INVESTMENT MANAGEMENT AGREEMENT
Agreement, made this 12th day of February, 1998, between The
Palladian Trust (the "Trust"), a Massachusetts business trust, and Allmerica
Investment Management Company, Inc. (the "Manager"), a Massachusetts
corporation.
WHEREAS, the Trust is a diversified, open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Manager is registered as an investment adviser under
the Investment Advisers Act of 1940; and
WHEREAS, the Trust is authorized to issue shares of beneficial
interest in separate portfolios with each such portfolio representing interests
in a separate portfolio of securities and other assets; and
WHEREAS, the Trust currently offers shares of five portfolios
designated as The Value Portfolio, The Growth Portfolio, The International
Growth Portfolio, The Global Strategic Income Portfolio, and The Global
Interactive/Telecom Portfolio (collectively, the "Current Portfolios"); and
WHEREAS, the Trust may establish additional portfolios with respect
to which the Trust desires to retain the Manager to render management services
hereunder and with respect to which the Manager is willing to do so (those
portfolios plus the Current Portfolios are collectively referred to as the
"Portfolios"); and
WHEREAS, the Trust desires to avail itself of the services of the
Manager for the provision of advice with respect to the selection and monitoring
of portfolio managers for the Portfolios and for the provision of other services
for the Trust; and
WHEREAS, the Manager is willing to render such services to the
Trust.
Therefore, the parties agree as follows:
1. Appointment. The Trust hereby appoints the Manager to provide
management services with respect to the Current Portfolios for the period and on
the terms set forth in this Agreement, subject to the direction of the Board of
Trustees of the Trust (the "Board of Trustees"). The Manager accepts such
appointment and agrees to render the services described herein for the
compensation provided in paragraph 9, In the event the Trust establishes one or
more portfolios other than the Current Portfolios with respect to which it
desires to
retain the Manager to render management services pursuant to this Agreement, it
shall so notify the Manager in writing. If the Manager is willing to render such
services it shall so notify the Trust in writing, whereupon such portfolio shall
become a Portfolio as that term is used in this Agreement.
2. Services of the Manager. Subject to the supervision of the Board of
Trustees, the Manager shall provide the following management services with
respect to the Portfolios:
(a) The Manager shall analyze and recommend for consideration by the
Board of Trustees investment advisory firms to be retained by the Trust to
provide day-to-day investment management of the Portfolios (the "Portfolio
Managers").
(b) The Manager shall monitor and evaluate the performance of the
Portfolio Managers and make recommendations to the Board of Trustees concerning
the renewal or termination of agreements with Portfolio Managers (the "Portfolio
Management Agreements"), although the Manager is not authorized, except as
provided in paragraph 3 of the Agreement, to make determinations with respect to
the investment of a Portfolio's assets or the purchase or sale of securities or
other investments for a Portfolio.
(c) The Manager shall monitor the Portfolio Managers for compliance
with the investment policies and restrictions of each Portfolio, the 1940 Act,
the Internal Revenue Code, and all other applicable federal and state laws and
regulations.
(d) The Manager shall coordinate all matters relating to the
functions of the Trust's Manager, Portfolio Managers, custodian, transfer agent,
accountants, attorneys, and other parties performing services or operational
functions for the Trust.
(e) The Manager shall provide the Trust and the Portfolios with the
services of a sufficient number of persons competent to perform such
administrative and clerical functions as are necessary to provide effective
supervision and administration of the Trust.
(f) The Manager shall provide the Trust with adequate office space,
communications facilities, and other facilities necessary for its operations as
contemplated in this Agreement.
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(g) The Manager shall provide the Board of Trustees such periodic
and special reports as the Board may reasonably request.
(h) The Manager shall make its officers and employees available to
the Board of Trustees and officers of the Trust for consultation and discussions
regarding the administration and management of the Trust.
(i) The Manager shall provide such assistance as the Board of
Trustees shall reasonably request in connection with the conduct of meetings of
the Board or otherwise.
3. Investment Management Authority, In the event that a Portfolio
Management Agreement pertaining to a Portfolio is terminated or if, at any time,
no Portfolio Manager is engaged to manage the assets of a Portfolio, then the
Manager, subject to the supervision of the Board of Trustees, will provide
day-to-day investment management of any such Portfolio. The Manager will provide
investment research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Portfolio's assets by determining the securities
and other investments that shall be purchased, entered into, sold, closed, or
exchanged for the Portfolio, when these transactions should be executed, and
what portion of the assets of the Portfolio should be held in the various
securities and other investments in which it may invest. The Manager is hereby
authorized to execute and perform such services on behalf of the Portfolio. To
the extent permitted by the investment policies of the Portfolio, the Manager
shall make decisions for the Portfolio as to foreign currency matters and make
determinations as to, and execute and perform, foreign currency exchange
contracts on behalf of the Portfolio. The Manager will provide the services
under this Agreement in accordance with the Portfolio's investment objective or
objectives, policies, and restrictions as stated in the Trust's registration
statement under the Securities Act of 1933 and the 1940 Act as filed with the
Securities and Exchange Commission ("SEC") and amended from time to time (the
"Registration Statement"). Furthermore, under these circumstances:
(a) The Manager will use reasonable efforts to manage the Portfolio
so that it will (1) qualify as a regulated investment company under Subchapter M
of the Internal Revenue Code, (2) comply with the diversification requirements
of Section 817(h) of the Internal Revenue Code and regulations issued
thereunder, and (3) comply with any other rules and regulations pertaining to
investment vehicles underlying variable annuity or variable life insurance
policies. In managing the Portfolio in accordance with these
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requirements, the Manager shall be entitled to receive and act upon advice of
counsel to the Trust or counsel to the Manager.
(b) On occasions when the Manager deems the purchase or sale of a
security to be in the best interest of the Portfolio as well as any other
investment advisory clients, the Manager may, to the extent permitted by
applicable laws and regulations, including, but not limited to Section 17(d) of
the 1940 Act, but shall not be obligated to, aggregate the securities to be so
sold or purchased with those of its other clients where such aggregation is not
inconsistent with the policies set forth in the Registration Statement, In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Manager in a manner
that is fair and equitable in the judgment of the Manager in the exercise of its
fiduciary obligations to the Trust and to such other clients.
(c) In connection with the purchase and sale of securities for the
Portfolio, the Manager will arrange for the transmission to the custodian for
the Trust on a daily basis, such confirmation, trade tickets, and other
documents and information as may be reasonably necessary to enable the custodian
to perform its administrative and recordkeeping responsibilities with respect to
the Portfolio. With respect to portfolio securities to be purchased or sold
through the Depository Trust Company, the Manager will arrange for the automatic
transmission of the confirmation of such trades to the Trust's custodian.
(d) The Manager will assist the custodian or recordkeeping agent for
the Trust in determining, consistent with the procedures and policies stated in
the Registration Statement, the value of any portfolio securities or other
assets of the Portfolio for which the custodian or recordkeeping agent seeks
assistance or review from the Manager. The Manager will monitor on a daily basis
the determination by the custodian or recordkeeping agent for the Trust the
value of portfolio securities and other assets of the Portfolio and the
determination of net asset value of the Portfolio.
(e) The Manager will regularly report to the Board of Trustees on
the investment program for the Portfolio, and will furnish the Board of Trustees
such periodic and special reports as the Board may reasonably request.
(f) In rendering the services required under this paragraph, the
Manager may, from time to time, employ or associate with itself such person or
persons as it believes
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necessary to assist it in carrying out its obligations under this Agreement. The
Manager shall be responsible for making reasonable inquiries and for reasonably
ensuring that any employee of the Manager, any person or firm that the Manager
has employed or with which it has associated, or any employee thereof involved
in any material connection with the handling of Trust assets, has not, to the
best of the Manager's knowledge:
(i) been convicted, in the last ten (10) years, of any felony
or misdemeanor arising out of conduct involving embezzlement, fraudulent
conversion, or misappropriation of funds or securities, or involving
violations of Sections 1341, 1342, or 1343 of Xxxxx 00, Xxxxxx Xxxxxx
Code; or
(ii) been found by any state regulatory authority, within the
last ten (10) years, to have violated or to have acknowledged violation
of any provision of any state insurance law involving fraud, deceit, or
knowing misrepresentation; or
(iii) been found by any federal or state regulatory
authorities, within the last ten (10) years, to have violated or to have
acknowledged violation of any provisions of federal or state securities
laws involving fraud, deceit, or knowing misrepresentation.
(g) In connection with its responsibilities under this paragraph 3,
the Manager is responsible for decisions to buy and sell securities and other
investments for the Portfolio, broker-dealer selection, and negotiation of
brokerage commission rates. The Manager's primary consideration in effecting a
security transaction will be to obtain the best execution for the Portfolio,
taking into account the factors specified in the Registration Statement. Subject
to the Registration Statement and such policies as the Board of Trustees may
determine and consistent with Section 28(e) of the Securities Exchange Act of
1934, the Manager 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 Portfolio to pay a broker-dealer for effecting a portfolio
investment transaction in excess of the amount of commission another
broker-dealer would have charged for effecting that transaction, if the Manager
or its affiliate 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-dealer, viewed in terms of either that particular
transaction or the Manager's overall responsibilities with
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respect to the Portfolio and to its other clients as to which it exercises
investment discretion.
4. Conformity with Applicable Law. The Manager, in the performance of its
duties and obligations under this Agreement, shall act in conformity with the
Registration Statement and with the instructions and directions of the Board of
Trustees and will conform to, and comply with, the requirements of the 1940 Act
and all other applicable federal and state laws and regulations.
5. Exclusivity. The services of the Manager under this Agreement are not
to be deemed exclusive, and the Manager, or any affiliate Thereof, shall be free
to render similar services to other investment companies and other clients
(whether or not their investment objectives and policies are similar to those of
any of the Portfolios) and to engage in other activities, so long as its
services hereunder are not impaired thereby.
6. Documents. The Trust has delivered copies of each of the following
documents to the Manager and will deliver to it all future amendments and
supplements thereto, if any:
(a) the Trust's Declaration of Trust and its bylaws;
(b) the Registration Statement; and
(c) the prospectus and statement of additional information of the
Trust as currently in effect and as amended and supplemented from time to time.
7. Records. The Manager agrees to maintain and to preserve records
relating to the Trust as required by the 1940 Act. The Manager further agrees
that all records which it maintains for the Trust are the property of the Trust
and it will promptly surrender any of such records upon request.
8. Expenses. During the term of this Agreement, the Manager will pay all
expenses incurred by it in connection with its activities under this Agreement,
including all rent and other expense involved in providing office space and
equipment required by the Manager and the salaries and expenses of all personnel
of the Manager. The Manager further agrees to pay all salaries, fees and
expenses of any officer or trustee of the Trust who is an officer, director or
employee of the Manager or any of its affiliates. The Manager further agrees to
pay all rent and other expense in providing office space for the Trust. Nothing
in this Agreement shall require the Manager to bear the following expenses:
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(a) Fees of the Portfolio Managers;
(b) Charges for audits by the Trust's independent public
accountants;
(c) Charges of the Trust's transfer agent, registrar, and/or
dividend disbursing agent;
(d) Charges of the Trust's custodian and/or accountant;
(e) Costs of obtaining quotations for calculating the value of each
Portfolio's net assets;
(f) Costs of maintaining the Trust's tax records;
(g) Salaries and other compensation of any of the Trust's executive
officers and employees, if any, who are not officers, directors, or employees of
the Manager, or any of its affiliates;
(h) Taxes levied against the Trust;
(i) Brokerage fees and commissions in connection with the purchase
and sale of portfolio securities for the Trust;
(j) Costs, including the interest expense, of borrowing by the
Trust;
(k) Costs and/or fees incident to meetings of the Trust's
shareholders, the preparation and mailings of prospectuses, reports, proxy
statements and other communications by the Trust to its shareholders, the filing
of reports with regulatory bodies, the maintenance of the Trust's existence, and
the registration of shares with federal and state securities or insurance
authorities;
(1) The Trust's legal fees, including the legal fees related to the
registration and continued qualification of the Trust's shares for sale;
(m) Costs of printing stock certificates representing shares of the
Trust;
(n) Trustees' fees and expenses of Trustees who are not officers,
directors, or employees of the Manager or any of its affiliates;
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(o) The Trust's pro rata portion of the fidelity bond required by
Section 17(g) of the 1940 Act, or other insurance premiums;
(p) Membership dues for any association of which the Trust is a
member;
(q) Extraordinary expenses of the Trust as may arise, including
expenses incurred in connection with litigation, proceedings, other claims
against the Trust (unless the Manager is responsible for such expenses under
paragraph 10 of this Agreement), and the legal obligations of the Trust to
indemnify its trustees, officers, employees, shareholders, distributors, and
agents with respect to such claims; and
(r) Organizational and offering expenses of the Trust and, if
applicable, reimbursement (with interest) of underwriting discounts and
commissions.
9. Compensation.
(a) For the services provided and the expenses borne by the Manager
pursuant to this Agreement, each Portfolio will pay the Manager a fee calculated
in accordance with this paragraph 9.
(b) A Portfolio will pay the Manager 20% of the Initial Monthly
Advisory Fee or the Monthly Advisory Fee, as those terms are defined in this
paragraph, whichever is applicable; provided, however, that for any period
during which the Manager is providing the services described in paragraph 3, a
Portfolio will pay the Manager 100% of the Initial Monthly Advisory Fee or the
Monthly Advisory Fee, as those terms are defined in this paragraph, whichever is
applicable.
(c) For the period beginning with the day on which a Portfolio
commences investment operations and ending with the last day of the twelfth full
calendar month thereafter, the Portfolio will pay at the end of each month, an
advisory fee calculated at an annual rate of 0.80% of the Portfolio's average
daily net assets (the "Initial Monthly Advisory Fee").
(d) For the period beginning with the first day of the thirteenth
full calendar month after which a Portfolio commences operations and continuing
through the remainder of the term of this Agreement, the Portfolio will pay at
the end of each month, an advisory fee (the "Monthly Advisory Fee"). The Monthly
Advisory Fee equals the Basic Fee (as defined in paragraph 9(e) below) plus the
Incentive Fee (as defined in
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paragraph 9(f) below) and adjusted, if so required, by paragraph 9(i) below.
(e) The Basic Fee equals one-twelfth of 2% multiplied by the
Portfolio's average daily net assets for the previous 12 months (including the
month for which the fee is being calculated).
(f) The Incentive Fee equals: (i) one-twelfth of the Annual
Incentive Fee set forth in the chart below based on the difference between the
Performance of the Portfolio and the Performance of the Benchmark, as those
terms are defined in paragraphs 9(g) and 9(h) below; (ii) multiplied by the
Portfolio's average daily net assets for the previous 12 months (including the
month for which the fee is being calculated).
================================================================================
Annual
Percentage Point Difference Between Performance of the Incentive
Portfolio and Performance of the Benchmark Fee (%)
================================================================================
+7.5 or greater 2.0%
--------------------------------------------------------------------------------
+6.0 or greater, but less than +7.5 1.5
--------------------------------------------------------------------------------
+4.5 or greater, but less than +6.0 1.0
--------------------------------------------------------------------------------
+3.0 or greater, but less than +4.5 0.5
--------------------------------------------------------------------------------
+1.5 or greater, but less than +3.0 0.0
--------------------------------------------------------------------------------
0.0 or greater, but less than +1.5 -0.5
--------------------------------------------------------------------------------
-1.5 or greater, but less than 0.0 -1.0
--------------------------------------------------------------------------------
-3.0 or greater, but less than -1.5 -1.5
--------------------------------------------------------------------------------
Less than -3.0 -2.0
================================================================================
(g) The Performance of the Portfolio will be calculated by first
determining the change in the Portfolio's net asset value per share during the
previous twelve months (including the month for which the fee is being computed)
assuming the reinvestment of distributions during that period, and then
expressing this amount as a percentage of the net asset value per share at. the
beginning of the period. Net asset value per share is calculated by dividing the
value of the securities held by the Portfolio plus any cash or other assets
minus all liabilities including accrued advisory fees and the other expenses, by
the total number of shares outstanding at the time, The Performance of the
Portfolios shall be calculated in accordance with SEC rules.
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(h) The Performance of the Benchmark will be calculated by first
determining the change in the level of the Benchmark during the previous twelve
months (including the month for which the fee is being computed) plus the value
of any cash dividends or distributions made by the companies whose securities
comprise the Benchmark accumulated to the end of the period, and then expressing
this amount as a percentage of the Benchmark at the beginning of the period. The
Performance of the Benchmark shall be calculated in accordance with SEC rules.
The Benchmark for each Portfolio is the Benchmark established by the agreement
between the Trust and the Portfolio Manager for that Portfolio. If any Benchmark
ceases to be published, changes in any material respect or otherwise becomes
impracticable to use for purposes of the Incentive Fee, the Monthly Advisory Fee
for that Portfolio will equal the Basic Fee (with no incentive adjustment) until
such time as the Board of Trustees approves a substitute Benchmark.
(i) Notwithstanding paragraphs 9(a)-9(h) above, if the Performance
of a Portfolio (minus payment of all expenses, including the Basic Fee and any
Incentive Fee) is negative and does not exceed the Performance of the Benchmark
by six percentage points, then the Monthly Advisory Fee will equal zero.
Notwithstanding paragraphs 9(a)-9(h) above, if the Performance of a Portfolio
(minus payment of all expenses, including the Basic Fee and any Incentive Fee)
is negative, exceeds the Performance of the Benchmark by six percentage points,
but does not exceed the Performance of the Benchmark by twelve percentage
points, then the Monthly Advisory Fee will not be greater than one-twelfth of 1%
of the Portfolio's average daily net assets for the previous 12 months
(including the month for which the fee is being calculated). Notwithstanding
paragraphs 9(a)-9(h) above, if the Performance of a Portfolio (minus payment of
all expenses, including the Basic Fee and any Incentive Fee) is negative and
exceeds the Performance of the Benchmark by twelve percentage points, then the
Monthly Advisory Fee will not be greater than one-twelfth of 2% of the
Portfolio's average daily net assets for the previous 12 months (including the
month for which the fee is being calculated)
10. Liability and Indemnification. The Manager and the Trust each may rely
on information reasonably believed by it to be accurate and reliable. The
Manager shall not be liable for any loss suffered by the Trust as the result of
actions by persons other than the Manager or for any loss suffered by the Trust
as the result of any negligent act or error of judgment of the Manager in
connection with the matters to which this Agreement relates, except a loss
resulting from a breach by the Manager of its fiduciary duty with respect to the
receipt
Page 10
of compensation for services (in which case any award of damages shall be
limited to the period and the amount set forth in Section 36(b)(3) of the 0000
Xxx) or loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties under this Agreement or from
reckless disregard by it of its obligations and duties under this Agreement. The
Trust shall indemnify the Manager and hold it harmless from all cost, damage and
expense, including reasonable expenses for legal counsel, incurred by the
Manager resulting from actions for which it is relieved of responsibility by
this paragraph. The Manager shall indemnify the Trust and hold it harmless from
all cost, damage and expense, including reasonable expenses for legal counsel,
incurred by the Trust resulting from (i) a breach by the Manager of its
fiduciary duty with respect to compensation for services paid by the Trust (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the 1940 Act); (ii) willful misfeasance, bad
faith or gross negligence by the Manager in the performance of its duties under
this Agreement; or (iii) reckless disregard by the Manager of its obligations
and duties under this Agreement.
11. Continuation and Termination. This Agreement shall take effect on the
date first written above, and shall continue in effect, unless sooner terminated
as provided herein, for 119 days thereafter, and provided that the Agreement is
approved by a majority of the outstanding voting shares of the Trust by the end
of such 119th day, shall continue for two years from the date of this Agreement,
and shall continue from year to year thereafter with respect to each Portfolio
so long as such continuance is specifically approved at least annually (i) by
the vote of a majority of the Board of Trustees; or (ii) by vote of a majority
of the outstanding voting shares of the Portfolio; provided, further, in either
event that continuance is also approved by the vote of a majority of the Board
of Trustees who are not parties to this Agreement or "interested persons" (as
defined in the 0000 Xxx) of the Trust or the Manager, cast in person at a
meeting called for the purpose of voting on such approval. Any approval of this
Agreement by the holders of a majority of the outstanding shares (as defined in
the 0000 Xxx) of a Portfolio shall be effective to continue this Agreement with
respect to such Portfolio notwithstanding (i) that this Agreement has not been
approved by the holders of a majority of the outstanding shares of any other
Portfolio or (ii) that this Agreement has not been approved by the vote of a
majority of the outstanding shares of the Trust, unless such approval shall be
required by any other applicable law or otherwise. This Agreement may be
terminated by the Trust at any time, without the payment of any penalty, by vote
of a majority of the entire Board of
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Trustees or by a vote of a majority of the outstanding voting shares of the
Trust, or with respect to a Portfolio, by vote of a majority of the outstanding
voting shares of such Portfolio, on sixty (60) days' written notice to the
Manager, or by the Manager at any time, without the payment of any penalty, on
ninety (90) days' written notice to the Trust. This Agreement will automatically
and immediately terminate in the event of its "assignment" (as defined in the
1940 Act).
12. Independent Contractor. The Manager shall for all purposes herein be
deemed to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized by the Board of Trustees from time to time, have
no authority to act for or represent the Trust in any way or otherwise be deemed
its agent.
13. Notice. Notices of any kind to be given to the Manager by the Trust
shall be in writing and shall be duly given if sent by first class mail or
delivered to the Manager at 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, or at such
other address or to such individual as shall be specified by the Manager to the
Trust. Notices of any kind to be given to the Trust by the Manager shall be in
writing and shall be duly given if sent by first class mail or delivered to 000
Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, or at such other address or to such
individual as shall be specified by the Trust to the Manager.
14. Obligation. A copy of the Trust's Agreement and Declaration of Trust
is on file with the Secretary of the Commonwealth of Massachusetts. Notice is
hereby given that this Agreement has been executed on behalf of the Trust by a
trustee of the Trust in his or her capacity as trustee and not individually. The
obligations of this Agreement shall only be binding upon the assets and property
of the Trust and shall not be binding upon any trustee, officer, or shareholder
of the Trust individually.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
16. Applicable law. This Agreement shall be governed by the laws of
Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Investment Advisers Act of 1940, or any
rules or order of the SEC thereunder.
17. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not
Page 12
be affected thereby and, to this extent, the provisions of this Agreement shall
be deemed to be severable.
18. Captions. The captions of this Agreement are included for convenience
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their officers designated below on the day and year first
above written.
The Palladian Trust
/s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------- --------------------------------
Witness Xxxxxxx X. Xxxxxx
Trustee
Allmerica Investment
Management Company, Inc.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Witness
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