INVESTMENT MANAGEMENT AGREEMENT
Witnesseth this AGREEMENT, effective January 29, 1997 by and between the
undersigned PXRE CORPORATION (the "Client") and PHOENIX INVESTMENT COUNSEL, INC.
(the "Manager") a corporation organized pursuant to the laws of The Commonwealth
of Massachusetts, with its home office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx.
In consideration of the mutual covenants contained herein, the parties hereto
agree as follows:
1. APPOINTMENT OF MANAGER
Client hereby engages the Manager and delegates to the Manager the power
to manage (including the power to acquire or dispose of), in accordance with the
terms and conditions of this Agreement, the assets of the Account. The "Account"
shall mean the assets of the Client which are acceptable to the Manager and
which by notice given or caused to be given by the Client to the Manager are
placed in the Account, and the investments and reinvestments of, and all income
earned by, or distributions received with respect to, any assets in the Account,
subject to the provisions of paragraph 3 of this Agreement. The Client may make
any addition to or withdrawal from the Account at any time and in any amount
that the Client determines, so long as the Client promptly notifies the Manager
in writing of any addition to the Account and the amount of the addition, and so
long as the Client makes no withdrawal from the Account without first delivering
to the Manager within a reasonable time prior to the withdrawal, written notice
of the intended withdrawal and the amount of the withdrawal.
2. ACCEPTANCE BY MANAGER
The Manager hereby acknowledges and agrees to the engagement provided in
paragraph 1 hereof, and acknowledges and warrants that it is duly registered
with the Securities and Exchange Commission as an investment adviser under the
Investment Advisers Act of 1940.
3. INVESTMENT DIRECTION
The Client's fundamental investment policies and any applicable
investment guidelines are set forth in Part I of Schedule A attached hereto and
made a part hereof. The Client hereby directs the Manager to select investments
for the Account in compliance with such policies and in accordance with such
guidelines.
Unless and until notice in writing to the contrary is given or caused to
be given by the Client to the Manager, all interest payments and other
distributions with respect to any security or other property in the Account
shall be reinvested.
Upon receiving written notice from the Client that a specified cash
amount is required from the Account, the Manager shall liquidate such portion of
the Account as may be necessary to provide the specified cash amount. The
Manager shall in its sole discretion select the assets of the Account to be
liquidated in such event, provided that the investment guidelines set forth in
Schedule A shall be complied with to the extent possible after giving effect to
such liquidation. The directions contained herein may be modified at any time by
the Client by notice in writing to the Manager.
4. CUSTODY OF SECURITIES
The Client will establish and maintain a custody account with a
custodian ("Custodian") acceptable to the Manager for all assets in the Account.
The Custodian shall be such entity as the Client may designate from time to time
by notice given or caused to be given in writing to the Manager. The Client
agrees to give the Manager at least thirty (30) days' written notice of any
change of Custodian. The Client shall cause the Custodian to inform the Manager
promptly of all assets placed in such Account by the Client and to establish
reporting and accounting arrangements such that the Manager will be kept advised
as to the value of the investments (including cash and cash equivalents) held in
the Account.
5. MANAGER'S AUTHORITY
Subject to the provisions of paragraph 3 and Schedule A of this
Agreement, the Manager is authorized by the Client to invest, sell and reinvest
the assets of the Account as it deems appropriate. The Manager is not authorized
to take physical possession of the assets of the Account; and the Custodian
shall have sole responsibility for holding and safekeeping the assets. The
Custodian shall make settlement of purchases and sales of such assets upon
orders placed by the Manager pursuant to the Custodian's established operating
procedures. The Manager shall promptly notify the Custodian in writing of any
purchase or sale made for the Account.
The Manager shall select brokers and dealers for any purchase or sale of
assets of the Account. The Manager may, in the allocation of portfolio brokerage
business and the payment of brokerage commissions, consider the brokerage and
research services furnished the Manager by brokers and dealers, in accordance
with the provisions of Section 28(e) of the Securities Exchange Act of 1934, as
amended.
The Manager will not be required to take any action, or render any
advice, with respect to the voting of any of the securities in the Account and
Client agrees to be solely responsible for the voting of any such securities and
for any required recordkeeping with respect thereto.
6. DOCUMENTATION TO BE FURNISHED
The Manager shall keep accurate and detailed accounts of any
investments, receipts and disbursements, and other transactions hereunder, and
all such accounts and the books and records relating thereto shall be open to
inspection at all reasonable times by the Client and by any other person
entitled by law to inspect such records.
Upon written request, the Manager will make available to the Client any
information in the Manager's possession which may be required by the Client in
fulfilling any reporting, disclosure, or recordkeeping obligation imposed on the
Client by applicable law.
7. APPRAISAL; DETERMINATIONS OF VALUE
The Manager will provide the Client with an appraisal of the Account as
of the last day of each calendar quarter on which the New York Stock Exchange is
open (the "Appraisal Date") during the term of this Agreement. Such appraisal
shall include a written statement of each individual asset held in the Account
on the Appraisal Date. Common stock, preferred stock, voting trust certificates,
rights, warrants and other similar securities for which market quotations are
readily available are valued at market value, which is determined using the last
reported sale price, or, of no sales are reported, the last reported bid price.
Bonds, debentures, notes and other fixed income securities of similar nature,
whether or not traded on a national securities exchange, shall be valued in
accordance with any reasonable valuation method selected by the Manager which is
based on sales prices of the same or comparable securities on or reasonably
preceding the Appraisal Date. Other securities and all other assets will be
valued at fair market value as determined in good faith by the Manager.
8. COMPENSATION TO MANAGER
The Manager, as full compensation for services rendered under this
Agreement, shall be paid a fee as specified in Part II of Schedule A, as it may
be amended from time to time by the Manager upon thirty (30) days' written
notice to the Client. For purposes of the calculation of the fee, the value of
the securities in the Account shall be determined as of the Appraisal Date at
the end of each calendar quarter pursuant to paragraph 7 of this Agreement. If
the Manager shall serve for less than the whole of any calendar quarter, its
compensation shall be determined as provided above on the basis of the value of
the assets in the Account on the date of termination and shall be payable on a
pro rata basis for the period of the calendar quarter for which it has served as
Manager hereunder. The compensation of the Manager shall be paid by the Client
upon receipt of the Manager's statement for such compensation.
9. ASSIGNMENT
No assignment (as the term is defined in the Investment Adviser's Act of
1940) of this Agreement shall be made by the Manager without the written consent
of the Client.
10. RENEWAL AND TERMINATION
This Agreement shall be renewed automatically each year on the
anniversary of its effective date unless it is terminated. This Agreement may be
terminated either by the Client or by the Manager, by notice given to the other
party hereto, effective thirty (30) days after receipt of such notice. Such
termination shall be without the payment of any penalty and without liability of
any party to the others, except that the party required to pay compensation
under paragraph 8 shall remain liable for any accrued but unpaid compensation
due the Manager as of the date of termination. In addition, the Client may
terminate this Agreement without advance notice to the Manager if Client pays a
termination fee determined as if the Manager had continued to provide services
under this Agreement for a period of thirty (30) days after the termination
date. In such case, the termination date shall be the Appraisal Date for
purposes of computing the termination fee. Termination by either party shall not
have the effect of canceling orders to deposit or invest cash or to purchase or
sell securities or other property placed prior to the effectiveness of
termination. Termination of this Agreement for any reason shall not relieve the
Manager of liability or responsibility under this Agreement with respect to the
period prior to the effectiveness of the termination.
11. LIABILITY OF MANAGER
Client specifically acknowledges and agrees that except for loss
resulting from gross negligence, willful misfeasance, bad faith or reckless
disregard on the part of the Manager in performance of its duties hereunder,
neither Manager or any of the Manager's officers, directors, shareholders,
agents or employees shall be liable hereunder for any action taken or not taken
in providing services hereunder.
12. OTHER AGREEMENTS AND OBLIGATIONS
It is understood that the Manager may have advisory or other contracts
with other persons, firms, or organizations (some of which may have investment
policies similar to those of the Account) and may have other interests and
businesses. In these connections the Manager may acquire information of a
confidential nature. The Client agrees that the Manager shall not be required to
provide investment advice or take any other action on behalf of the Account with
respect to any particular investment if such action by the Manager would involve
a violation of law. All information and advice furnished by either party to this
Agreement shall be treated as confidential and shall not be disclosed to third
parties except as required by law.
The Manager may act as investment adviser to other clients and may give
advice, and take action, with respect to any of those clients that may differ
from the advice given, or the timing or nature of action taken, with respect to
the Account. The Manager shall have no obligation to purchase or sell for
Client, or to recommend for purchase or sale by Client, any security that the
Manager, its principals, affiliates or employees may purchase for themselves or
for any other clients.
13. NOTICES
All notices and instructions with respect to any matters contemplated by
this Agreement shall be deemed duly given when delivered in writing to the
addresses below or when deposited by first-class mail addressed as follows:
(a) To Client:
-----------------------------------------------------------
Xxxxxxx X. Xxxxxx, CFO
PXRE Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
(b) To the Custodian:
-----------------------------------------------------------
Xxxx X. Xxxxxxx
Global Investor Services
Chase Manhattan Bank
4 Chase Metro Tech Center, 18th Floor
Brooklyn, NY 11245
(c) To Manager:
-----------------------------------------------------------
Mr. Xxxx Xxxxxx, Senior Vice President
Phoenix Investment Counsel, Inc.
00 Xxxxxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxxxx, XX 00000
14. AUTHORITY TO PERFORM
Each of the parties to this Agreement hereby represents that it is duly
authorized and empowered to execute, deliver, and perform this Agreement and the
transactions contemplated hereby, that such actions do not conflict with or
violate any provision of law, regulation, or contract, deed of trust, agreement,
or other instrument to which it is a party or by which it is bound or to which
it is subject and that no consent of any person or government regulatory agency
to such party's performing its obligation under this Agreement is required which
has not been obtained, and that this Agreement is a valid and binding obligation
upon that party, enforceable in accordance with its terms.
15. GOVERNING LAW
The laws of the State of Connecticut shall control all matters relating
to this Agreement and shall apply to the extent not preempted by Federal law.
16. MISCELLANEOUS
The Client acknowledges receipt of Part II of the Manager's Form ADV as
required by Rule 204-3 under the Investment Adviser's Act of 1940, as amended,
more than forty-eight (48) hours prior to the date of execution of this
Agreement.
This Agreement is the entire agreement of the parties with respect to
management of the assets in the Account and subject to the terms of paragraph 8,
may not be amended except by a writing signed by the parties.
This Agreement shall be effective as of the day and year first above
written.
PXRE CORPORATION PHOENIX INVESTMENT COUNSEL, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
--------------------- ------------------
Title: Senior Vice President, Treasurer & CFO Title: Senior Vice President
Date: January 29, 1997 Date: 1/28/97
Attachment: Schedule A, Parts I and II
SCHEDULE A, PART I
INVESTMENT OBJECTIVES AND GUIDELINES
ATTACHMENT
PXRE STATEMENT OF INVESTMENT OBJECTIVES AND GUIDELINES
Dated: ____________________________________
SCHEDULE A, PART II
INVESTMENT MANAGER COMPENSATION
The Manager shall be paid a fee as specified below by the Client as full
compensation for services rendered under the Investment Manager Agreement
effective January 29, 1997.
Upon presentation of an invoice by the Manager, after the close of each quarter,
the Client shall pay the Manager a management fee which shall be calculated on
the value of the assets of the Account and paid at one-fourth of the following
annual fee rates:
All assets.......................................0.15%
For purposes of the calculation of the fee, the value of the securities
(including all cash and cash equivalents) in the Account shall be determined as
of the Appraisal Date at the end of each calendar quarter. If the Manager shall
serve for less than the whole of any calendar quarter, its compensation shall be
determined as provided above on the basis of the value of assets in the Account
on the date of termination and shall be payable on a pro rata basis for the
period of the calendar quarter for which it has served as Manager hereunder. In
the event funds are contributed to or withdrawn from the Account during the
calendar quarter, the amount of the management fee then due shall be prorated
proportionately.
