be enforced by each such Partner or, if the Partnership shall have been dissolved, by each Person which was a Partner at the time of such dissolution. 4. Indemnification Of Manager. The Partnership shall, to the maximum extent permitted by applicable law, indemnify and hold harmless the Manager, its members, managers, employees, agents, assigns or any of their respective Affiliates or any Person who was, at the time in question, such a Person (collectively, the "Related Persons") and the Partnership shall release each Related Person, to the fullest extent permitted by law, from and against any and all Damages, including, without limitation, Damages incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from any of the foregoing by or before any court or Governmental Authority, whether pending or threatened, whether or not a Related Person is or may be a party thereto, which, in the judgment of the General Partner, arise out of, relate to or are in connection with this Agreement or the Partnership Agreement or the management or conduct of the business or affairs of the Partnership or any Portfolio Company or any other Person in which the Partnership has a direct or indirect interest as such management or conduct of business or affairs relates directly or indirectly to the Partnership (including, -5- without limitation, actions taken or not taken directly or indirectly on behalf of the Partnership by any Related Person as a director of any Person in which the Partnership has a direct or indirect interest or activities of any Related Person which relate to the offering and selling of Interests), provided that (a) the act or failure to act giving rise to such Damages was taken in good faith and except for any such Damages that are found by a court of competent jurisdiction to have resulted primarily from any act or omission which constituted gross negligence, intentional misconduct, an intentional or material breach of this Agreement or the Partnership Agreement or a knowing violation of law, (b) if such Related Person is either (i) a plaintiff against the Partnership or (ii) in an adversarial posture, either as a plaintiff or as a defendant, with the General Partner, the Manager or any Affiliate of the General Partner or the Manager, then such Related Person's claim for indemnification shall require the approval of the Investment Committee and (c) if such Related Person is entitled to indemnification from any source other than the Partnership, including, without limitation, any Portfolio Company or any insurance policy by which such Person is covered, then the Manager shall use its reasonable best efforts to cause such Related Person to seek indemnification from such other source simultaneously with seeking indemnification from the Partnership, and the amount recovered by such Related Person from such other source shall reduce the amount of the Partnership's indemnification obligation hereunder. Attorneys' fees and expenses shall be paid by the Partnership as they are incurred upon receipt of an undertaking, in each case, by or on behalf of the Related Person on whose behalf such expenses are incurred to repay such amounts if it is ultimately determined that such Related Person is not entitled to indemnification with respect thereto.The termination of any proceeding by settlement shall not be deemed to create a presumption that the Related Person involved in such settlement did not act in good faith or acted in a manner which constituted gross negligence, intentional misconduct, an intentional or material breach of this Agreement, a knowing violation of law or a material breach of any securities laws. The indemnification provisions of this section may be asserted and enforced by, and shall be for the benefit of, each Related Person, and each Related Person is hereby specifically empowered to assert and enforce such right; provided that any Related Person who enters into a settlement of any proceeding without the prior approval of the General Partner (which approval shall not be unreasonably withheld) shall not be entitled to the indemnification provided in this section. The right of any Related Person to the indemnification provided herein shall be cumulative of, and in addition to, any and all rights to which such Related Person may otherwise be entitled by -6- contract or as a matter of law or equity and shall extend to his or its heirs, successors, assigns and legal representatives. 5. Non-exclusivity; Other Activities.The Manager shall devote substantially all of its time and attention to the performance of services for the Partnership during the Commitment Period, and thereafter shall devote such time and attention to the performance of services for the Partnership as it deems to be reasonably necessary therefor. This Agreement and the duties of the Manager hereunder shall not preclude the Manager from providing services of a like nature to any other Person, subject to compliance with the Partnership Agreement. Subject to the provisions of this section and the Partnership Agreement, the Partnership agrees that the Manager and any other Related Person may engage independently or with others, for its, his or her own account and for the accounts of others, in other business ventures and activities of every nature and description whether such ventures are competitive with the business of the Partnership or otherwise, including, without limitation, purchasing, selling or holding Securities for the account of any other Person or enterprise or for its, his or her own account. The Manager will, and will cause each Principal to, use its, his or her best efforts to ensure that the other investments or business ventures of the Manager and the Principals are not inconsistent with the achievement by the Partnership of the Investment Guidelines. The Partnership shall not have any rights or obligations by virtue of this Agreement in and to such independent ventures and activities or the income or profits derived there from. Neither the Manager, any Principal nor any Affiliate of the Manager or any Principal may organize for its, his or her own account or serve, directly or indirectly, as a principal of, or otherwise act as the primary source of transactions for, any Competitive Fund except as otherwise permitted pursuant to the Partnership Agreement. During the Commitment Period, neither the Manager, any Principal nor any Affiliate of the Manager or any Principal may (a) acquire, invest in or hold Securities of any Portfolio Company or (b) invest in or offer to any Person (other than the Partner ship) any investment opportunity of a kind suitable for the Partnership, except in each case as otherwise permitted pursuant to the Partnership Agreement. -7- The Partnership expressly agrees that the Manager and any other Related Person may earn directors' fees, management fees, advisory fees, consulting fees, monitoring fees, brokers' and finders' fees, transaction fees, investment banking fees, break-up fees or similar fees and litigation payments from broken deals from Portfolio Companies and other Persons and that any such fees shall be for the sole account of the Manager or such Related Person, as the case may be, other than any such fees received by the Manager, the General Partner, any Principal or any Affiliate of the Manager, the General Partner or any Principal relating to any proposed or actual investment by the Partnership, which shall be applied to reduce Management Fees as set forth in section 8. 6. Referral of Opportunities. During the Commitment Period, the Manager shall and shall cause each Principal to disclose and refer investment opportunities to the Partnership which are of a kind suitable for the Partnership except as otherwise permitted pursuant to the Partnership Agreement. 7. Term. The term of this Agreement shall be the same as the term of the Partnership and shall terminate upon the complete liquidation of the Partnership pursuant to the Partnership Agreement, except that the Partnership may terminate this Agreement at any time upon ninety (90) days written notice to the Manager. Upon such termination, all Management Fees (as defined in section 8) hereunder shall cease to accrue. 8. Remuneration. The Partnership hereby agrees to pay management fees (collectively, "Management Fees") to the Manager, which shall be (a) during the Commitment Period, in an annual amount equal to two percent (2%) of the aggregate Capital Commitments, and (b) after the termination of the Commitment Period, in an annual amount equal to two percent (2%) of the aggregate Capital Contributions which have been applied to the purchase of Portfolio Company investments and not distributed to the Partners, less the aggregate Capital Contributions which have been applied to the purchase of any Portfolio Investment that has become worthless within the meaning of Section 165(g) of the Code, determined as of the end of the immediately preceding Management Fee Quarter. -8- All such Management Fees shall be paid quarterly in advance at the beginning of each Management Fee Quarter, except that the first payment shall be made on the date of the Initial Closing for the first and second Management Fee Quarters (and, with respect to any additional Limited Partner admitted at any Subsequent Closing, the first payment shall be made on the date of such Subsequent Closing). Any Management Fees payable by the Partnership on any date pursuant to the foregoing clauses (a) and (b) shall be reduced pro rata by an amount, if any, equal to fifty percent (50%) of the aggregate amount of directors' fees, management fees, advisory fees, consulting fees, monitoring fees, brokers' and finders' fees, transaction fees, investment banking fees, break-up fees or similar fees and litigation payments from broken deals, in each case net of any related expenses, which shall include any such fees received in the form of securities, stock options or other property, provided that such property shall be valued in the reasonable judgment of the General Partner, received by the Manager, the General Partner, any Principal or any Affiliate of the Manager, the General Partner or any Principal, relating to any proposed or actual investment by the Partnership prior to such date and not previously applied to reduce the Management Fees otherwise payable on any previous date. The Manager shall notify the Partnership of the Management Fees payable at the beginning of each Management Fee Quarter. 9. Expenses. During the term of this Agreement, the Manager shall be responsible for all of its own normal day-to-day operating expenses, including, without limitation, compensation of its professional staff and the cost of office space, office equipment, communications, utilities and other such normal overhead expenses. In addition, the Manager will be responsible for expenses incurred in connection with the research and analysis of potential portfolio investments and divestments and the management of the Partnership's investment portfolio, except to the extent that legal, accounting or other specialized consulting or professional services are required that the Manager would not normally be expected to render with its own professional staff. The Partnership shall be responsible for Partnership Expenses as set forth in the Partnership Agreement. 10. Monitoring Activities. In connection with the performance of Monitoring Activities, the Manager shall be entitled to enter into contractual or other arrangements with any Portfolio Company for the purpose, among other things, of specifying the -9- nature and extent of any Monitoring Activities to be performed by the Manager and the fees to be paid by such Portfolio Company to the Manager in connection therewith and of providing for indemnification, the reimbursement of expenses and such other matters as are included customarily in such arrangements, and such fees shall be applied to reduce Management Fees as set forth in section 8. 11. Certain Determinations by the Manager.The Manager shall determine which payments, amounts, damages, expenses, obligations and other items incurred, paid or received by the Manager were in connection with any activities performed pursuant to the terms of this Agreement. 12. Liability of Manager. Neither the Manager nor any other Related Person shall be liable, responsible or accountable, whether directly or indirectly, in contract or tort or otherwise, to the Partnership, any Partner, any Portfolio Company or any other Person in which the Partnership has a direct or indirect interest (or any of their respective Affiliates) for any Damages asserted against, suffered or incurred by the Partnership, any Partner, any Portfolio Company or any other Person in which the Partnership has a direct or indirect interest (or any of their respective Affiliates) arising out of, relating to or in connection with any act or failure to act pursuant to this Agreement or otherwise with respect to: (i) the management or conduct of the business and affairs of the Partnership, any Portfolio Company or any other Person in which the Partnership has a direct or indirect interest (including, without limitation, actions taken or not taken by any Related Person as a director of any Person in which the Partnership has a direct or indirect interest); (ii) the offer and sale of interests in the Partnership; and (iii) the management or conduct of the business and affairs of any Related Person insofar as such business or affairs relate to the Partnership, any Portfolio Company, any other Person in which the Partnership has a direct or indirect interest or to any Partner in its capacity as such, provided that such act or failure to act was taken in good faith and except, in each case, for Damages that are finally found by a court of competent jurisdiction to have resulted primarily from any act or omission of such Related Person which constituted gross negligence, intentional misconduct, an intentional or material breach of this Agreement or the Partnership Agreement or a knowing violation of law. For purposes of this Agreement, no Related Person shall be deemed per se not to have acted in good faith or to have acted with gross negligence, to have engaged in intentional misconduct, to have intentionally or materially -10- breached this Agreement or the Partnership Agreement or to have knowingly violated the law in connection with the management or conduct of the business and affairs or other activities of such Related Person or any other Related Person which involve a conflict of interest with the Partnership, any Portfolio Company, any other Person in which the Partnership has a direct or indirect interest or any Partner or which are specified in or contemplated by the Offering Memorandum or in which such Related Person realizes a profit or has an interest. Notwithstanding the foregoing provisions, no Related Person shall be liable to the Partnership, any Portfolio Company, any other Person in which the Partnership has a direct or indirect interest or any Partner (or any of their respective Affiliates) for any action taken or omitted to be taken by any other Related Person. Any Related Person may (in its own name or in the name of the Partnership) consult with counsel, accountants and other professional advisors in respect of the affairs of the Partnership, any Portfolio Company or any other Person in which the Partnership has a direct or indirect interest and, provided that such counsel, accountants or other professional advisors were selected with reasonable care, each Related Person shall be deemed to have acted in good faith and not to have acted with gross negligence, to have engaged in intentional misconduct or to have intentionally or materially breached this Agreement or the Partnership Agreement with respect to any action or failure to act and shall be fully protected and justified in so acting or failing to act, if such action or failure to act is taken or not taken in good faith upon the advice or opinion of such counsel, accountants or other professional advisors, except for actions or failures to act by such Related Person which constitute a knowing violation of law. 13. Miscellaneous Provisions.13.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF). 13.2 Amendment. This Agreement may be amended from time to time by the Partnership and the Manager by written agreement signed by the Partnership and the Manager, with the consent of Two-Thirds in Interest. No provision shall be deemed to have been waived unless such waiver is contained in a written notice given by the party claiming such waiver, and no such waiver shall be deemed to be a waiver of any other or further obligation or liability of the party or parties in whose favor the waiver was given. Any such waiver shall only be effective with the consent of Two-Thirds in Interest. -11- 13.3 Successors and Assigns. Except as otherwise specifically provided herein, this Agreement shall be binding upon and inure to the benefit of the parties and their legal representatives, heirs, administrators, executors, successors and permitted assigns; provided that (a) without the prior consent of the Partnership and Two-Thirds in Interest, the Manager may not assign any of its rights or delegate any of its obligations under this Agreement to any Person other than an Affiliate; and (b) without the prior consent of the Manager and Two-Thirds in Interest, the Partnership may not assign any of its rights or delegate any of its obligations under this Agreement to any Person other than an Affiliate. 13.4 Captions. Captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend or otherwise affect the scope or intent of this Agreement or any provision hereof. 13.5 Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance, shall be held invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions of this Agreement, or the application of such provision in jurisdictions or to Persons or circumstances other than those to which it is held invalid, illegal or unenforceable shall not be affected thereby. 13.6 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but both of which shall constitute one and the same instrument. It shall not be necessary for all parties to execute the same counterpart hereof. 13.7 Submission to Jurisdiction. Each party irrevocably consents and agrees that any legal action or proceeding with respect to this Agreement and any action for enforcement of any judgment in respect thereof may be brought in the courts of the State of New York or the United States federal courts for the Southern District of New York, and, by execution and delivery of this Agreement, each party hereby submits to and accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and appellate courts from any appeal thereof. Each party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the courts referred to above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Nothing herein -12- shall affect the right of the General Partner or the Partnership to commence legal actions or proceedings or otherwise proceed against the Manager in any other jurisdiction. Nothing in this section shall be deemed to constitute a submission to jurisdiction, consent or waiver with respect to any matter not specifically referred to herein.13.8 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written. NEW PRIVATE EQUITY FUND MANAGEMENT, LLC, By: ________________________ Name: Title: NEW PRIVATE EQUITY FUND, L.P. By: NEW PRIVATE EQUITY FUND GENERAL PARTNER, LLC as General Partner By: __________________________ Name: Title: