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EXHIBIT C
INVESTMENT MANAGEMENT AGREEMENT
THIS INVESTMENT MANAGEMENT AGREEMENT dated as of ________ 1999 between
________ (the "Client") and UNITED MANAGEMENT COMPANY, LLC, a Virginia
corporation ("UMC").
Recitals
A. WHEREAS, the Client has determined to engage the services of UMC to
manage certain of its assets.
B. WHEREAS, UMC is an investment adviser registered under the
Investment Advisers Act of 1940.
C. WHEREAS, UMC desires to manage the Client's assets subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, and upon the basis of the representations
and warranties contained herein, the parties hereto hereby agree as follows:
1. Appointment and Authority of Investment Manager.
(a) The Client hereby appoints UMC, as an investment manager of
approximately ________________________ and 00/100 Dollars ($______________ to be
deposited in Account Number ______________ at _______________.
(b) UMC, as an investment manager, shall have the power and duty to
manage, acquire and dispose of the Managed Assets with the objective of
maximizing the value thereof in a manner consistent with the investment
guidelines set forth on Exhibit A and subject to any investment restrictions, if
any, set forth on Exhibit A. In that regard, UMC shall have full discretion to
make all investment decisions concerning the timing, frequency and method of
execution of the purchase, sale, retention, exchange or conversion of the
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Managed Assets including what investments shall be bought, sold, retained or
exchanged and to direct without the consent or knowledge of the Client, the
execution of investment transactions including the timing, frequency and method
of execution thereof.
(c) Except as otherwise directed by the Client in writing, the
Client agrees to establish an account with any broker or dealer designated by
UMC to effect investment transactions in respect of the Managed Assets so long
as the use of such broker or dealer is consistent with UMC's duties under the
Investment Adviser's Act of 1940. UMC shall select such brokers or dealers in
its own discretion and shall not be responsible for any acts or omissions of any
such brokers or dealers provided UMC is not negligent in the selection of such
brokers or dealers. No commissions or fees shall be incurred which are
substantially greater than those chargeable by other brokers or dealers in the
community for like or comparable services, provided, however, the Client
authorizes UMC, consistent with the foregoing, to select brokers and dealers on
the basis of their having furnished statistical, research and other services to
UMC.
(d) Subject to the foregoing paragraph (c), UMC may utilize the
services of third party advisers and counsel as it deems prudent.
(e) Notwithstanding the discretion of UMC with respect to the
Managed Assets, UMC shall not at any time have any right to custody of any of
the Managed Assets.
(f) The Client acknowledges that UMC, from time to time, may be
acting as an investment manager for other institutional and individual clients
including affiliates of UMC and that investments and reinvestments of the
Managed Assets may differ from those made or recommended with respect to other
accounts and clients even though the investment objectives may be the same or
similar.
2. Fees and Expenses of Investment Manager.
(a) For services rendered, the Client agrees to pay UMC a
management fee of _____________ of one percent (____________%) per annum of the
net asset value
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of the Managed Assets or such other fee as the Client and UMC shall agree to in
writing from time to time. Net asset value shall be calculated based on the
closing market value of the Managed Assets (net of commissions) as of the last
business day of each month. All management fees due shall be paid to UMC within
thirty (30) days of the end of each calendar quarter. In the event this
Agreement is terminated prior to the end of any calendar quarter, the management
fee shall be prorated to take into account partial months.
(b) In computing the market value of any investment of the Managed
Assets for the purpose of this Agreement, each security listed on any national
securities exchange shall be valued at the last sale price on the valuation
date. Any unlisted stock regularly traded in the over-the-counter market, shall
be valued at the latest available bid price quotation.
(c) For purposes of determining UMC's management fee, there shall
be added to the value of the Managed Assets (i) interest accrued but not
collected on any interest bearing obligation and (ii) dividends declared but not
collected on stock which, if sold, would be sold ex-dividend.
(d) Except as otherwise expressly provided in this Agreement, UMC
shall be responsible for all of its costs and expenses in connection with its
performance of investment management services pursuant to this Agreement.
(e) UMC shall not be responsible for, and the Client shall cause to
be paid on its own behalf interest charges, taxes, fees and commissions of every
kind, and expenses pertaining to transactions involving the Managed Assets not
directly related to the performance by UMC of investment management services.
3. Representations and Warranties.
(a) UMC represents and warrants to the Client that:
(i) UMC is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Virginia, and has all
necessary power and authority to execute, deliver and perform its obligations
under this Agreement.
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(ii) UMC is a registered investment adviser under the
Investment Advisers Act of 1940 (the "Advisers Act").
(iii) This Agreement has been duly authorized, executed and
delivered by UMC and constitutes the valid and binding obligation of UMC.
(iv) Neither the execution and delivery of this Agreement by
UMC nor the performance of its obligations hereunder, will violate any provision
of law applicable to or affecting UMC, or conflict with, or constitute a default
under, any of the terms of its Articles of Incorporation or Bylaws or any
provision of any agreement or instrument to which it is a party or by which it
may be bound.
(v) UMC has furnished the Client with a written disclosure
statement as contemplated by Rule 204-3 promulgated under the Advisers Act.
(b) The Client represents and warrants to UMC that:
(i) This Agreement has been duly executed and delivered by the
Client and constitutes the valid and binding obligation of the Client.
(ii) Neither the execution and delivery of this Agreement by
the Client, nor the performance of its obligations hereunder, will violate any
provision of law applicable to or affecting the Client or conflict with, or
constitute a default under, any provision of any agreement or instrument to
which the Client is a party or by which the Client may be bound.
4. Covenants.
(a) UMC shall furnish to the Client, on a quarterly basis, written
reports relating to the transactions effected in connection with the Managed
Assets and the results of its investment decisions. It is understood, however,
that UMC in the maintenance of its records does not assume any responsibility
for the accuracy of information furnished by the Client.
(b) UMC shall not be liable for any mistake of judgement as a
result of its investment decisions or any loss or diminution of the Managed
Assets, except due to its
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own negligence, bad faith, fraud or willful misconduct. The federal securities
laws impose liabilities under certain circumstances on persons who act in good
faith, and therefore nothing herein shall in any way constitute a waiver or
limitation of any rights which the undersigned may have under any federal
securities laws.
(c) UMC shall not assign this Agreement without the express written
consent of the Client.
5. Termination of Agreement.
The Client and UMC shall each have the right, upon 30 days prior
written notice to the other, to terminate this Agreement.
6. Miscellaneous provisions.
(a) Nothing contained in this Agreement is intended to create third
party beneficiaries of or under this Agreement. Without limiting the generality
of the foregoing, no person other than the Client or UMC shall have any rights
or claims against the Client, UMC or any other person based upon or otherwise in
respect of this Agreement.
(b) This Agreement sets forth the entire understanding of the
parties hereto and supersedes all prior agreements, letters of intent,
covenants, arrangements, communications, representations and warranties, whether
oral or written, by either party.
(c) This Agreement may be amended only by a writing signed by each
of the parties hereto.
(d) The captions set forth in this Agreement are for convenience of
reference only and shall not be considered as part of this Agreement or as in
any way limiting or amplifying the terms and provisions hereof. In the event
that any provision of this Agreement is finally determined to be unlawful, such
provision shall be deemed to be severed from this Agreement, but every other
provision of this Agreement shall remain in full force and effect.
(e) Any notice or communication given pursuant hereto by either of
the parties shall be in writing and delivered by registered or certified mail,
postage prepaid, as
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follows:
If to the Client, to:
If to UMC, to:
Xxx. Xxxx X. Xxxxxx
President and Managing Director
United Management Company, LLC
P. 0. Box 0000
Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
(f) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Virginia, except to the extent that they
are preempted by the laws of the United States.
(g) This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which shall constitute one
agreement.
IN WITNESS WHEREOF, the parties have executed this Investment
Management Agreement as of the date first above written.
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UNITED MANAGEMENT COMPANY, LLC
XXXX X. XXXXXX
PRESIDENT AND MANAGING DIRECTOR
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EXHIBIT A
Statement of Investment Guidelines and Objectives:
The primary objective is long term capital appreciation.
Investment Restrictions:
Set forth restrictions, if any, on types of investments UMC may make. If none,
state none.
None.
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