DOC 2
Exhibit 5(a)
INVESTMENT MANAGEMENT AGREEMENT
Agreement, made the 12th day of February, 1998, and amended the 9th
day of April, 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/Telecomm 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 by-laws;
(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;
(l) 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 effective date of a
Portfolio Management Agreement with a new Portfolio Manager (or, for those
Portfolios that have had only one Portfolio Manager, the day on which the
Portfolio commenced 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 the effective date of a Portfolio Management
Agreement with a new Portfolio Manager (or, for those Portfolios that have
had only one Portfolio
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Manager, the first day of the thirteenth full calendar month after the
Portfolio commenced 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 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 Portfolio Incentive
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
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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.
(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
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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 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
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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 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, Xxxxxxxxx, 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, Xxxxxxxxx, 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.
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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 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
By:
---------------------------- --------------------------
Witness Xxxxxx X. Xxxx
Assistant Secretary
Allmerica Investment
Management Company, Inc.
By:
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Witness
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