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EXHIBIT 10(iii)
INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT dated as of the 20th day of December 1995
BETWEEN:
THE BANK OF NOVA SCOTIA, a Canadian chartered bank, having
its executive offices in the City of Toronto, in the Province
of Ontario
(The "Bank"),
-and-
GUARDIAN TIMING SERVICES, INC., a corporation incorporated
under the laws of Canada, having its registered office in the
City of Toronto, in the Province of Ontario,
(the "Investment Manager")
RECITALS:
A. Whereas the Bank wishes to have the Investment Manager manage an investment
portfolio (the "Portfolio") on behalf of the Bank or one or more of its
subsidiaries in Ontario using market timing signals generated by the software
developed by the Investment Manager and/or Bearhill Limited, known as "ITM
Software" (the "Software") and the parties desire to set forth certain terms
relating to the activities and responsibilities of the Bank and the Investment
Manager in such regard.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter contained, it is agreed by and between the parties
hereto as follows:
DEFINITIONS AND INTERPRETATIONS
1. In this Agreement, except where the context otherwise requires:
(a) "Agreement" means this Investment Management Agreement as the same may
be amended from time to time and "herein", "hereof", "hereby", "hereunder" and
similar expressions refer to this Agreement and include every instrument
supplemental or ancillary to this Agreement and, except where the context
otherwise requires, not to any particular article, section or subsection
thereof;
(b) "Bank" shall include such subsidiaries and affiliates of The Bank of
Nova Scotia, where the Bank has requested that the Portfolio be managed by the
Investment Manager on behalf of such subsidiaries and affiliates;
(c) "business day" shall mean each day on which The New York Stock
Exchange is open for business;
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(d) "Custodian" shall mean the custodian of the assets of the Portfolio as
appointed by the Bank from time to time.
(e) "Person" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, company or corporation with or without
share capital, executor, administrator or other legal personal representative,
regulatory body or agency, government or governmental agency, authority or
entity however designated or constituted; and
(f) "Securities Authorities" means the Ontario Securities Commission and
equivalent regulatory authorities in each Province and Territory of Canada.
APPOINTMENT OF THE INVESTMENT MANAGER
2. The Bank hereby appoints the Investment Manager as the investment manager of
the Portfolio with full authority and responsibility to provide or cause to be
provided to the Portfolio, the investment management and related administrative
services hereinafter set forth and the Investment Manager hereby accepts such
appointment and agrees to act in such capacity and to provide or cause to be
provided such investment management and related administrative services upon
the terms set forth in this Agreement.
DUTIES OF THE INVESTMENT MANAGER
3. The Investment Manager shall, during the term of this Agreement and any
renewal thereof:
(a) manage the Portfolio and shall cause to be made the decisions as to
the purchase and sale of the Portfolio's securities in accordance with the
indicators provided by the Software and decisions as to the execution of all
portfolio transactions, including selection of market, dealer or broker and the
negotiation, where applicable, of commissions or service charges, provided that
the Investment Manager shall use Scotia XxXxxx, Inc. and/or its affiliates as
the dealer for the Portfolio whenever it is convenient and reasonable to do so;
(b) provide written instructions to the Custodian respecting the delivery
and acceptance of the Portfolio's securities on the purchase or sale of such
securities;
(c) comply with and enter into contracts with all sub-investment managers
and advisors appointed by it, with the prior written approval of the Bank, with
respect to the Portfolio;
(d) in accordance with the instructions of the Bank, execute and deliver,
or cause to be executed and delivered, proxies and vote or withhold from
voting, or cause to be voted or withheld from voting, securities held as part
of the Portfolio from time to time.
(f) ensure that all securities legislation is complied with in connection
with the operation of the Portfolio and the execution and delivery of all
necessary documents and certificates in connection therewith, as may be
requested by the Bank from time to time;
(g) to provide any assistance to the Bank which may be required to prepare
and file or cause to be prepared and filed all returns, reports and filings
which may be required from time to time by any municipal, provincial, federal
or other governmental authority and including, without limitation, such
returns, reports and filings which may be required pursuant to the Income Tax
Act (Canada) and applicable laws, regulations, requirements or policies of the
Securities Authorities; and
(h) provide or cause to be provided services as may be reasonably
requested by the Bank in respect of the Portfolio's daily operation, including
providing the prices of individual securities as often as may be reasonably
required by the Bank.
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With regard to paragraphs (g) and (h) above the Bank shall pay to the
Investment Manager its reasonable costs and expenses incurred by the Investment
Manager with regard to meeting its obligations thereunder.
4. The Investment Manager may engage or retain any persons for the provision of
certain portfolio management services in connection with the Portfolio, with
the prior written approval of the Bank.
STANDARD OF CARE
5. The Investment Manager shall exercise the powers granted hereunder and
discharge its duties hereunder honestly, in good faith, and in connection
therewith, shall exercise the degree of care, diligence and skill that a
reasonably prudent investment manager would exercise in the circumstances.
The Investment Manager represents and warrants that as at the date hereof
it has, and covenants that it has, and covenants that it will maintain during
the currency of this Agreement, for its own account, all necessary licenses or
registrations which it is required to have in order to perform its duties and
obligations pursuant to this Agreement.
REPORTING OBLIGATION OF THE INVESTMENT MANAGER
6. The Investment Manager agrees that it shall maintain or cause to be
maintained complete records of all transactions in respect of the Portfolio as
may be required under applicable laws and as the Bank may otherwise reasonably
request, and to provide or cause to be provided to the Bank, on a timely basis,
such reports as the Bank may reasonably require. The Bank shall pay to the
Investment Manager, its reasonable costs and expenses incurred by the
Investment manager with regard to meeting its obligations thereunder.
FEES AND EXPENSES
7. In consideration of the duties performed by the Investment Manager pursuant
to the terms of this Agreement, the Investment Manager shall receive from the
Bank, either directly or as a charge to the Portfolio, as the Bank may direct
an investment management fee (the "Investment Management Fee") as determined in
accordance with Schedule "A" hereto.
LIABILITY OF THE INVESTMENT MANAGER
8. The Investment Manager shall not be liable to the Bank for any loss or
damage relating to any matter regarding the Portfolio, including any loss or
diminution in the value of the Portfolio. Nothing herein shall be deemed to
protect the Investment Manager against any liability to the Bank in any
circumstance where there has been negligence, willful default or dishonesty on
the part of the Investment Manager or to the extent the Investment Manager may
have failed to fulfill its duties and obligations as set forth in this
Agreement.
9. The Investment Manager shall not be liable to the Bank for the acts,
omissions, receipts, neglects or defaults of any person, firm or corporation
employed or engaged by it as permitted hereunder, or for any loss, damage or
expense caused to the Portfolio or the Bank through the insufficiency or
deficiency of any security in or upon which any of the monies of or belonging
to the Portfolio shall be laid out or invested, or for any loss or damage
arising from the bankruptcy, insolvency or tortious act of any person, firm or
corporation with whom or which any monies, securities or property of the
Portfolio shall be lodged or deposited, or for any loss occasioned by error in
judgment on the part of the Investment Manager, or for any other loss, damage
or misfortune which may happen in the execution by the Manager of its duties
hereunder, except to the extent set out in the last sentence of paragraph 8.
10. The Investment manager may rely and act upon any statement, report or
opinion prepared by or any advice received from auditors, solicitors, notaries
or other professional advisors of the Investment Manager and shall not be
responsible or held liable for any loss or damage resulting from relying or
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acting thereon if the advice was within the area of professional competence of
the person from whom it was received and the Investment Manager acted
reasonably in relying thereon.
TERM
11. This Agreement shall continue in full force and effect until Agreement is
terminated by either party by giving at least 30 days notice prior to the last
business day of a calendar month (or such shorter period as the parties may
agree) to the other of such termination.
12. During the term of this Agreement the Investment Manager shall make
available to the Bank for inspection on reasonable notice, and upon termination
of this Agreement the Investment Manager shall forthwith deliver to the Bank
all records, documents and books of account related to the Portfolio.
13. Upon termination of this Agreement the Bank shall pay to the Investment
Manager such fees as may be due as of the date of termination and shall
reimburse the Investment Manager for its expenses and disbursements to which it
is entitled hereunder as of the date of such termination.
AMENDMENTS OF THIS AGREEMENT
14. This Agreement may not be amended or modified in any respect except by
written instrument signed by the parties hereto and any proposed change shall
not be effected without compliance with applicable requirements of the
Securities Authorities.
NOTICES
15. Any notice, request or direction required or permitted to be given
hereunder shall be in writing and shall be properly given, if delivered
personally or by facsimile transmission, addressed to The Bank of Nova Scotia,
00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X00X 0X0, Attention: Executive Vice
president, Investment Banking, and to the Investment Manager at Guardian Timing
Services, Inc., 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, X0x
0X0, Attention: President, or to such other address as either party may from
time to time specify by notice given in accordance herewith.
MISCELLANEOUS PROVISIONS
16. This Agreement shall be subject to and construed in accordance with the
laws of the Province of Ontario and each of the Bank and the Investment Manager
hereby irrevocably attorns to the jurisdiction of the courts thereof.
17. This Agreement may be assigned to an affiliate of the Investment Manager,
but otherwise shall not be assignable by either party hereto, without the
express prior written consent of the other party hereto. Written notice of any
assignment to an affiliate of the Investment Manager must be provided to the
Bank not less than 10 days in advance of such assignment.
18. The Investment Manager, may not directly or indirectly, advise any third
party of its role as investment manager of the Portfolio, without the prior
written consent of the Bank, save for such advice which it may be required to
provide to governmental authorities or by court order.
19. This Agreement may be executed in any number of counterparts all of which
taken together shall constitute this Agreement.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year first above written.
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxx X. Xxxxxx
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GUARDIAN TIMING SERVICES INC.
By: /s/ J.P. Fruchet
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SCHEDULE "A"
1. The initial size of the Portfolio shall be C$10 million. The Investment
Manager shall manage the Portfolio in pursuit of the objectives but subject to
the constraints set forth in the Investment Objectives and Guidelines that the
Bank and the Investment Manager shall agree on from time to time. If the Bank
requests, the Portfolio shall be divided into sub-portfolios, which shall be
managed in accordance with different investment objectives, different
investment guidelines or both (e.g., as a mutual fund which complies with
national Policy 39), always provided that no sub-portfolio may be established
in an initial amount less than C$5 million.
2. The Bank shall pay all fees and bonuses to the Investment Manager from the
assets in the Portfolio, always provided that each such payment shall require
the specific authorization of the Executive Vice President, Investment Banking,
which shall not be withheld unreasonably.
3. The fee payable to the Investment Manager shall be 1/12 of one percent per
month of the net asset value of the Portfolio (net of all costs and expenses
paid or accrued earlier and net of all fees and bonuses paid or accrued
earlier), determined at the end of each month and payable quarterly.
4. There may be a bonus payable annually to the Investment Manager. This bonus
shall be determined by the more restrictive of two calculations.
(a) On the first calculation, the bonus shall be payable only if the
year's growth in net asset value of the Portfolio (net of all costs
and expenses paid earlier and net of all fees and bonuses paid
earlier), expressed in percentage terms, exceeds the year's rate of
return of the S&P 500 Total Return Index. The bonus shall be 20% of
the product of (I) the difference between the two percentage rates
multiplied by (ii) the initial net asset value of the Portfolio for
that year.
For purposes of determining the year's rate of return of the S&P 500
Total Return Index, the base figure for the initial period shall be
the level of the S&P 500 Total Return Index at the close on 22 April
1996, and the final figure for the initial period shall be the level
of the S&P 500 Total Return Index at the close on 31 December 1996 or,
if applicable, the date of termination of the Investment Management
Agreement before 31 December 1996. After such initial period, the base
figure for each calendar year shall be the level of the S&P 500 Total
Return Index at the close on the last business day of the preceding
calendar year, and the final figure shall be the level of the S&P 500
Total Return Index at the close on the last business day of the
calendar year for which a bonus is being calculated or, if applicable,
the date of termination of the Investment Management Agreement during
such calendar year. For purposes of determining the year's growth in
net asset value of the Portfolio, the same dates and times shall
apply.
(b) On the second calculation, however, the bonus shall be payable
only if the cumulative growth in net asset value of the Portfolio (net
of all costs and expenses paid or accrued earlier and net of all fees
and bonuses paid or accrued earlier) since inception, expressed in
percentage terms, exceeds the cumulative rate of return of the S&P 500
Total Return Index over the same period of time. The bonus shall be
such that the sum of all bonuses paid since the inception of the
Portfolio does not exceed 20% of the product of (i) the difference
between the two cumulative percentage rates multiplied by (ii) the net
asset value of the Portfolio at inception. For greater certainty, the
two percentage rates shall be expressed not on a per annum basis but
on the basis of the entire term of the Portfolio since inception.
For purposes of determining the cumulative rate of return of the S&P
500 Total Return Index, the base figure shall be the level of the S&P
Total Return Index at the close on 22 April 1996, and the final figure
shall be the level of the S&P Total Return Index at the close on the
last business
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day of the calendar year for which a bonus is being calculated or, if
applicable, the date of termination of the Investment Management
Agreement during such calendar year. For purposes of determining the
cumulative growth in net asset value of the Portfolio, the same dates
and times shall apply.
5. For purposes of calculating all fees and bonuses payable hereunder,
all calculations shall be based on U.S. dollars, but all fees and bonuses shall
be payable in Toronto in Canadian dollars based on mid-market conversion rates
at the time of payment.
6. The minimum fee and bonus payable to the Investment Manager shall be
C$50,000 per annum or part thereof.
7. The Bank shall pay any GST payable on all fees and bonuses payable
hereunder.
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INVESTMENT OBJECTIVES AND GUIDELINES
GUARDIAN TIMING SERVICES PORTFOLIO
EFFECTIVE 22 APRIL 1996
Objective: To realize a total rate of return by investing in a portfolio
of principally U.S. securities.
Benchmark: The S&P 500 Total Return Index.
Guidelines: 1. The Investment Manager shall rely exclusively on the
systematic use of his proprietary computer-generated market
timing signals and his proprietary computer-generated
stock-picking techniques.
2. The Investment Manager may buy and sell U.S. dollar-
denominated money market instruments, U.S. stocks, Canadian
stocks and other stocks (collectively, Securities).
3. The Investment Manager retains the right (which, however, he
does not anticipate exercising) to buy and sell
exchange-traded convertible debentures, exchange-traded
warrants and exchange-traded options (collectively,
Derivative Securities).
4. The Investment Manager may buy and short S&P 500 Stock Index
futures contracts.
5. When the proprietary timing model generates a buy signal, the
Investment Manager may take a long position in equities as
great as the net asset value of the Portfolio. He shall do so
using stocks selected by his proprietary stock-picking
techniques. He also may take a long position in S&P 500 Stock
Index futures contracts.
6. When the proprietary timing model generates a sell signal,
the Investment Manager shall sell any existing long position
in S&P 500 Stock Index futures contracts, may retain the
existing long position in equities and may take a short
position in S&P 500 Stock Index futures contracts.
7. When the proprietary timing model generates a short signal,
the Investment manager shall take an additional short
position in S&P 500 Stock Index futures contracts.
Limits: 1. No more than 10% of the net asset value of the portfolio at
time of purchase shall be invested in stocks other than U.S.
and Canadian stocks.
2. No more than 10% of the net asset value of the Portfolio at
time of purchase shall be invested in exchange-traded
warrants and exchange-traded options, taken together.
3. The value of the long position in Securities and Derivative
Securities plus the underlying value of the long position in
S&P 500 Stock Index futures contracts shall not exceed 200%
of the net asset value of the portfolio.
4. The underlying value of the short position in S&P 500 Stock
Index futures contracts shall not exceed 200% of the net
asset value of the portfolio.
5. For purposes of monitoring, the Bank and the Investment
Manager shall agree from time to time in writing on the
maximum number of S&P 500 Stock Index futures contracts that
the Investment Manager may use. Initially, they agree that
the Investment Manager shall be long no more than 22
contracts and shall be short no more than 44 contracts.
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Approvals: The Investment manager shall act as a fully discretionary
manager within the limits fixed by these Investment
Objectives and Guidelines.
Clearing Broker: ScotiaMcLeod Inc. shall act as clearing broker for all
transactions in the Portfolio.
Custodian: ScotiaMcLeod Inc. shall act as custodian of the Portfolio.
Voting: ScotiaMcLeod Inc. as custodian shall execute all proxies for
voting of the securities in the Portfolio.
Monitor: The Bank's Integrated support Services shall monitor the
Investment manager's compliance with those parts of these
Guidelines that define:
1. the types of security that the Investment Manager may buy,
sell or short;
2. the percentage of the net asset value of the portfolio that
the Investment Manager may invest in stocks other than U.S.
and Canadian stocks.
3. the percentage of the net asset value of the portfolio that
the Investment Manager may invest in exchange-traded warrants
and exchange-traded options; and
4. the number of S&P 500 Stock Index futures contracts that the
Investment Manager may buy or short.
I.S.S. shall monitor daily. I.S.S. shall report any exceptions
no later than the following day to the Executive Vice
President, Investment Banking and to the Assistant General
Manager, Investments.
Reporting
Procedure: ScotiaMcLeod Inc. As custodian shall report monthly to the
E.V.P., Investment Banking, the A.G.M., Investments and the
A.G.M., International Banking Division. The report shall
include a list of all transactions, a statement and valuation
of assets and any other information required from time to
time by the E.V.P., Investment Banking, acting reasonably.
Responsibilities: Upon due notice from the E.V.P., Investment Banking or the
A.G.M., Investments, both the Investment Manager and
ScotiaMcLeod, Inc. Shall permit the Bank's external and
internal auditors access to all relevant information.
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