EXHIBIT 10.19
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INVESTMENT ADVISOR AGREEMENT
This INVESTMENT ADVISOR AGREEMENT (the "Agreement") is effective as of
May 8, 2002 by and between STATE STREET BANK AND TRUST COMPANY, a trust company
organized under the laws of the Commonwealth of Massachusetts ("State Street"),
and XXXXXX INVESTMENT PARTNERS (the "Advisor").
WHEREAS the American Bar Association Members Retirement Trust and the
American Bar Association Members Pooled Trust for Retirement Plans (collectively
referred to as the "Trusts"), for which State Street acts as trustee, are
maintained pursuant to agreements between the American Bar Retirement
Association ("ABRA") and State Street for the purpose of funding the American
Bar Association Members Retirement Plan, the American Bar Association Members
Defined Benefit Pension Plan (together, the "ABA Members Plans") and other
employee benefit plans, as adopted by eligible individuals, organizations,
partnerships, corporations or associations (each such individual employee
benefit plan being referred to as a "Plan" and collectively as the "Plans"),
which Plans must meet the requirements for qualification under Section 401 of
the Internal Revenue Code of 1986, as amended and in effect from time to time
(the "Code");
WHEREAS, certain assets of the Trusts are deposited in a collective
investment fund, known as the MID-CAP GROWTH EQUITY FUND (the "Fund"),
established under the American Bar Association Members/State Street Collective
Trust (the "ABA Members Collective Trust") established by State Street, as
trustee (the "Trustee"), pursuant to the Declaration of Trust dated December 5,
1991, as amended and in effect from time to time (the "Declaration of Trust");
WHEREAS, the Fund is established under a group trust maintained by the
Trustee and is exempt from tax pursuant to Revenue Ruling 81-100;
WHEREAS, the Trustee desires to retain the Advisor to act as its
investment advisor to assist the Trustee in managing such assets of the Fund as
the Trustee may designate from time to time in writing to the Advisor (the
"Subaccount") by making recommendations to the Trustee with respect to the
investment and reinvestment of the assets in the Subaccount; and
WHEREAS the parties desire to set forth, among other things, the
duties, terms and conditions under which the Advisor will carry out such
advisory functions and the Trustee will perform certain of its functions with
respect to managing and administering the Subaccount and the Fund;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained in this Agreement, it is agreed as follows:
1. APPOINTMENT OF THE ADVISOR. The Advisor is hereby appointed
and employed as investment advisor to the Trustee to assist the Trustee in its
management of such assets of the Fund as are held in the Subaccount from time to
time. The Advisor shall provide investment advice and recommendations and shall
render certain other related services to or on behalf of the Trustee, all in
accordance with the terms and conditions of this Agreement.
2. ACCEPTANCE BY THE ADVISOR. The Advisor hereby accepts such
appointment and employment and acknowledges that, (a) with respect to the assets
in the Subaccount, it is a fiduciary, as defined in the Employee Retirement
Income Security Act of 1974, as amended and in effect from time to time
("ERISA"), with respect to the Trusts and the Plans and (b) no person associated
with the Advisor is a trustee or administrator of, or an employer of anyone
covered by, any Plan. The Advisor represents that it is registered, or exempt
from registration, under the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and that it is in the business of acting as a fiduciary with
respect to assets of various retirement plans and trusts. The Advisor agrees and
covenants that it will notify the Trustee within ten (10) business days of (v)
any change of its status under the Advisers Act, (w) the receipt of formal
notice of the commencement of any proceeding by any governmental agency to take
any action which would change its status under the Advisers Act, (x) notice by
any governmental agency of the intent to place material limitations on the
activities of the Advisor, (y) notice by any governmental agency that it intends
to begin an investigation of the Advisor that is outside of the scope of routine
investigations that such agency conducts from time to time of businesses engaged
in the same or similar activities as the Advisor, or (z) notice by any
governmental agency that it has identified an area of non-compliance or other
concern in the course of any investigation of the Advisor. Throughout this
Agreement, the term "business day" shall mean any day in which the New York
Stock Exchange is open for trading and on which the Trustee's principal office
is open for business.
3. DEFINITION OF SUBACCOUNT. The Subaccount for which the Advisor
has been appointed to render investment advice and certain other services is
designated as Subaccount A and consists of the assets set forth in Appendix A.
The Trustee may change the composition of or the amount of assets included
within the Subaccount, by amending Appendix A, after written notice to the
Advisor and ABRA.
4. THE ADVISOR'S SERVICES.
(a) INVESTMENT PROCESS. The Advisor shall make timely
recommendations to the Trustee as to how the Trustee should invest and reinvest
the assets of the Subaccount and, in that connection, may recommend that the
Trustee purchase, sell or otherwise invest the assets of the Subaccount on the
terms and conditions recommended by the Advisor in a manner consistent with the
provisions of this Agreement. The manner and procedures for effecting any such
purchases, sales or
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investments are set forth in Subsection 4(c) below. From time to time at the
request of the Trustee, the Advisor shall consult with the Trustee on a timely
basis with respect to any recommendation made by the Advisor or otherwise with
respect to the investment of the assets of the Subaccount.
(b) COMPLIANCE WITH POLICIES AND OTHER REQUIREMENTS. In
providing its investment advice and other related services, the Advisor shall
act in accordance with the investment objectives and policies for the Fund as
set forth in the Fund Declaration pursuant to which the Fund is established and
maintained, as the same may be amended from time to time by the Trustee (the
"Fund Declaration"), a copy of which is attached hereto as Appendix B, and in
accordance with any additional investment objectives and policies that have been
established by the Trustee for the Subaccount as set forth in Appendix C, as the
same may be amended from time to time by the Trustee. In providing its
investment advice and other related services under this Agreement, the Advisor
shall comply with all of the Trustee's reasonable operating requirements as the
same may be communicated in writing by the Trustee to the Advisor from time to
time. The Advisor shall comply with any changes to such operating requirements
that the Trustee may make from time to time within a period of time reasonably
specified by the Trustee (or if none is specified, within a reasonable time
period) after notice of such changes is communicated in writing by the Trustee
to the Advisor.
(c) RECOMMENDATION PROCEDURES. The Advisor shall place
orders or otherwise give instructions with respect to the investment of the
assets in the Subaccount only after prior notification to and approval by the
Trustee in accordance with the provisions of this Subsection 4(c). Except in
accordance with the following provisions, the Advisor shall have no authority to
place orders for the execution of transactions involving assets of the
Subaccount or to give instructions to the Trustee with respect thereto:
(i) BROKER LIST. On or prior to the first
business day of each month, the Trustee shall consider brokers
recommended by the Advisor and shall approve, to the extent deemed
appropriate by the Trustee, a list of not more than one hundred (100)
brokers through whom transactions with respect to the assets in the
Subaccount may be effected during the following month (the "Broker
List"). From time to time by means of Valid Notice (as defined below),
the Advisor may request an amendment (the "Advisor's Amendment") to the
Broker List. The Trustee shall exercise reasonable efforts to notify
the Advisor whether or not the Trustee authorizes the Advisor's
Amendment to the Broker List by means of Valid Notice within one (1)
complete business day (i.e., not later than the same time of day on the
next business day) following its receipt of the Advisor's Amendment and
if the Trustee does not so notify the Advisor, then the Advisor's
Amendment shall be deemed to be approved at the conclusion of such one
business day period. The Trustee may effect an amendment to the Broker
List at any time upon Valid Notice to the Advisor.
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(ii) REAL-TIME RECOMMENDATIONS. From time to time
by means of Valid Notice (as defined below), the Advisor may make
recommendations as to proposed transactions with respect to the assets
of the Subaccount (the "Advisor's Recommendation"). The Advisor's
Recommendation shall (A) be directed to the employee or employees of
the Trustee designated for such purpose by the Trustee from time to
time by Valid Notice and (B) describe the transaction being recommended
by the Advisor in such detail and specificity as the Trustee may
reasonably require. For this purpose, if the transaction is to be
effected at the market price on the applicable exchange or trading
system, a statement to such effect shall be sufficient to describe the
proposed sale or purchase price. The Trustee shall exercise reasonable
efforts to notify the Advisor by means of Valid Notice whether or not
the Trustee authorizes the transaction recommended in the Advisor's
Recommendation (the "Trustee's Response"). The Trustee shall exercise
reasonable efforts to deliver the Trustee's Response within one (1)
hour following its receipt of the Advisor's Recommendation and if the
Trustee does not deliver the Trustee's Response to the Advisor within
such one-hour period, then the transaction or transactions recommended
in the Advisor's Recommendation shall be deemed to be approved;
PROVIDED, HOWEVER, that if the Advisor's Recommendation is received by
the Trustee after 5:00 p.m. Eastern time on any business day, then the
one-hour period described in this Subsection 4(c)(ii) shall be extended
so that it expires at 9:00 a.m. Eastern time on the next succeeding
business day.
(iii) AUTHORIZED TRANSACTIONS. A transaction shall
become an "Authorized Transaction" when it is (A) approved pursuant to
the Trustee's Response or (B) deemed approved pursuant to Section
4(c)(ii). The designation of a transaction as an Authorized Transaction
hereunder shall be binding against the Trustee and the Authorized
Transaction shall remain validly approved and authorized until the
earlier of (AA) the time that it is expressly countermanded by Valid
Notice from the Trustee to the Advisor or (BB) at the end of the
twentieth (20th) business day following its designation as an
Authorized Transaction.
(iv) INVESTMENT AUTHORITY. With respect to any
Authorized Transaction, the Advisor may take any and all action
necessary or desirable to effect such Authorized Transaction, including
but not limited to (A) placing an order with a broker named in the
Broker List for the execution of the Authorized Transaction and (B)
issuing to the Trustee such instructions as may be appropriate in
connection with the settlement of such Authorized Transaction.
(v) VALID NOTICE. "Valid Notice" shall mean (A)
written notice or communication, which may be made by facsimile or by
electronic transmission in a format and method reasonably acceptable to
the Trustee, or (B) oral notice or communication that is recorded by
the Trustee or the Advisor and is available for subsequent
verification.
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(d) CUSTODY OF ASSETS AND CONFIRMATION OF TRANSACTIONS.
To the extent required by applicable law, the Advisor shall direct that all
securities purchased and the proceeds from the sale of securities for the
Subaccount be delivered to the Trustee, unless otherwise directed by the
Trustee. The Advisor shall direct any broker effecting a transaction with
respect to the assets of the Subaccount to send the Trustee a duplicate copy of
any confirmation of any such transaction, except that the Advisor may make other
arrangements (which are reasonably satisfactory to the Trustee) for the Trustee
to receive such duplicate confirmations or comparable information acceptable to
the Trustee.
(e) COMMUNICATIONS REGARDING INVESTMENT SECURITIES. The
Trustee shall send, or cause to be sent, on a timely basis, copies of all
communications (including but not limited to proxy statements, tender offers and
class action communications) from or relating to companies, the securities or
other instruments of which are held in the Subaccount, to the Advisor. The
Advisor shall be responsible for making a recommendation to the Trustee, in such
detail and specificity as the Trustee may reasonably require, as to the
appropriate response to such communications (the "Suggested Response"). Such
Suggested Response shall be made by the Advisor by Valid Notice, at least one
(1) complete business day (i.e., not later than the same time of day or the next
business day) prior to the deadline for such response. Such Suggested Response
shall be directed to the employee or employees of the Trustee designated for
such purpose by the Trustee from time to time by Valid Notice. If the Trustee
decides not to follow the Suggested Response, it shall so notify the Advisor by
Valid Notice (the "Trustee's Rejection") not later than the earlier of one (1)
complete business day (i.e., not later than the same time of day or the next
business day) following its receipt of the Suggested Response or two (2) hours
before the response deadline. Failure by the Trustee to give the Trustee's
Rejection to the Advisor within such period shall constitute the Trustee's
approval of the Suggested Response, and shall constitute authorization to the
Advisor to (i) take such action as is appropriate to effect the Suggested
Response and (ii) issue to the Trustee such instructions as may be appropriate
in connection with effecting the Suggested Response.
(f) ADVISOR'S DUTY OF CARE. The Advisor shall discharge
its duties with respect to the Subaccount solely in the interests of the
participants in the Plans and their beneficiaries with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent person
acting in like capacity and familiar with such matters would use in the conduct
of an enterprise of like character and with like aims. The Advisor shall not be
responsible for the operation or administration of the Trusts or the Plans. The
Advisor shall have no investment advisory responsibilities other than those
expressly provided in this Agreement. The Advisor shall discharge its duties in
accordance with the requirements of ERISA, other applicable law and this
Agreement.
(g) FIDELITY BOND AND INSURANCE. The Advisor shall
maintain for the period of the Agreement a fidelity bond meeting the
requirements of Section 412 of ERISA (unless the Trustee acknowledges that the
Advisor is exempt from such requirements) and including its officers, directors
and employees to the extent so required. The Advisor will provide to ABRA and
the Trustee within twenty (20)
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business days of the effective date of this Agreement copies of all insurance
policies (including fiduciary, errors and omissions, and fidelity bonds) that
could cover or relate to the Subaccount, the Fund, the Trusts or the Plans, and,
upon request by the Trustee or ABRA, a certificate of coverage with respect to
any such policies. The Advisor will notify ABRA and the Trustee of any material
changes in such policies, which change affects the coverage of the Advisor,
within twenty (20) business days after the earlier of when such changes are made
or are effective.
(h) BROKERAGE PRACTICES. In placing orders for the
purchase and sale of assets of the Subaccount in accordance with Subsection
4(c), the Advisor shall act in accordance with the procedures with regard to
brokerage practices for the Subaccount, as described in Appendix D. The Advisor
shall make its recommendations of brokers or dealers in accordance with its best
judgment and in a manner consistent with ERISA and other applicable law. The
Advisor shall recommend those brokers or dealers for inclusion on the Broker
List using its best judgment to choose the broker or dealer most capable of
providing the brokerage services necessary to obtain the "best available price
and most favorable execution." The Trustee recognizes that the Advisor may, in
accordance with Section 28(e) of the Securities Exchange Act of 1934, as
amended, recommend a broker or dealer who will charge a commission for effecting
a securities transaction that will exceed the amount of commission another
broker or dealer would have charged for effecting such transaction, where the
Advisor has determined in good faith that the amount of such commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer to, or for the benefit of, the Subaccount,
viewed in terms of either that particular transaction or such broker or dealer's
overall responsibilities with respect to the Subaccount.
(i) NONDISCLOSURE OF INFORMATION. To the extent necessary
for the execution of this Agreement or to satisfy the requirements for
disclosure to participants or to meet the requirements of Sections 8 and 9, the
Advisor shall keep in strict confidence all information about the financial
affairs of the Subaccount. The Advisor may include information about the
Subaccount in aggregate information provided by the Advisor as long as the
information is not set out separately or in any other manner that would enable a
third party to determine the financial affairs of the Subaccount.
(j) ADVISOR'S POTENTIAL CONFLICTS OF INTEREST. The
Advisor (and any affiliate thereof) may engage in any other business or act as
advisor to or investment manager for any other person, even though it (or any
affiliate thereof) or such other person has, or may have, investment policies
similar to those followed by the Advisor with regard to the Subaccount. Nothing
in this Agreement shall prevent the Advisor (or any affiliate thereof) from
buying or selling, or from recommending or directing such other person to buy or
sell, at any time, securities of the same kind or class recommended by the
Advisor to be purchased or sold for the Subaccount. The Advisor shall be free
from any obligation to the Subaccount to recommend any particular investment
opportunity which comes to it. However, if the Advisor effects the purchase or
sale of the same securities for the Subaccount and other accounts at the same
time that orders are open for the Subaccount and the other accounts, the pricing
of or proceeds from such
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securities shall be allocated among the other accounts and the Subaccount in a
just and equitable manner.
(k) VALUATION. At the request of the Trustee from time to
time, the Advisor shall provide pricing and valuation information with respect
to particular securities it has recommended for the Subaccount if the Trustee
has determined that such pricing and valuation information is not otherwise
reasonably available to the Trustee through standard pricing services.
5. REPRESENTATIONS BY THE TRUSTEE. The Trustee represents and
warrants that (a) there are no restrictions or limitations on the Subaccount's
investments imposed by applicable law other than (i) those set forth in the
Declaration of Trust, the Fund Declaration, this Agreement, and Appendix C, as
any of the same may be amended from time to time and communicated to the
Advisor, (ii) those provided in ERISA and (iii) any other investment restriction
or limitation imposed by law or regulation which in the Trustee's judgment is
applicable to the Subaccount and which is communicated by the Trustee to the
Advisor; and (b) disclosure to Plan participants contained in the Registration
Statement describing the Subaccount is accurate and prepared in accordance with
the requirements of Form S-1 under the Securities Act of 1933, as amended,
except that the Trustee makes no representation or warranty with respect to any
disclosure relating to the Advisor or its services with respect to the
Subaccount which the Advisor has prepared, approved in writing or has not
disapproved within five (5) business days following confirmed transmission by
facsimile, acceptable electronic transmission or overnight mail to a person
designated by the Advisor to review such disclosure.
6. LIABILITY OF THE ADVISOR; INDEMNIFICATION.
(a) LIMITATION OF LIABILITY OF THE ADVISOR. The Advisor
shall not be liable for any act or omission of any other person or entity
exercising a fiduciary responsibility, if such fiduciary responsibility has been
allocated to such other person or entity in accordance with this Agreement, the
Declaration of Trust, the Fund Declaration, the Plans or the Trusts, except to
the extent that the Advisor has itself violated its fiduciary responsibility or
its obligations under this Agreement, or except to the extent that applicable
law (including ERISA) may expressly provide otherwise.
(b) INDEMNIFICATION.
(i) INDEMNIFICATION OF ADVISOR. To the extent
permitted by applicable law, the Trustee agrees to indemnify and hold
harmless the Advisor for losses, damages or expenses resulting from (A)
actions taken by the Advisor in reliance on information provided by the
Trustee to the Advisor in accordance with this Agreement, including but
not limited to the Trustee's operating requirements and cash
availability information, (B) actions omitted to be taken by the
Advisor pursuant to instructions or directions provided by the Trustee
and/or (C) valuation of the assets held in the Subaccount, computation
of unit values for the Subaccount by the Trustee, or performance data
and other financial information provided by the Trustee to Subaccount
participants except to
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the extent that the Advisor has incorrectly reported or failed to
report securities transactions in the Subaccount to the Trustee as
provided in this Agreement and to the extent that any error in such
valuation or computation is due to prices or other information provided
by the Advisor.
(ii) INDEMNIFICATION OF THE TRUSTEE. To the
extent permitted by applicable law, the Advisor agrees to indemnify and
hold harmless the Trustee for any losses, damages or expenses resulting
from (A) any recommendation of the Advisor or based on information
provided by the Advisor, (B) the Advisor's failure to provide correct
and timely information or to make recommendations on a timely basis as
provided in the Agreement, and (C) any disclosure relating to the
Advisor or the services provided by the Advisor with respect to the
Subaccount which the Advisor has prepared, approved in writing or has
not disapproved within five (5) business days following transmission by
facsimile, acceptable electronic transmission or overnight mail to a
person designated by the Advisor to review such disclosure; PROVIDED,
HOWEVER, that the Advisor shall not be required to
indemnify and hold harmless the Trustee to the extent that such losses,
damages or expenses result from an act or omission of the Advisor with
respect to which the Advisor not only has used such care, skill,
prudence and diligence as a reasonably prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims, but also has otherwise
acted in accordance with this Agreement.
(iii) ADVISOR AND TRUSTEE INDEMNIFICATION
PROCEDURES. If the party seeking indemnification is either the Advisor
or the Trustee, such party shall promptly notify the indemnifying party
of any claim, action, suit or proceeding, or threat thereof, which may
result in a claim for indemnification. Upon such notification, the
indemnifying party may, at its option, undertake the conduct and cost
of defending any such claim, action, suit or proceeding and in such
case shall have full control of such defense, including but not limited
to selection of counsel (provided that such counsel must be reasonably
acceptable to the party being indemnified) and entry into settlement
agreements (provided that any such settlement agreement shall require
the consent of the party being indemnified, which consent shall not be
unreasonably delayed or withheld). The Trustee or the Advisor, as the
indemnifying party, shall not be liable for any legal or other expenses
incurred in connection with any such defense that were not specifically
authorized by it; PROVIDED, HOWEVER, if such indemnifying party fails
to undertake and prosecute vigorously the defense of any such claim,
action, suit or proceeding, it shall be liable for reasonable legal and
other expenses incurred by the party being indemnified.
(c) INDEMNIFICATION OF ABRA.
(i) To the extent permitted by applicable law,
the Advisor agrees to defend, indemnify and hold harmless ABRA, its
then present and former officers, directors and advisory directors, the
ABA, and its then
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present and former officers and Board of Governors (the "Indemnified
Persons") against any and all expenses (including attorney's fees,
judgments, fines and penalties, including any civil penalties assessed
under Section 502(l) of ERISA) and amounts paid in settlement actually
or reasonably incurred in connection with any threatened, pending or
current action, suit, proceeding or claim, whether civil, criminal,
administrative or otherwise, and the amount of any adverse judgment
entered against any of them and any reasonable expenses attendant
thereto by reason of any of the Advisor's acts or omissions in
connection with this Agreement. For the above defense, indemnity and
hold harmless provision to apply (i) the Indemnified Persons (or ABRA)
shall inform the Advisor promptly of any claims threatened or made
against any Indemnified Person, (ii) the Indemnified Persons shall
cooperate fully with the Advisor in responding to such threatened or
actual claims and (iii) any settlement agreement entered into by the
Indemnified Persons shall require the written approval of the Advisor,
which approval shall not be unreasonably withheld or delayed, and any
settlement agreement entered into by the Advisor shall require written
approval, within the time frame established by the Advisor, of the
Indemnified Persons, which approval shall not be unreasonably withheld.
(ii) RIGHT TO COUNSEL. The Indemnified Persons
shall have the right to employ counsel in their, its, his or her sole
discretion. Such Indemnified Persons shall be responsible for the
expenses of such separate counsel except as provided in Subsection
6(c)(iii). The Advisor agrees to cooperate fully with the Indemnified
Persons and their separate counsel in responding to such threatened or
actual claims.
(iii) SEPARATE COUNSEL. The Advisor agrees to
cooperate fully with the Indemnified Persons in responding to such
threatened or actual claims. The Indemnified Persons shall have the
right to reasonable expenses of separate counsel paid by the Advisor,
PROVIDED that the Advisor shall not be liable for any legal or other
expenses incurred in connection with any such threatened claim or
defense that were not specially authorized by the Advisor in writing
and PROVIDED that -------- the Advisor shall have received a written
opinion reasonably acceptable in form and substance to the Advisor of
counsel reasonably acceptable to the Advisor (and which counsel shall
not represent or otherwise be affiliated with any of the Indemnified
Persons) that there exists a material conflict of interest between one
or more of the Indemnified Persons and the Advisor in the conduct of
the response to a threatened claim or in the conduct of the defense of
an actual claim, in which event the Advisor shall be liable for the
reasonable legal expenses of each counsel whose appointment is
necessary to resolve such conflict; PROVIDED, HOWEVER, the Advisor
shall not be responsible for more than one (1) counsel for all
Indemnified Persons and selection of such counsel shall be reasonably
acceptable to the Advisor.
(iv) PAYMENT OF EXPENSES. Expenses (including
counsel fees) specifically authorized by the Advisor and actually and
reasonably incurred by the Indemnified Persons in defending against or
responding to such threatened
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or actual claims as provided in (i) and (iii) of this Subsection shall
be paid as they are incurred. If an Indemnified Person is reasonably
required to bring any action to enforce rights or collect monies due
under Subsection 6(c) and is successful in such action, the Advisor
shall reimburse such Indemnified Person or its subrogee for reasonable
fees and expenses incurred in bringing and pursuing such action.
(v) SUPPLEMENTAL RIGHTS. Indemnification
pursuant to Subsection 6(c) is intended to be supplemental to any other
rights to indemnification available to the Indemnified Persons. Nothing
herein shall be deemed to diminish or otherwise restrict the
Indemnified Persons' rights to indemnification under law.
(vi) THIRD PARTY BENEFICIARIES. The indemnifying
party acknowledges that the Indemnified Persons are intended to be
third-party beneficiaries of Subsection 6(c).
7. TRANSACTIONS PROHIBITED WITH RESPECT TO THE ADVISOR. The
Advisor, its officers, partners, directors and affiliates, and each of them,
shall not, with respect to the Subaccount, (a) as a principal, purchase assets
from or sell assets to the Fund, (b) receive any compensation or fees with
respect to the Fund, other than the fees provided for in Appendix E, (c) engage
in or recommend any transaction involving or affecting the Fund that such person
knows or should know is a prohibited transaction under ERISA unless such
transaction is exempt under the applicable provisions of ERISA or (d) direct
delivery of securities or payment to itself or direct any disposition of
securities or cash from the Subaccount except to the Trusts.
8. REPORTS AND MEETINGS.
(a) MONTHLY REPORTS. At least monthly the Advisor shall
render to the Trustee and ABRA, or their designee, reports concerning its
services under this Agreement and the status of the Subaccount, based on the
reporting procedures set forth in Appendix F, which is hereby adopted and made a
part of this Agreement, including statements of investments in the Subaccount.
(b) MEETINGS. The Advisor will meet with the Trustee and
ABRA and with such other persons as the Trustee or ABRA may designate on
reasonable notice and at reasonable times and locations, to discuss general
economic conditions, Subaccount performance, investment strategy and other
matters relating to the Subaccount.
(c) REPORTS PRIOR TO TERMINATION. On each day during the
period ten (10) business days prior to the effective date of the Advisor's
resignation or its removal under this Agreement by the Trustee (the "Termination
Date"), or on each day of such shorter period after which the Advisor has
received notice of its removal, the Advisor shall render to the Trustee and
ABRA, or their designee, a report of the current status of the Subaccount based
on the procedures set forth in Appendix F, including a statement of investments
in the Subaccount and on the day immediately following the
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Termination Date, such report shall be rendered in final form with respect to
the status of the Subaccount, including a statement of investments therein, as
of the close of business on the Termination Date.
(d) ADDITIONAL REPORTS. The Advisor shall furnish to the
Trustee and ABRA such additional reports and information as may be reasonably
requested by the Trustee or ABRA.
9. ACCOUNTING. The Advisor shall keep accurate and detailed
records concerning its services under this Agreement, including records of all
transactions effected and recommendations made during its performance of this
Agreement, and all such records shall be open to inspection at all reasonable
times by the Trustee and ABRA, or their designee, and by duly authorized
representatives of the Secretary of Labor and the Secretary of the Treasury
acting pursuant to their authority under ERISA and the Code, respectively, and
other appropriate regulatory authorities.
10. ADVISOR'S COMPENSATION. The amount and manner of payment of
fees payable by the Trustee to the Advisor for the Advisor's services under this
Agreement are set forth in Appendix E. The Advisor agrees that if it enters into
a fee schedule with any new non-eleemosynary client whose portfolio is advised
or managed under the same investment policies and objectives as the Subaccount,
and is similarly or smaller sized, for services which are similar to the
services provided under this Agreement and such fee schedule contains fees that
are less than the fees set forth in Appendix E, it will offer the same fee
schedule to the Trustee, which shall have the right to require the amendment to
Appendix E to reflect that lower fee schedule.
11. REMOVAL AND RESIGNATION.
(a) REMOVAL OF THE ADVISOR. Upon written notice to the
Advisor, the Advisor may be removed by the Trustee. Any transaction for the
Subaccount authorized by the Trustee prior to the receipt by the Advisor of the
notice shall be consummated, and the Advisor shall not recommend any transaction
for the Subaccount subsequent to the receipt of the notice.
(b) RESIGNATION OF THE ADVISOR. The Advisor may resign
under this Agreement upon sixty (60) days' prior written notice to the Trustee.
The Advisor shall concurrently advise ABRA in writing of such resignation and
the effective date thereof.
(c) TERMINATION OF OBLIGATIONS. The respective
obligations of the Advisor and the Trustee under Section 6 of the Agreement
shall survive any such removal or resignation or other termination of this
Agreement.
12. TERMINATION, AMENDMENT OR MODIFICATION. The provisions of this
Agreement may not be terminated, changed, modified, altered or amended in any
respect except in a writing signed by the parties.
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13. DEFINITIONS. As used herein the following terms shall have the
meanings ascribed to them in the following sections of this Agreement:
TERM DEFINED SECTION
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ABA Members Collective Trust Introduction
ABA Members Plans Introduction
ABRA Introduction
Advisers Act 2
Advisor Introduction
Advisor's Amendment 4(c)(i)
Advisor's Recommendation 4(c)(ii)
Agreement Introduction
Authorized Transaction 4(c)(iii)
Broker List 4(c)(i)
business day 2
Code Introduction
Declaration of Trust Introduction
ERISA 2
Fund Introduction
Fund Declaration 4(b)
Indemnified Persons 6(c)(i)
Plans Introduction
State Street Introduction
Subaccount Introduction
Suggested Response 4(e)
Termination Date 8(c)
Trustee Introduction
Trustee's Response 4(c)(ii)
Trustee's Rejection 4(e)
Trusts Introduction
Valid Notice 4(c)(v)
14. GOVERNING LAW. This Agreement shall be construed and enforced
according to the laws of The Commonwealth of Massachusetts and, to the extent of
any federal preemption, the laws of the United States of America.
15. BINDING UPON SUCCESSORS. This Agreement shall be binding upon
and enforceable by the successors to the parties hereto.
16. ASSIGNMENT. The Advisor may not assign this Agreement
(including for this purpose any assignment within the meaning of the Advisers
Act), or any rights or responsibilities hereby created, without the prior
written consent of the Trustee, which consent may be withheld by the Trustee in
its sole discretion; however, the parties may amend this Agreement from time to
time in accordance with Section 12.
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17. NOTICES. Written notices shall be deemed effective with
respect to a party upon delivery to such party at the address set forth below or
to such other address as may be provided in writing from time to time by such
party:
To the Advisor: Xxxxxx Investment Partners Inc.
0000 Xxxxxxxxx Xxxxx Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, President
To the Trustee: State Street Bank and Trust Company
Batterymarch Park III
Three Xxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: ABRA Division Head
If by mail to: State Street Bank and Trust Company
Xxxx Xxxxxx Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: ABRA Division Head
18. ORAL COMMUNICATIONS. Oral communications between the parties
to this Agreement shall be effective hereunder only to the extent specifically
authorized herein. By its execution of this Agreement, each of the parties
hereto acknowledges that the other party may record any such oral communications
and consents to any such recording. All oral communications shall be confirmed
in writing, except that if an oral communication is recorded such recording
shall be controlling and no written confirmation shall be required.
19. AUTHORITY. The parties to this Agreement represent,
respectively, that they have duly authorized the execution, delivery and
performance of this Agreement and that neither such execution and delivery nor
the performance of their obligations hereunder conflict with or violate any
provision of law, rule or regulation, or any instrument to which either is a
party or to which any of their respective properties are subject and that this
Agreement is a valid and binding obligation.
20. AUTHORIZED REPRESENTATIVES OF THE ADVISOR. The Advisor from
time to time shall by written notice certify to the Trustee the name of the
person or persons authorized to act on behalf of the Advisor. Any person so
certified shall be deemed to be the authorized representative of the Advisor.
The Advisor shall give written notice to the Trustee when any person so
certified ceases to have the authority to act on behalf of the Advisor, but such
revocation of authority shall not be valid until the notice is received by the
Trustee. The Advisor will notify the Trustee in writing of any significant
changes in the officers of the Advisor and any changes in the personnel of the
Advisor responsible for providing investment advice with respect to the assets
of the Subaccount within twenty (20) business days after such change.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
8th day of May, 2002.
TRUSTEE:
--------
STATE STREET BANK AND TRUST COMPANY
Attest: /s/ Xxxxxx X. Xxxxxx By /s/ Xxxx X. Xxxxxxxxxxx
------------------------ --------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxxxxx
Title: Assistant Vice President Title: Vice President
ADVISOR:
-------
XXXXXX INVESTMENT PARTNERS
Attest: /s/ Xxxxxxx XxXxxx By /s/ Xxxx X. Xxxxxx
------------------------ --------------------------
Name: Xxxxxxx XxXxxx Name: Xxxx X. Xxxxxx
Title: Director of Client Services Title: Vice Chairman
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APPENDIX A
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ASSETS IN THE SUBACCOUNT
------------------------
The assets in Subaccount shall consist of the following assets:
(a) All assets held in the Fund on July 15, 2002; and
(b) All amounts subsequently contributed or transferred to the
Fund; and
(c) All interest, income and gains attributable to such amounts;
minus
(d) All losses attributable to the amounts described in clauses
(a) through (c) above; minus
(e) All amounts withdrawn or transferred from the Fund (not
including amounts withdrawn to pay fees and expenses); minus
(f) A pro rata portion of the fees and expenses for the Fund
(except for the fees and expenses chargeable directly for the advisory services,
management, administration, custody and accounting for the Subaccount and any
other subaccounts of the Fund); minus
(g) The amounts withdrawn to pay the fees and expenses chargeable
directly for the advisory services, management, administration, custody and
accounting for the Subaccount.
APPENDIX B
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FUND DECLARATION
----------------
APPENDIX C
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ADDITIONAL INVESTMENT OBJECTIVES AND RESTRICTIONS
-------------------------------------------------
The Investment Advisor shall not recommend an investment:
(i) if such investment, at the time of purchase, would
cause more than 5% of the assets of the Subaccount to
be invested in warrants generally, or more than 2% of
the assets of the Subaccount to be invested in
warrants not listed on a nationally recognized United
States securities exchange;
(ii) if such investment, at the time of purchase, would
cause more than 10% of the assets of the Subaccount
to be invested in illiquid securities, including
repurchase agreements with maturities in excess of
seven days or portfolio securities that are not
readily marketable;
(iii) in any industry, if such investment, at the time of
purchase, would cause more than 25% of the assets of
the Subaccount to be invested in such industry;
(iv) in securities of an issuer if such investment, at the
time of purchase, would cause more than 5% of the
assets of the Subaccount to be invested in the
securities of such issuer; or
(v) if such investment, at the time of purchase, would
cause more than 15% of the assets of the Subaccount
to be invested in foreign securities, including ADRs.
APPENDIX D
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BROKERAGE PRACTICES
-------------------
The Investment Advisor has provided the Trustee with a copy of Part II
of the Form ADV most recently filed by the Investment Advisor with the
Securities and Exchange Commission, in which form the general brokerage
practices of the Investment Advisor are described. The Investment Advisor will
from time to time provide the Trustee with amendments to such form, in
accordance with applicable law.
APPENDIX E
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ADVISOR FEES
------------
For its services rendered as investment advisor under the Agreement,
the Investment Advisor will be compensated at the annual rates set forth below,
based on the aggregate value of the assets in the Subaccount. Such compensation
shall be calculated and accrued on a daily basis and paid monthly from the
assets of the Subaccount.
VALUE OF ASSETS IN SUBACCOUNT RATE
----------------------------- ----
First $50 million .65%
Next $50 million .60%
Over $100 million .55%
APPENDIX F
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I. OPERATIONAL PROCEDURES BETWEEN THE TRUSTEE AND THE ADVISOR
A. It is understood and agreed that the Trustee:
1. holds title to all of the assets of the Subaccount;
2. is responsible to assure that investments made for
the Subaccount meet applicable requirements and
limitations;
3. is required to value such assets; and
4. will maintain the proper accounting records for the
Subaccount.
B. Cash.
1. The Trustee will communicate daily to the Advisor by
12:00 noon (Eastern Time) the cash available for
investment in the Subaccount, which information will
be based on the procedures set forth below.
2. Extraordinary cash flow requirements - In the event
the Trustee becomes aware of facts that will require
the withdrawal of an extraordinary amount of cash
from the Subaccount under the Plans, the Trustee will
promptly communicate to the Advisor such facts,
including the amount and date of such cash
withdrawal.
C. The Advisor will communicate to the Trustee purchases and
sales of investments in the Subaccount as follows:
1. Common Stock and Long-Term Debt Securities.
(a) The Advisor will communicate daily to the Trustee no
later than 9:00 p.m. (Eastern Time) on the trade date
all purchase and sale transactions for the
Subaccount. Each daily report will indicate
separately number of purchases and sales and total
trades. On days when no trades are recommended the
Advisor will issue a negative trade report. Such
communication will include the following information
for each trade:
o Buy or sell
o Trade date (if as of trade)
o Settlement date
o Name of broker or dealer or other party
o Name of issue
o CUSIP number/Cedel
o Number of shares (or principal amount in
local currency if debt security)
o Price per share (or principal amount if debt
security) in local currency
o Price per share (or per $100 (or local
equivalent) of debt security) in local
currency
o (For debt) Interest purchased or sold
o Agreed upon commission per share (or per
other unit of interest)
o Total commission
o Exchange on which transaction is executed
(or transacted over the counter)
o Net amount
o Such other information as may be required by
the Trustee
o Clearing broker ("same" if same as trading
broker)
o SIC Code
(b) For DTC eligible securities and when applicable, the
Trustee shall confirm to DTC, as soon after trade
date as possible, through an acknowledgement
procedure acceptable to DTC and the Trustee, all
trades which accurately reflect the trades entered
into for the Subaccount as reported to the Trustee by
the Advisor.
(c) The Advisor will arrange for a copy of each
confirmation to be sent to the Trustee or an
affiliate as designated by the Trustee.
2. Short-Term Debt Securities
(a) As of 10:30 a.m. (Eastern Time) on each business day,
the Trustee will invest available cash in the
Subaccount by purchasing and selling units for the
Subaccount in the Yield Enhanced Short Term
Investment Fund ("YES"), unless the Advisor notified
the Trustee prior to such time that the Advisor
recommends investment in accordance with paragraph b.
The Trustee shall confirm daily the number of units
purchased and sold on the preceding day, as well as
the YES unit value at the close of business on the
preceding day.
(b) Alternatively, the Advisor may notify the Trustee in
advance in writing that the Advisor recommends that
the Trustee invest available cash in the Subaccount.
(i) In such event, the Advisor will communicate
daily to the Trustee or an affiliate no
later than 10:00 a.m. (Eastern Time) all
recommended purchase and sale transactions
in short-term securities to be made for the
Subaccount. Such communication will include
the following information for each trade:
o Buy or sell
o Trade date (if as of trade)
o Settlement date
o CUSIP number/Cedel
o Name of broker or dealer or other party, if
other than the issuing company
o Name of issue
o Current par value in local currency
o Cost of acquisition or proceeds of sale
o Last coupon date
o Discount or interest rates
o Maturity date of purchase
o Collateral
o Currency
o Such other information as may be required by
the Trustee
(ii) The Advisor also will direct each executing
broker or dealer or other party or the
issuing companies to deliver or receive the
securities against payment for the account
of the Trustee.
(iii) The Trustee will convey to the Advisor no
later than the next business day a report
showing in detail the previous day's
transactions based on the procedures set
forth in Section II below. The Advisor will
(a) promptly check the data in such report
and (b) immediately advise the Trustee by
telephone (followed by a written
confirmation within two days) of any
variances.
(iv) If such investments are held to maturity the
Trustee will redeem such securities on the
maturity date and make the funds available
to the Advisor for reinvestment.
(v) The Advisor will also direct each broker or
dealer or party or issuing company to convey
a copy of each confirmation to the Trustee.
II. VALUATION AND ACCOUNTING OF THE SUBACCOUNT
A. The assets of the Subaccount are valued as provided in the
current prospectus included in the registration statement
filed with the Securities and Exchange Commission.
B. Stocks and long-term debt security transactions will be
recorded not later than the business day following the trade
date. Dividend income will be recorded on the ex-dividend
date. Interest income will be accrued daily.
III. COMMUNICATIONS TO INVESTMENT ADVISOR
A. State Street will send the following reports on a monthly
basis to the Advisor by overnight mail so that they are
received no later than the tenth business day of the following
month:
o Statement of Investments showing account holdings as
of the last day of the month.
o Monthly Summary of Account Activity Report (Trials).
o Daily Purchase Activity Report (Purchases and Sales
Report).
o Daily Sales Activity Report (Purchases and Sales
Report).
o Actual Dividend Receipts Reports (Dividend and
Interest Report).
o Summary of Accounting Journals Report - This report
displays a daily summary of client contributions,
client withdrawals and expenses charged to the
account (Cash Summary Report).
o Stock Dividend/Stock Split Schedule Report. Mergers,
spinoffs, exchanges, etc. will also be indicted on
this report as they occur.
o YES Report. (This report will be distributed only if
the Subaccount participates in YES for short term
investments.)
B. State Street will send the Advisor the existing broker list
within two business days prior to the end of each month to
determine whether any changes will be made under Section 4(c)
of the Agreement.
C. The Advisor will send the following reports (or information)
to the Trustee:
o Monthly holdings (at month end) with security, #
shares, price, yield, cost and market value.
o List of transactions (purchase and sales) for the
month with security, # shares and per share sale
total.
o Monthly return on portfolio, gross of fees.
IV. NOTICES
The methods of communication and the persons to whom the information
required by this APPENDIX F will be given, will be set forth in writing
between the Trustee and the Advisor from time to time as required by
the circumstances to carry out the intent and purposes of the Agreement
and this APPENDIX F.
