Exhibit 10.3.1
LOGO
GENERAL RE - NEW ENGLAND ASSET MANAGEMENT, INC.
Investment Management Agreement
This Agreement is made as of the 1st day of July, 2004, between
1. GENERAL RE - NEW ENGLAND ASSET MANAGEMENT, INC., a corporation
organized under the laws of the State of Delaware ("Manager"); and
2. ALLEGHANY CORPORATION, a corporation organized under the laws of
the State of Delaware and its affiliates listed on Schedule E- l and signatories
hereto (collectively, the "Client").
WHEREAS, Client desires to appoint Manager as the investment manager
of that portion of Client's assets constituting the Account (as defined below)
for fees agreed upon in Schedule A.III.;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, it is agreed as follows:
Section 1. The Account. The cash, securities and other assets placed
by Client in the account to be managed under this Agreement (the "Account") are
listed on Section I.A. of Schedule A. Assets may be added to the Account at any
time. Client will provide notification to the Manager of any such additions. The
Account will include these assets and any changes in them resulting from
transactions directed by Manager, withdrawals and additions made by Client, or
dividends, interest, stock splits and other earnings, gains or losses on the
assets,
Assets of the Client that are not to be managed by Manager are
separately identified on Schedule A ("Unmanaged Assets"). Manager may include
these assets in its periodic reports to Client, but will exclude their value
when calculating Manager's asset management fees.
Section 2. Management of the Account. Manager will make all investment
decisions for the Account, in Manager's sole discretion and without first
consulting or notifying Client, in accordance with the investment restrictions
and guidelines which are attached as Schedule B (the "Investment Guidelines").
If Manager manages only a portion of Client's portfolio, unless otherwise
specified by Client in writing, Investment Guidelines' restrictions relate
specifically to the assets managed by Manager. Client may change these
Investment Guidelines at any time, but Manager will be bound by the changes only
after it has received and agreed to them in writing. Other than by the
Investment Guidelines and the terms of this Agreement, the investments made by
Manager on behalf of the Client will not be restricted in any manner, except by
operation of law.
Manager will have full power and authority, on behalf of Client, to
instruct any brokers, dealers or banks to buy, sell, exchange, convert or
otherwise trade in all securities, futures or other investments for the Account.
Manager will not be responsible for giving Client investment advice or
taking any other action with respect to Unmanaged Assets.
Client appoints Manager as the true and lawful attorney of the Client
for and in the name, place and stead of Client, in Manager's unrestricted
discretion, to operate and conduct the brokerage accounts of the Client and to
do and perform all and every act and thing whatsoever requisite in furtherance
of this Agreement, including the execution of all writings related to the
purchase or sale, assignments, transfers and ownership of any stocks, bonds,
commodities, or other derivatives or securities. Manager is hereby fully
authorized to act and rely on the authority vested pursuant to said power of
attorney.
Effective as of January 1, 2004, and until further notice, Manager
will provide investment accounting services for Client, and will assist Client
in preparing Client's statutory Schedule D, if applicable. Client acknowledges
that Manager will provide accounting data according to Manager's standard
interpretation of accounting principles, unless expressly instructed otherwise
by Client's prior written notice.
Section 3. Transactions for the Account. Manager will arrange for
securities transactions for the Account to be executed through those brokers,
dealers or banks that Manager believes will provide best execution. In choosing
a broker, dealer or bank, Manager will consider the broker, dealer or bank's
execution capability, reputation and access to the markets for the securities
being traded for the Account. Manager will seek competitive commission rates,
but not necessarily the lowest rates available.
Manager may also send transactions for the Account to brokers who
charge higher commissions than other brokers, provided that Manager determines
in good faith that the amount of commissions Manager pays is reasonable in
relation to the value of the brokerage and research services provided, viewed in
terms either of that particular transaction or Manager's overall
responsibilities with respect to all clients whose accounts Manager manages on a
discretionary basis.
Portfolio transactions for each client account generally are completed
independently. However, if Manager decides to purchase or sell the same
securities for Client and other clients at about the same time, Manager may
combine Client's order with those of other clients if Manager reasonably
believes that it will be able to negotiate better prices or lower commission
rates or transaction costs for the combined order than for Client's order alone.
Client will pay the average price and transaction costs obtained for such
combined orders, Manager generally will allocate securities purchased or sold as
part of a combined order to Client's Account and to accounts of other clients
according to the size of the order placed for each client.
2
If Manager cannot obtain execution for the total amount of the
securities in the combined orders, adjustments to the allocation will be made on
a random number generator methodology. However, Manager may increase or decrease
the amounts of securities allocated to each client if necessary to avoid having
odd or small numbers of shares held for the account of any client. Each client
that participates in a combined order will receive or pay the average share
price and/or transactions costs for all transactions executed as part of the
combined order.
If Client directs Manager to use particular brokers, dealers or banks
to execute transactions for the Account, Manager will do so, but Manager will
not seek better execution services or prices for Client from other brokers,
dealers or banks, and Client may pay higher prices or transaction costs as a
result. Manager also may not be able to seek better execution services for
Client by combining Client's orders with those of other clients.
Client may direct all transactions for the Account to a particular
broker, dealer or bank, by writing the name and address of that broker, dealer
or bank in the space provided on Schedule A.
Section 4. Transaction Confirmations. Manager will instruct the
brokers, dealers or banks who execute transactions for the Account to send
Client all transaction confirmations, unless Client chooses not to receive
confirmations. If Client does not wish to receive individual confirmations, this
box should be checked. [ ]
Client may elect to receive individual confirmations at any time by
giving Manager written notice.
Section 5. Custody of Account Assets. The assets in the Account will
be held for Client by the custodian named on Schedule A (the "Custodian").
Manager will not have custody of any Account assets. Client will pay all fees of
the Custodian.
Client will authorize the Custodian to follow Manager's instructions
to make and accept payments for, and to deliver or to receive, securities, cash
or other investments purchased, sold, redeemed, exchanged, pledged or loaned for
the Account. Client also will instruct the Custodian to send Client and Manager
monthly statements showing the assets in and all transactions for the Account
during the month, including any payments of Manager's fees.
Client will provide Manager with a copy of its agreement with the
Custodian, and will give Manager reasonable advance notice of any change of
Custodian.
Section 6. Client Reports and Electronically Available "CARA(TM)"
Toolset and Information. Both Parties agree that the Web Access Addendum
attached as Schedule F hereto shall govern the Manager's provisions and Client's
use of the electronically available CARA(TM) toolset and information.
Manager shall prepare 1) Quarterly investment guideline compliance
status report; 2) monthly appraisal reports and detailed holdings reports,
showing current
3
book values, securities valuations, unrealized gains and losses, book yields and
average life; and 3) quality and maturity distribution reports.
Additionally, investment accounting reports generally include the
following:
- Investment Income Earned
- Securities on Deposit - By State
- Summary of General Ledger Journal Entries
- Trial Balance
- Schedule D data, including NAIC Rating information
Client agrees to obtain its appraisals and investment accounting
reports via Manager's website, XXXXXX.xxx. Reports shall be available no later
than five (5) business days after month-end. However, both Parties agree that
the Client has the right to receive hard copies and that upon Client's written
request, Manager will send Client hard copies of the appraisals and/or
investment accounting reports, via email, facsimile or overnight mail.
The Account's performance will be sent monthly, quarterly or annually
upon Client request. Ad hoc reports and presentation materials are prepared as
reasonably directed by clients.
Manager is responsible for the accuracy and completeness of Client
Account information and reports.
Manager shall provide Client with a copy of Report on Controls Placed
in Operation and Tests of Operating Effectiveness (SAS70 Report), as well as
future updates, as obtained.
Section 7. Account Valuation. Manager will value the securities in the
Account using independent pricing sources. All securities in the Account that
are listed and traded on a national securities exchange or on NASDAQ shall be
valued on the valuation date at the closing price on the principal market where
the securities are traded. All other securities shall be valued in accordance
with any reasonable valuation method selected by Manager, consistent with
industry accepted practices. While Manager does its best to obtain
representative market prices for all securities in the Account, such prices do
not always reflect the price actually received or paid on the open market.
Section 8. Manager's Fees. For Manager's services, Client will pay a
percentage of the value, as determined under Section 7 of this Agreement, of all
assets in the Account (excluding Unmanaged Assets) as of the last trading day of
each calendar month. The fees are payable at the end of each calendar quarter
for services provided by Manager during the prior three months. The percentage
amount of the fees is shown on Schedule A. In any partial quarter, the fees will
be reduced pro-rata based on the number of days the Account was managed.
4
Client will be billed directly by Manager and will pay Manager's fees
within 30 days of receiving the xxxx.
If Manager invests in securities issued by money market funds or other
investment companies for the Account, these securities will be included in the
value of the Account when Manager's fees are calculated. These same assets will
be subject to additional investment management and other fees that are paid by
the investment company but ultimately borne by its shareholders. These
additional fees are described in each investment company's prospectus.
Section 9. Proxy Voting. Proxies for securities in the Account should
be voted as follows:
[X] Client shall assume responsibility for proxy voting and directs
Manager not to vote proxies for securities held for the Account.
[ ] Client directs Manager to vote all proxies for securities held
for Client's Account in accordance with --
[ ] Manager's own discretion
or
[ ] Client's proxy voting guidelines attached as Schedule C.
Client will direct Custodian to send promptly all proxies and related
shareholder communications to Client and to identify them as relating to
Client's Account. If any proxy voting documentation is inadvertently sent to
Manager, Manager shall promptly forward any such documentation to Client.
These proxy voting instructions may be changed at any time by
notifying Manager in writing.
Section 10. Legal Proceedings. Manager will not provide legal advice
or act for Client in any legal proceedings, including bankruptcies or class
actions, involving securities held in the Account or issuers of those securities
or any other matter, but shall continue to monitor, manage and provide
investment advice regarding investments held in the Account\
Section 11. Risk. Manager cannot guarantee the future performance of
the Account, promise any specific level of performance or promise that its
investment decisions, strategies or overall management of the Account will be
successful. The investment decisions Manager will make for Client are subject to
various market, currency, economic, political and business risks, and will not
necessarily be profitable.
Section 12. Standard of Care; Limitation of Liability. Except as may
otherwise be provided by law, Manager will not be liable to Client for any loss
(i) that Client may suffer as a result of Manager's good faith decisions or
actions where Manager
5
exercises the degree of care, skill, prudence and diligence that a prudent
person acting in a like fiduciary capacity would use; (ii) caused by following
Client's instructions; or (iii) caused by the Custodian, any broker, dealer or
bank to which Manager directs transactions for the Account or any other person,
except to the extent such loss is caused by the failure of the Manager to
exercise reasonable care in the selection thereof.
Federal and state securities laws impose liabilities under certain
circumstances on persons who act in good faith, and this Agreement does not
waive or limit Client's rights tinder those laws.
Except for Manager's failure to comply with the Investment Guidelines
communicated in writing by Client to Manager, Manager will not be responsible
for Client's own compliance with the insurance investment laws of Client's state
of domicile or for Client's compliance with applicable tax laws.
In managing the Account, Manager will not consider any other
securities, cash, or other investments or assets Client owns for diversification
or other purposes. Manager shall have no responsibility whatsoever for the
management of the Unmanaged Assets or any assets of Client other than the
Account and shall incur no liability for any loss or damage which may result
from the management of such other assets.
Section 13. Client Directions. The names and specimen signatures of
each individual who is authorized to give directions to Manager on Client's
behalf under this Agreement are set forth on Schedule D. Directions received by
Manager from Client must be signed by at least one such person. If Manager
receives directions from Client which are not signed by a person that Manager
reasonably believes is authorized to do so, Manager shall not be required to
comply with such directions until it verifies that the directions are properly
authorized by Client.
Manager shall be fully protected in relying upon any direction signed
or given by a person that Manager reasonably believes is authorized to give such
directions on Client's behalf. Manager also shall be fully protected when acting
upon an instrument, certificate, or paper that Manager reasonably believes to be
genuine and to be signed or presented by any such person or persons. Manager
shall be under no duty to make any investigation or inquiry as to any statement
contained in any writing and may accept the same as conclusive evidence of truth
and accuracy of statements contained therein.
Section 14. Confidentiality. Except as Client and Manager otherwise
agree or as may be required by law, all information concerning the Account and
services provided under this Agreement shall be kept confidential.
Section 15. Non-Exclusive Agreement. Manager provides investment
advice to other clients and may give them advice or take actions for them, for
Manager's own accounts or for accounts of persons related to or employed by
Manager, that is different from advice provided to or actions taken for Client.
6
Manager is not obligated to buy, sell or recommend for Client's
Account any security or other investment that Manager may buy, sell or recommend
for other clients or for the account of Manager or its related persons or
employees.
If Manager obtains material, non-public information about a security
or its issuer that Manager may not lawfully use or disclose, Manager will have
no obligation to disclose the information to Client or to use it for Client's
benefit.
Section 16. Term of Agreement. Either Client or Manager may cancel
this Agreement at any time upon 30 days' written notice. This Agreement will
remain in effect until terminated. Termination of this Agreement will not affect
(i) the validity of any action that Manager or Client has previously taken; (ii)
the liabilities or obligations of Manager or Client for transactions started
before termination; or (iii) Client's obligation to pay Manager's fees through
the date of termination. Upon termination, Manager will have no obligation to
recommend or take any action with regard to the securities, cash or other assets
in the Account.
Section 17. Agreement Not Assignable. This Agreement may not be
assigned within the meaning of the Investment Advisers Act of 1940 (the
"Advisers Act") by Manager without Client's consent.
Section 18. Governing Law. The laws of the State of Connecticut will
govern this Agreement. However, nothing in this Agreement will be construed
contrary to any provision of the Advisers Act or the rules thereunder.
Section 19. Miscellaneous. If any provision of this Agreement is or
becomes inconsistent with any applicable law or rule, the provision will be
deemed rescinded or modified to the extent necessary to comply with such law or
rule. In all other respects, this Agreement will continue in full force and
effect. This Agreement contains the entire understanding between Manager and
Client and may not be changed except in writing signed by both parties. Failure
to insist on strict compliance with this Agreement or with any of its terms or
any continued conduct will not be considered a waiver by either party under this
Agreement.
Section 20. Notices. All notices and instructions with respect to the
Account or other matters covered by this Agreement may be sent by U.S. mail
express delivery services, facsimile, e-mail or other electronic means to Client
and to Manager at the addresses at the end of this agreement or to another
address provided in writing.
Section 21. Representations of Client. Client represents and warrants
to Manager that (a) Client is the beneficial owner of all assets in the Account
and except as specifically identified by Client, there are no restrictions on
transfer or sale of any of those assets; (b) this Agreement has been duly
authorized, Agreement delivered by Client and is Client's valid and binding
obligation; (c) the names of the individuals who are authorized to act under
this Agreement on behalf of Client have been given to Manager in writing; (d) no
government authorizations, approvals, consents, or filings not already obtained
are required in connection with the execution, delivery, or performance of this
7
Agreement by Client; and (e) Client certifies that it is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), nor a Person acting on behalf of any such plan.
Client agrees to notify Manager in writing within five (5) days after the
occurrence of an event making the above statement no longer accurate.
Client agrees to indemnify, defend and hold harmless Manager and its
officers, directors, agents, employees, shareholders, legal representatives,
successors and assigns, from and against any and all claims, actions, suits,
damages, costs, liabilities, judgments, losses, charges, costs and expenses,
including attorneys' fees, of Manager arising from any failure by Client to
accurately disclose its status under this Section or by reason of any defect in
Client's authority to appoint Manager under this Agreement.
Section 22. Representations of Manager. Manager represents and
warrants that this Agreement has been duly authorized, executed and delivered by
Manager and is its valid and binding obligation.
Section 23. Form ADV. Client has received and reviewed a copy of Part
II of Manager's Form ADV and a copy of this Agreement.
Section 24. Independent Contractor. The relationship of Manager to
Client is and shall remain during the term of this Agreement that of independent
contractor. Manager and Client are not partners or joint venturers with each
other under this Agreement, and nothing in this Agreement shall be construed so
as to make them partners or joint venturers, or to impose any liability as such
on either of them.
Section 25. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement. Delivery by facsimile of an executed signature page of this agreement
shall be effective as delivery of an executed counterpart hereof.
AGREED TO AND ACCEPTED BY:
GENERAL RE - NEW ENGLAND ALLEGHANY CORPORATION
ASSET MANAGEMENT, INC.
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------------------------- ----------------------------------------
By: Xxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
Its President ------------------------------------
Its: Executive Vice President
-----------------------------------
Pond View Corporate Center Principal Address:
00 Xxxxxxxxx Xxxx Xxxx 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Taxpayer Identification Number:
00-0000000
8
ALLEGHANY INSURANCE HOLDINGS LLC CAPITOL TRANSAMERICA CORPORATION
/s/ Xxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
------------------------------------- ----------------------------------------
By: Xxxxxx X. Xxxxx By: Xxxxx X. Xxxxx
--------------------------------- ------------------------------------
Its: Chairman of the Board and CEO Its: President and CEO
-------------------------------- -----------------------------------
CAPITOL INDEMNITY CORPORATION CAPITOL SPECIALTY INSURANCE CORPORATION
/s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
------------------------------------- ----------------------------------------
By: Xxxxx X. Xxxxx By: Xxxxx X. Xxxxx
--------------------------------- ------------------------------------
Its: President and CEO Its: President and CEO
-------------------------------- -----------------------------------
PLATTE RIVER INSURANCE COMPANY RSUI GROUP, INC.
/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx X. XxXxxxxx
------------------------------------- ----------------------------------------
By: Xxxxx X. Xxxxx By: Xxxxxxx X. XxXxxxxx
--------------------------------- ------------------------------------
Its: President and CEO Its: Senior VP, CFO, and Treasurer
-------------------------------- -----------------------------------
RSUI INDEMNITY COMPANY LANDMARK AMERICA INSURANCE COMPANY
/s/ Xxxxxxx X. XxXxxxxx /s/ Xxxxxxx X. XxXxxxxx
------------------------------------- ----------------------------------------
By: Xxxxxxx X. XxXxxxxx By: Xxxxxxx X. XxXxxxxx
--------------------------------- ------------------------------------
Its: Senior VP, CFO, and Treasurer Its: Senior VP, CFO, and Treasurer
-------------------------------- -----------------------------------
DARWIN GROUP, INC. DARWIN NATIONAL ASSURANCE COMPANY
/s/ Xxxx X. Xxxxxxx, Xx. /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------------- ----------------------------------------
By: Xxxx X. Xxxxxxx, Xx. By: Xxxx X. Xxxxxxx, Xx.
--------------------------------- ------------------------------------
Its: Senior VP and CFO Its: CFO and Treasurer
-------------------------------- -----------------------------------
9
