Exhibit 99.5
FORM OF INVESTMENT MANAGEMENT AGREEMENT
---------------------------------------
THIS AGREEMENT made this _____ day of April 0000, xxxxxxx XXXXX
XXXXXXX FUND, INC., a Maryland corporation with offices at One Granite Place,
Concord, New Hampshire (the "Fund), and CHUBB INVESTMENT ADVISORY CORPORATION, a
Tennessee corporation with offices at One Granite Place, Concord, New Hampshire
("Chubb Investment");
WITNESSETH
WHEREAS, the Fund is engaged in business as a diversified open-end
management investment company and is registered as such under the Investment
Company of 1940 (the "Investment Company Act");
WHEREAS, the Fund is authorized to issue shares of common stock, $.01 par
value, ("Stock") in separate classes or series with each such class or series
representing an interest in a separate portfolio of securities and other assets,
and each with its own investment objectives, investment policies and
restrictions (individually, a "Portfolio", collectively, the "Portfolios");
WHEREAS, Chubb Investment is engaged in the business of rendering
investment advisory services and its registered as an investment adviser under
the Investment Advisers Act of 1940;
WHEREAS, the Board of Directors of the Fund desires to retain Chubb
Investment to render investment management and corporate administrative services
to the Fund's Portfolios set forth in Schedule A hereto, as such may be revised
from time to time, in the manner and on the terms set forth herein; and
WHEREAS, the Board of Directors of the Fund believes that Chubb
Investment's expertise and business contacts are and will be of material benefit
to the Fund in employing and supervising any investment subadviser
("Subadviser"), as further described below;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Fund and Chubb Investment hereby agree as follows:
1. Appointment of Manager. The Fund hereby appoints Chubb Investment as
the investment manager ("Manager) for each of the Portfolios of the Fund
specified in Appendix A to this Agreement, as such Appendix A may be amended by
the Manager and the Fund from time to time, subject to the supervision of the
Directors of the Fund and in the manner under the terms and conditions set forth
in this Agreement.
2(a) Duties of Chubb Investment. Chubb Investment hereby agrees, subject
to the supervision of the Board of Directors of the Fund (i) to act as the
investment manager of the Portfolios, and, in that connection, (ii) to select
and contract, at its own expense, with investment subadvisers ("Subadvisers") to
manage the investment operations and
PAGE 1
composition of each and every Portfolio of the Fund, including the purchase,
retention, and disposition of the investments, securities and cash contained in
each Portfolio.
In taking any action hereunder, Chubb Investment shall always be subject to, and
shall follow at all times (i) any restrictions of the Fund's Articles of
Incorporation and By-Laws, as amended from time to time, (ii)the applicable
provisions of the Investment Company Act, and any rules and regulations adopted
thereunder, (iii) the statements relating to the Portfolios' investment
objectives, policies and restrictions as the same are set forth in the
prospectus of the Fund and Statement of Additional Information then currently
effective under the Securities Act of 1933 (the "Prospectus"), and (iv) any
other provisions of state and federal law applicable to it in connection with
its duties hereunder, including any applicable provisions imposed by state
insurance regulations and under the Internal Revenue Code of 1986, as amended,
and regulations thereunder (the "Code").
(b) Interim Arrangements. Notwithstanding the provisions of subsection
(a) of this paragraph, the Manager may, in the event of a Subadviser becomes
unable to provide portfolio management services to a Portfolio, itself provide
to the Portfolio those services normally provided by the Subadviser under the
Subadviser's agreement with the Manager, until such time as the Manager selects
and contracts with a replacement Subadviser.
(c) Administrative Services. Subject to the direction and control of the
Board of Directors of the Fund, Chubb Investment shall perform administrative
services in connection with the management of the Portfolios and will supervise
all aspects of the Portfolios' operations. In this connection, Chubb Investment
agrees to perform the following administrative functions:
(1) Determine the value of each Portfolio's assets and liabilities,
compute the daily income and net asset value of each Portfolio and compute the
yield and/or total return of each Portfolio as may be required, in accordance
with applicable law;
(2) Schedule, plan agendas for and conduct directors and shareholders
meetings;
(3) Recommend auditors, counsel, Custodian and others;
(4) Coordinate, supervise and direct any Subadviser, the Fund's
Custodian and the Fund's Distributor, auditors and counsel on a day-to-day
basis;
(5) Prepare and distribute all required proxy statements, reports,
and other communications with shareholders;
(6) Prepare and file tax returns, reports due and other required
filings with the Securities and Exchange Commission ("SEC"), the National
Association of Securities Dealers, Inc., state blue sky authorities, and
generally monitor compliance with all federal and state securities laws and the
Code;
(7) Supply clerical, secretarial, accounting and bookkeeping
services, data processing services, office supplies and stationery;
(8) Provide persons to perform such professional, administrative and
clerical functions as are necessary in connection with shareholder relations,
reports,
PAGE 2
redemption requests and account adjustments, including the receipt, handling and
coordination of shareholder complaints;
(9) Provide adequate office space and related services (including
telephone and other utility service) necessary for the Fund's operations;
(10) Maintain corporate records not otherwise maintained by the Fund's
Custodian, Distributor, or any Subadviser; and
(11) Assist, generally, in all aspects of the Fund's operations with
respect to the Portfolios.
The Manger may enter into arrangements with its parent or other persons
affiliated or unaffiliated with the Manager for the provisions of certain
personnel and facilities to the Manager to enable the Manager to fulfill its
duties and obligations under this Agreement. Nothing herein will be construed
to restrict the Fund's right, at its own expense, to contract for services to be
performed by third parties.
(d) Arrangements with Subadvisers. Notwithstanding any other provision
hereof, Chubb Investment, with the approval of the Board of Directors of the
Fund, may contract with one or more Subadvisers to perform any of the investment
management services required by the Fund, and may contract with one or more
Subadvisers or other parties to perform any of the administrative services
required of Chubb Investment hereunder; provided, however, that the compensation
of such other parties will be the sole responsibility of Chubb Investment and
the duties and responsibilities of such other Subadviser or other parties shall
be as set forth in an agreement or agreements between Chubb Investment and such
other parties.
Chubb Investment shall exercise reasonable care in recommending,
monitoring, and supervising the performance of Subadviser and others serving
pursuant to the foregoing paragraph, but Chubb Investment shall not otherwise be
liable or legally responsible for the conduct of any Subadviser. In this
connection, it shall be a particular responsibility of Chubb Investment to
evaluate the investment performance of Subadviser and that of potential
Subadviser, and Chubb Investment shall supply the Board of Directors of the Fund
with such statistical and research data bearing on each Portfolio's performance
and that of Subadviser and potential Subadviser as they and Chubb Investment
deem necessary. It shall also be a particular responsibility of Chubb
Investment to supervise and monitor the practices of Subadviser in placing
orders and selecting brokers and dealers to effect Portfolio transactions and in
negotiating commission rates with them, and the services provided by such
brokers and dealers.
It also is understood that Chubb Investment, at its expense, will enter
into an agreement with Chubb America Service Corporation, a New Hampshire
corporation, pursuant to which Chubb Investment will obtain from said
corporation most staff, facilities and services necessary to meet its
obligations hereunder. Entering into said agreement shall in no way diminish
any obligation or liability of Chubb Investment hereunder.
3.(a) Purchase and Sale of Assets. Nothing in this Investment Management
Agreement shall preclude the combining of orders for the sale or purchase of
securities or other investments with other accounts managed by Chubb Investment,
provided that Chubb Investment does not favor any account over any other account
and provided further that any purchase or sale orders executed contemporaneously
shall be allocated in a manner that Chubb Investment deems to be equitable to
all accounts involved and, under
PAGE 3
normal circumstances, such transactions will be (1) done on a pro rata basis
substantially in proportion to the amounts ordered by each account, (2) entered
into only if, in Chubb Investment's opinion, the trade is likely to produce a
benefit for the Portfolio, and (3) is at a price which is approximately the same
for all parties involved. Neither Chubb Investment, nor any of its directors,
officers, or employees, nor any person, firm, or corporation controlling,
controlled by or under common control with it shall act as a principal or
receive any commission as agent in connection with the purchase or sale of
assets for the Portfolios.
(b) Brokerage Fees. In placing orders for the purchase or sale of
investments for the Portfolios, in the name of the Portfolio or their nominees,
Chubb Investment shall use its best efforts to obtain for the Portfolios the
most favorable price and best execution available, considering all of the
circumstances, and shall maintain records adequate to demonstrate compliance
with this requirement. Notwithstanding the foregoing, however, and subject to
appropriate policies and procedures as then approved by the Board of Directors
of the Fund, Chubb Investment may, to the extent authorized by Section 28(e) of
the Securities Exchange Act of 1934, cause the Fund to pay a broker or dealer
that provides research or other brokerage services to Chubb Investment and the
Fund with respect to the Portfolio an amount of commission for effecting a
portfolio transaction in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if Chubb Investment
determines in good faith that such amount of commission is reasonable in
relationship to the value of such services, viewed in terms of that particular
transaction or Chubb Investment's overall responsibilities to the Portfolios or
its other advisory clients. To the extent authorized by said Section 28(e) and
the Fund's Board of Directors, Chubb Investment shall not be deemed to have
acted unlawfully or to have breached any duty created by this Investment
Management Agreement or otherwise solely by reason of such action.
4. Compensation of Chubb Investment. Except as hereinafter provided, for
the services rendered and expenses assumed by Chubb Investment, while this
Investment Management Agreement is in effect, the Fund shall pay to Chubb
Investment fees at an annual rate set forth in Schedule A attached hereto. Fees
will accrue daily and will be payable as agreed by the Fund and Chubb
Investment, but not more frequently than monthly.. The average asset value of
the Portfolios shall be determined and computed in accordance with the
description of the method of determining net asset value contained in the
Prospectus.
The fees payable to Chubb Investment by the Fund hereunder shall be reduced
by any tender solicitation fees or similar payments received by Chubb
Investment, or any affiliated person of Chubb Investment, in connection with the
tender of investments of any Portfolio (less any direct expenses incurred by
Chubb Investment, or any affiliated person of Chubb Investment, in connection
with obtaining such fees or payments). Chubb Investment shall use its best
efforts to recapture all available tender offer solicitation fees and similar
payments in connection with tenders of the securities of any Portfolio,
provided, however, that Chubb Investment shall not be required to register as a
broker-dealer for this purpose. Chubb Investment shall advise the Board of
Directors of any fees or payments of whatever type which it may be possible for
Chubb Investment to receive in connection with the purchase or sale of
investment securities for any Portfolio.
5. Non-Exclusivity. The Fund agrees that the services of Chubb Investment
are not to be deemed exclusive and Chubb Investment is free to act as investment
manager to various investment companies and as fiduciary for other managed
accounts. Chubb Investment shall, for all purposes herein, be deemed to be an
independent contractor and
PAGE 4
shall, unless otherwise provided or authorized, have no authority to act for or
represent the Fund with respect to the Portfolios in any way or otherwise be
deemed an agent of the Fund with respect to the Portfolios other than in
furtherance of its duties and responsibilities as set forth in this Investment
Management Agreement. It is understood and agreed that the directors, officers
and employees of Chubb Investment are not prohibited from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, officers, directors, trustees, or employees of any other
firm or corporation, including other investment companies.
6. Books and Records. Chubb Investment will maintain all books and
records required for the Fund with respect to the Portfolios, to the extent not
maintained by the Custodian or any Subadviser. Chubb Investment agrees that all
books and records which it maintains for the Fund are the Fund's property, and,
in the event of termination of this Investment Management Agreement for any
reason, Chubb Investment agrees promptly to return to the Fund, free from any
claim or retention of rights by Chubb Investment, all records relating to the
Fund. Chubb Investment also agrees, upon request of the Fund, promptly to
surrender such books and records to the Fund or, at the Fund's expense, to make
copies thereof available to the Fund or to make such books and records available
for inspection by representatives of regulatory authorities or other persons
reasonably designated by the Fund. Chubb Investment further agrees to maintain,
prepare and preserve such books and records in accordance with the Investment
Company Act and rules thereunder, including but not limited to, Rules 31a-1 and
31a-2.
Chubb Investment will use records or information obtained under this
Investment Management Agreement only for the purposes contemplated hereby, and
will not disclose such records or information in any manner other than as
expressly authorized by the Board of Directors or officers of the Fund, or
unless disclosure is expressly required by applicable federal or state
regulatory authorities or by this Investment Management Agreement. Chubb
Investment shall supply all information requested by any insurance regulatory
authorities to determine whether all insurance laws and regulations are being
complied with.
The records maintained for the Fund hereunder by Chubb Investment shall
include records showing, for each shareholder's account, the following: (a)
name, address and tax identifying number; (b) number and class of shares held;
(c) historical information regarding the account of each shareholder, including
dividends paid and the date, class of Stock and price for all transactions; (d)
any stop or restraining order placed against the account; (e) any dividend
reinvestment order, dividend address and correspondence relating to the current
maintenance of the account; (f) certificate numbers and denominations for any
Stock certificates; (g) any other information required in order for Chubb
Investment to perform the calculations contemplated or required by this
Investment Management Agreement; and (h) such other records as the Fund may from
time to time reasonably request.
7. Liability. Chubb Investment will not be liable for any loss suffered
by the Portfolios in connection with any investment policy established by the
Fund for the purchase, sale or redemption of any securities at the direction of
the Board of Directors of the Fund. Nothing herein contained shall be construed
to protect Chubb Investment against any liability resulting from the willful
misfeasance, bad faith or negligence of Chubb Investment in the performance of
its duties or from reckless disregard of its obligations and duties under this
Investment Management Agreement or by virtue of violation of any applicable law.
PAGE 5
8. (a) Initial Documents. The Fund's management shall file with Chubb
Investment the following documents: (i) certified copies of the Articles of
Incorporation of the Fund and all amendments thereto, made from time to time;
(ii) a certified copy of the By-Laws of the Fund as amended, from time to time;
(iii) a copy of the resolution of the Board of Directors of the Fund authorizing
this Investment Management Agreement; (iv) specimens of all forms of outstanding
and new stock certificates, if any, with respect to Portfolio Stock in the form
approved by the Board of Directors of the Fund accompanied by Board of
Directors' resolutions approving such forms, and with a certificate of the
Secretary of the Fund as to such approval; (v) an opinion of counsel for the
Fund with respect to the validity of the Portfolio Stock, the number of shares
authorized, the number of Shares allocated to the Portfolio's class of Shares,
the status of redeemed or repurchased Shares and the number of Shares with
respect to which a registration statement under the Securities Act of 1933 has
been filed and is in effect; and (vi) a listing of the insurance companies with
which Chubb Life through its general account or Separate Account A or any
additional separate accounts established by Chubb Life, its successors or
assigns, is affiliated
(b) Further Documentation. The Fund's management will also furnish to
Chubb Investment from time to time the following documents: (i) each resolution
of the Board of Directors of the Fund authorizing the original issue of the
Portfolio's Shares; (ii) each registration statement filed with the SEC under
the Securities Act of 1933 or under the Investment Company Act and amendments
thereof, orders relating thereto and the Prospectus in effect with respect to
the sale of shares of the Fund; (iii) certified copies of each resolution of the
Board of Directors authorizing officers to give instructions to Chubb
Investment.
(c) Information. The Fund, its officers or agent will provide timely
information to Chubb Investment regarding such matters as purchases and
redemptions of shares in the Portfolios, cash requirements, and cash available
for investment in the Portfolios, and all other information as may be reasonably
necessary, or appropriate, in order for Chubb Investment to perform its
responsibilities hereunder.
(d) Reliance on Documents and Information. Chubb Investment will be
entitled to rely on all documentation and information furnished to it by the
Fund's management.
9. Authorized Shares. The Fund certifies to Chubb Investment, that as of
the close of business on the date of this Investment Management Agreement, it
has authorized one billion shares of its Stock, and further certifies that, by
virtue of its Articles of Incorporation and the provisions of the law of the
state of its incorporation, shares of its Stock which are redeemed or
repurchased by the Fund from its shareholder are restored to the status of
authorized and unissued shares.
10. (a) Expenses of the Fund. As between the Fund and Chubb Investment,
the following expenses shall be borne exclusively by the Fund;
(i) Brokerage commissions and transfer taxes in connection with
portfolio transactions and similar fees and charges for the acquisition,
disposition, lending or borrowing of portfolio investments;
(ii) All other state, federal, local or foreign governmental fees
and taxes (including any insurance, transfer, franchise or income taxes) payable
by the Fund and all corporate or filing fees payable by the Fund to any
governmental entity or agency;
PAGE 6
iii) All expenses, incidental and otherwise, associated with
preparing and filing with appropriate state, federal, local or foreign
governments or agencies all tax returns, including the expenses associated with
any mailings to the policy owners with respect to such returns.
(iv) Fees and expenses incurred in the registration or qualification
(and maintaining said registration or qualification) of the Fund and its shares
under federal or state securities laws, if deemed applicable, subsequent to the
effective date of the registration statement including all fees and expenses
incurred in connection with the preparation, setting in type, printing and
mailing of the registration statement and any amendments or supplements that may
be made from time to time;
(v) Compensation paid to directors who are not "interested persons"
of the Fund within the meaning of the Investment Company Act and travel expenses
paid to all directors;
(vi) Interest and any other cost related to borrowings by the Fund;
(vii) Any extraordinary or non-recurring expenses (such as legal
claims and liabilities, and litigation costs and any indemnification related
thereto);
(viii) Costs of printing and distributing to current policy owners,
shareholder reports, proxy statements, Prospectuses and any stickers and
supplements thereto, and otherwise communicating with the shareholders;
(ix) Costs and all incidental expenses associated with conducting
shareholder meetings;
(x) The cost of the fidelity bond required by Investment Company
Act Rule 17g-1 and any errors and omissions insurance or other liability
insurance covering the Fund and/or its officers, directors and employees;
(xi) The cost of obtaining quotes necessary for valuing the assets
and related liabilities for the Portfolios;
(xii) The charges and expenses of the Custodian, independent
accountants and independent legal counsel retained by the Fund, the charges and
expenses of any independent proxy solicitation firm retained by the Fund to
solicit voting instructions from policy owners with respect to Portfolio Shares,
and the charges and expenses of any trade association fees; and
(xiv) All other expenses not specifically assumed hereunder by Chubb
Investment.
(b) Expenses of Chubb Investment. As between the Fund and Chubb
Investment, the costs and expenses of providing the necessary facilities,
personnel, office equipment and supplies, office space, telephone service, and
other utility service necessary to carry out its obligations hereunder shall be
borne exclusively by Chubb Investment, except as otherwise herein expressly
provided. In addition, Chubb Investment shall pay and assume all expenses
specifically assumed by Chubb Investment as set forth in Paragraphs 1(b)(1),
(3), (4), (7), (8), (9), (10) and (11); and 1(c), (d), (e), (f) and (g) of this
Investment Management Agreement.
PAGE 7
11. Duration and Termination of the Agreement. This Investment Management
Agreement shall become effective as of the date first written above provided
that it has been approved by the majority of the outstanding shares of each of
the Portfolios. Thereafter, it shall continue in effect with respect to each of
the Portfolios from year to year, but only so long as such continuance is
specifically approved at least annually by the Board of Directors in conformity
with the requirements of the Investment Company Act. This Investment Management
Agreement may be terminated, with respect to each Portfolio, without the
payment of any penalty, by the Board of Directors of the Fund or by vote of a
majority of the outstanding shares of Portfolio on sixty days' written notice
to Chubb Investment, or by Chubb Investment on sixty days' written notice to the
Fund. This Investment Management Agreement shall automatically terminate in the
event of its assignment.
12. Amendment of the Agreement. This Investment Management Agreement may
be amended with respect to any Portfolio only if, to the extent required by law,
such amendment is specifically approved by (a) the vote of a majority of the
outstanding shares of the Portfolio, and (b) by the vote of the Board of
Directors of the Fund, including a majority of those directors of the Fund who
are not parties to nor interested persons of any party to this Investment
Management Agreement cast in person at a meeting called for the purpose of
voting on such approval.
13. Definitions. The terms "assignment," "interested person," and
"majority of the outstanding shares," when used in this Investment Management
Agreement, shall have the respective meanings specified under the Investment
Company Act and rules thereunder.
14. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
15. Name. This Investment Management Agreement is entered into in
recognition of an agreement, dated February 15, 1985, between the Fund and The
Chubb Corporation granting the Fund a license to use the word "Chubb" in its
corporate name and to use such words in connection with its business.
16. Provisions of Certain Information by Manager. The Manager will
promptly notify the Fund in writing of the occurrence of any of the following
events:
a. The Manager fails to be registered as a investment adviser under the
Advisers Act or under the laws of any jurisdiction in which the Manager is
required to be registered as an investment adviser in order to perform its
obligations under this Agreement,
b. the Manager is served or otherwise receives notice of any action,
suit, proceeding, inquiry or investigation, at law or in the equity, before or
by any court, public board or body, involving the affairs of the Fund, and/or
c. the chief executive officer or controlling stockholder of the Manager
or the portfolio manager of any Portfolio changes or there is otherwise an
actual change in control or management of the Manager.
PAGE 8
17. Entire Agreement. This Agreement contains the entire understanding
and agreement of the Parties.
18. Headings. The headings in the sections of this Agreement are inserted
for convenience of reference only and shall not constitute a part hereof.
19. Notices. All notices required to be given pursuant to this Agreement
shall be delivered or mailed to the last known business address of the Fund or
Manager in person or by registered mail or a private mail or delivery service
providing the sender with notice of receipt. Notice shall be deemed given on
the date delivered or mailed in accordance with this section.
20. Force Majeure. The Manager shall not be liable for delays or errors
occurring by reason of circumstances beyond its control, including, but not
limited to, acts of civil or military authority, national emergencies, work
stoppages, fire, flood catastrophe, acts of nature, insurrection, war, riot,
failure of communication or power supply. In the event of equipment breakdowns
beyond its control, the Manager shall take reasonable steps to minimize service
interruptions but shall have no liability with respect to such undertakings.
21. Severability. Should any portion of this Agreement for any reason be
held to be void in law or in equity, the Agreement shall be construed, insofar
as is possible, as if such portion had never been contained in the Agreement.
22. Governing Law. The provisions of this Investment Management Agreement
shall be construed and interpreted in accordance with the laws of the State of
New Hampshire, as at the time in effect, and the applicable provisions of the
Investment Company Act and rules thereunder or other federal laws and
regulations which may be applicable. To the extent that the applicable law of
the State of New Hampshire, or any of the provisions herein, conflict with the
applicable provisions of the Investment Company Act and rules thereunder or
other federal laws and regulations which may be applicable the latter shall
control.
CHUBB AMERICA FUND, INC.
Attest: By:
Title: Tile:
CHUBB INVESTMENT ADVISORY
CORPORATION
Attest: By:
Title: Title:
PAGE 9
SCHEDULE A
CHUBB AMERICA FUND, INC.
-------------------------------------------------------------------------------
NAME OF PORTFOLIO ANNUAL FEE AS A PERCENTAGE OF
AVERAGE DAILY NET ASSETS
--------------------------------------------------------------------------------
World Growth Stock .75% of first $200 Million
Portfolio .70% of next $1.1 Billion
.65% over $1.3 Billion
--------------------------------------------------------------------------------
Money Market Portfolio .50% of first $200 Million
.45% of next $1.1 Billion
.40% over $1.3 Billion
--------------------------------------------------------------------------------
Gold Stock Portfolio .75% of first $200 Million
.70% of next $1.1 Billion
.65% over $1.3 Billion
--------------------------------------------------------------------------------
Bond Portfolio .50% of first $200 Million
.45% of next $1.1 Billion
.40% over $1.3 Billion
--------------------------------------------------------------------------------
Domestic Growth Stock .75% of first $200 Million
Portfolio .70% of next $1.1 Billion
.65% over $1.3 Billion
--------------------------------------------------------------------------------
Growth and Income Portfolio .75% of first $200 Million
.70% of next $1.1 Billion
.65% over $1.3 Billion
--------------------------------------------------------------------------------
Capital Growth Portfolio 1.00% of first $200 Million
.95% of next $1.1 Billion
.90% over $1.3 Billion
--------------------------------------------------------------------------------
Balanced Portfolio .75 of first $200 Million
.70% of next $1.1 Billion
.65% over $1.3 Billion
--------------------------------------------------------------------------------
Emerging Growth Portfolio .80 of first $200 Million
.75% of next $1.1 Billion
.70% over $1.3 Billion
--------------------------------------------------------------------------------
EFFECTIVE:__________________________________
