EXHIBIT 10.14
AMENDED AND RESTATED CUSTOMER AGREEMENT AND TRADING AUTHORIZATION
BETWEEN
MAX RE DIVERSIFIED STRATEGIES, LTD.
AND
▇▇▇▇▇ CAPITAL MANAGEMENT, INC.
This Amended and Restated Customer Agreement and Trading Authorization
("Agreement") is made and entered into as of the date set forth at the end of
this Agreement by and between ▇▇▇▇▇ Capital Management, Inc. ("MCM"), a
corporation organized under the laws of the State of Connecticut with its
principal business address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, and the undersigned customer ("Customer") and amends and restates the
Customer Agreement and Trading Authorization among the parties dated December 1,
1999 (the "Original Agreement");
WHEREAS, Customer and MCM entered into the Original Agreement,
Customer has been restructured and Customer and MCM now wish to amend and
restate the Original Agreement; and
WHEREAS, Customer hereby represents to MCM that Customer has capital
available and seeks to achieve the highest return on capital consistent with
principles designed to minimize risk of capital loss through investments and
transactions, both long and short, across global markets; and
WHEREAS, Customer hereby represents to MCM that Customer is a duly
organized corporation under the International Business Companies Act of the
Bahamas, with full power and authority to enter into and perform its obligations
under this Agreement and to conduct its investment business, and the performance
by Customer of its obligations under this Agreement will not violate the terms
or provisions of, or constitute a default under, the organizational and
operational documents of Customer or any other agreement to which Customer is a
party or by which it is bound;
WHEREAS, this Agreement has been duly and validly authorized, and has
been duly and validly executed and delivered by the undersigned on behalf of
Customer, and this Agreement is a binding agreement of Customer enforceable in
accordance with its terms;
WHEREAS, Customer hereby represents to MCM that it is a qualified
eligible person as defined in Rule 4.7(a) of the Commodity Futures Trading
Commission ("CFTC"), and MCM hereby represents to Customer that MCM is
registered with the CFTC as a commodity trading advisor and is a member of the
National Futures Association ("NFA"); and
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WHEREAS, Customer hereby represents to MCM that Customer has complied
and will continue to comply with all laws, rules, and regulations having
application to its business, properties, and assets (including, if appropriate,
the Commodity Exchange Act, as amended, the Securities Act of 1933, as amended,
the Investment Company Act of 1940, as amended, the Investment Advisers Act of
1940, as amended, CFTC regulations, NFA rules, United States and non-United
States securities laws, and state securities laws), and there are no actions,
suits, proceedings, or investigations pending or, to the knowledge of the
undersigned, threatened against Customer or any of its principals or agents, at
law or in equity or before any governmental department, commission, board,
bureau, agency or instrumentality, or any self-regulatory organization, or any
securities or commodity exchange, in which an adverse decision could materially
and adversely affect Customer's ability to conduct its investment pool business
or to comply with, and perform its obligations under, this Agreement;
WHEREAS, Customer hereby represents to MCM that Customer is fully
familiar with the speculative nature of leveraged securities and commodity
interest trading and its high degree of risk suitable only for a person who can
sustain substantial losses which may be far in excess of such person's funds on
deposit in such person's trading account;
WHEREAS, Customer hereby represents to MCM that Customer is willing
and able, financially and otherwise, to assume the risks of this investment and
has the financial ability to bear losses in an amount equal to Customer's entire
net worth;
WHEREAS, Customer hereby agrees that the representations and
warranties of Customer contained in this Agreement shall be continuing during
the term of this Agreement and, if at any time any event shall occur which would
make any of the foregoing incomplete or inaccurate, Customer shall promptly
notify MCM of the occurrence of such event; and
WHEREAS, Customer desires to continue to retain MCM as Customer's
trading manager upon the terms and conditions set forth in this Agreement, and
MCM desires to continue to service Customer in such capacity upon such terms and
conditions;
NOW, THEREFORE, in consideration of the premises set forth above, the
parties hereto do hereby agree as follows:
1. MCM shall act as the trading manager for Customer. MCM shall have sole
and exclusive authority and responsibility for directing the investment and
reinvestment of Customer's assets pursuant to and in accordance with MCM's best
judgment, including the authority to allocate and reallocate, in its sole
discretion, all or any portion of Customer's assets other trading advisors
through managed accounts or collective investment vehicles; provided, however,
that MCM's authority shall be subject to the investment guidelines of Customer
attached hereto as Exhibit A, as amended from time to by Customer and provided
to MCM. MCM shall have the authority to negotiate the fees to be paid by
Customer to such advisors. It is understood that some or all aspects of the
investment policies and trading practices employed by such advisors may differ
in material ways from those utilized by MCM in the management of its other
customers' accounts. Areas in which the advisors' management may deviate from
that of MCM might include, but would not be limited to, the following: trading
and investment strategies; selection of brokers and dealers and placement of
Customer's portfolio transactions; level and use of brokerage commissions and
other charges generated by the execution of Customer's portfolio transactions,
including the possible receipt of goods and services from a broker or dealer
other than the type of research and brokerage services permitted to be received
by MCM pursuant to this Agreement, the use made of such goods and services and
the fact that some non-research goods and services provided in connection with
the execution of Customer's portfolio transactions may be used to benefit
parties other than Customer. MCM initially intends to allocate a substantial
portion of Customer's assets to other investment vehicles managed by MCM.
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2. Customer hereby constitutes, appoints, and authorizes MCM as
Customer's true and lawful agent and attorney-in-fact, in Customer's name,
place, and stead, to purchase, sell (including short sales), trade, and
otherwise acquire, hold, dispose of, and deal in securities and commodity
interests, on margin or otherwise, on United States and foreign exchanges, over-
the counter, in the interbank market, and otherwise and to make and take
delivery of securities and commodities in fulfillment of any security and
commodity interest contracts, all for Customer's account and risk. Customer
hereby gives and grants to MCM full power and authority to act for Customer and
on Customer's behalf to do every act and thing whatsoever requisite, necessary,
or appropriate to be done in connection with this power of attorney as fully and
in the same manner and with the same force and effect as Customer might or could
do if personally present, and Customer hereby ratifies all that MCM may lawfully
do or cause to be done by virtue of this power of attorney. Customer hereby
ratifies and confirms any and all transactions heretofore made by MCM for
Customer's account and agrees that the rights and obligations of Customer in
respect thereof shall be governed by the terms of this Agreement. Without
limiting the generality of the foregoing in the event that MCM determines itself
to trade for the Customer's account or selects other advisors to trade
individual managed accounts for the Customer, MCM is authorized to select
brokers and dealers and their agents (collectively, "Customer's Brokers")
through or with which Customer shall effect transactions, negotiate the fees to
be charged by Customer's Brokers in connection with such transactions and
execute all account and transaction documentation.
Customer understands and agrees that the primary consideration in allocating
portfolio transactions of Customer and other accounts MCM manages to brokers and
dealers will be to obtain favorable prices and efficient executions. Consistent
with this policy, consideration will be given to placing orders with brokers or
dealers who also provide research and brokerage services to Customer, MCM and
its affiliates, or pay the costs thereof (including the payment of such costs
for which Customer, MCM or its affiliates otherwise would be obligated),
provided such research and brokerage services are to be used in connection with
the investment management process. These research and brokerage services may
include, but will not be limited to, the following: written information and
analyses concerning specific security or commodity interests, issuers or
sectors; market, financial or economic studies or forecasts; financial
publications; statistics or pricing services, as well as discussions with
research personnel; or hardware, software, data base and other technical or
telecommunication services including telephone lines or related equipment,
consulting services or maintenance services utilized in connection with or in
support of the investment management process. Accordingly, Customer may be
deemed to be paying for research and brokerage services with "soft" or
commission dollars.
Customer understands that MCM's brokerage allocation practices and policies
(including arrangements whereby brokers or dealers provide research and
brokerage services to MCM for "soft" dollars) are not designed or expected to,
and in many cases will not, satisfy the conditions and requirements necessary to
fall within the safe harbor created by Section 28(e) of the Securities Exchange
Act of 1934, which confers certain protection on money managers who use
portfolio commissions from their customers' accounts to obtain research and
brokerage services. The safe harbor provides that certain conduct is not deemed
a violation of law or a breach of fiduciary duty, for example, and relieves a
money manager from the obligation of justifying commission payments for research
and brokerage services on an account-by-account basis.
Customer further understands and consents to MCM and its affiliates obtaining
such research and brokerage services from brokers and dealers in consideration
of commissions, fees, charges or other remuneration generated by the execution
of Customer's portfolio transactions. MCM and its affiliates may use such
research and brokerage services in connection with the management of any or all
of the accounts they manage, and in their own proprietary investment activities.
MCM, however, will not necessarily use all such research and brokerage services
in connection with the management of Customer's account.
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Under the foregoing policies, Customer may be charged higher brokerage
commissions or other charges than might be obtainable if transactions were
effected through brokers or dealers which do not provide research or brokerage
services. MCM believes that such research and brokerage services will benefit
Customer by supplementing the research and brokerage services otherwise
available to MCM and Customer.
MCM is also authorized to and may determine that portions of the commodities and
securities commissions and other charges arising from Customer's portfolio
transactions shall be paid to persons who assist in the placing of Customer's
shares or used to cover direct obligations of Customer.
For purposes of this Section, "affiliates" means directors and officers of MCM
and entities owned or controlled by such directors or officers.
3. MCM's services to Customer shall not be deemed to be exclusive to
Customer, and MCM shall be free to render similar or different services to
others. Customer understands and agrees that MCM's strategy for Customer's
account is different from the strategies it uses for others of its customers.
4. Any and all transactions effected by MCM for Customer's account shall
be subject to the constitution, by-laws, rules, regulations, orders, and customs
and usages of the exchange or market where executed (and of its clearinghouse,
if any), and to the provisions of the United States securities laws and the
United States Commodity Exchange Act, as amended, and to the rules, regulations,
and orders promulgated from time to time thereunder, and to all applicable laws,
rules and regulations of the United States, the various states in the United
States, and foreign jurisdictions. MCM shall not be liable to Customer as a
result of any action taken by MCM which is necessary to comply with any such
constitution, by-law, rule, regulation, order, custom, usage, act or statute.
5. Customer, and not MCM, shall pay all brokerage commissions, margins,
option premiums, interest charges, floor commissions and fees, and other
transaction costs and expenses charged and incurred by Customer's Brokers in
connection with MCM's trading for the account of Customer.
6. All transactions effected for Customer's account by MCM shall be for
Customer's account and risk. MCM has made and makes no guarantee whatsoever as
to the success or profitability of MCM's trading methods and strategies, and
Customer acknowledges that Customer has received no such guarantee from MCM or
any of its employees, principals, or agents and has not entered into this
Agreement in consideration of or in reliance upon any such guarantee or similar
representation from MCM or any of its employees, principals, or agents.
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7. Neither MCM nor its principals or agents, nor its or their directors,
officers, employees or agents shall be liable to Customer or to any other party,
except that MCM shall be liable to Customer for acts or omissions by it or its
principals, employees, or agents which constitute gross negligence, willful
malfeasance, or for not having acted in good faith in the reasonable belief that
such actions were in, or not opposed to, the best interests of Customer.
Customer shall indemnify, hold harmless, and defend MCM and its principals and
agents, and its and their directors, officers, employees and agents from and
against any liability, loss, cost, and expense, including attorneys' fees, that
any of them may become subject to in acting as contemplated under this
Agreement, or in connection with any transaction for Customer's account, or in
connection with Customer's failure to pay any management fees and/or incentive
fees to MCM or in connection with investigating or defending any such liability,
loss, cost, or expense covered by this indemnity, provided that the conduct of
such person did not constitute willful malfeasance or gross negligence and was
done in good faith and in a manner reasonably believed to be in, or not opposed
to, the best interests of Customer. Customer shall advance to MCM the amount of
any expenses covered by this indemnity, provided that MCM shall repay such
amount if it shall ultimately be determined that MCM is not entitled to
indemnification as provided herein.
8. MCM shall not receive any compensation for its advisory services under
this Agreement. It is acknowledged, however, that MCM intends to allocate
Customer's assets to other collective investment vehicles to which MCM acts as
trading manager and that those vehicles compensate MCM for its services
including a management fee based on assets under management and an incentive fee
based on trading profits. Customer and MCM agree to negotiate the payment of
advisory fees to MCM under this Agreement upon written notice by MCM to Customer
provided no less than one year after the successful completion of the initial
public offering of the parent company of Customer. No retroactive advisory fees
shall be paid to MCM with respect to the period prior to such negotiations.
Notwithstanding the foregoing, MCM may at any time during the term of this
Agreement provide administrative and accounting services to Customer at fees to
be negotiated by the parties.
9. Customer hereby authorizes and directs Customer's Brokers to send to
MCM a copy of the monthly account statements with respect to Customer's
account(s) which are sent to Customer, and Customer's Brokers are similarly
authorized and directed to provide MCM with copies of all confirmations,
purchase and sale statements and other documents relating to Customer's
account(s).
10. This Agreement shall become effective only after it shall have been
signed by all parties. This Agreement is a continuing one and shall remain in
full force and effect until terminated as of any calendar quarter-end upon
forty-five days' written notice to the other party. Any notice of termination
given by Customer or MCM shall have no effect upon liabilities and commitments
initiated, made, or accrued prior to the effective date of such termination.
11. All notices to either party shall be in writing. All notices to MCM
shall be sent to MCM at the address appearing at the beginning of this
Agreement. All notices and bills to Customer shall be sent to Customer at the
address appearing at the end of this Agreement. Either party from time to time
may designate in writing any other address to which notices, bills, and
communications to such party may be sent.
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12. This Agreement may not be assigned by either party without the prior
express written consent of the other party.
13. This Agreement constitutes the entire agreement between the parties
with respect to the matters referred to herein, and no other agreement, verbal
or otherwise, shall be binding as between the parties unless it is in writing
and signed by the party against whom enforcement is sought.
14. No provision of this Agreement may be amended or waived unless such
amendment or waiver is in writing and signed by the parties. No amendment or
waiver of any provision of this Agreement may be implied from any course of
dealing between the parties or from the failure of either party to assert its
rights under this Agreement on any occasion or series of occasions.
15. If any provision of this Agreement is, or at any time shall become,
inconsistent with any present or future law, rule, regulation, or ruling of any
jurisdiction, court, or regulatory body, exchange, or board having jurisdiction,
such provision shall be deemed rescinded or modified to conform to such law,
rule, regulation, or ruling and the remaining provisions of this Agreement shall
not be affected thereby and shall remain in full force and effect.
16. This Agreement shall be deemed to have been made under, and shall be
governed by and construed and enforced in accordance with, the law of the State
of New York, U.S.A. (excluding the law thereof which requires the application of
or reference to the law of any other jurisdiction).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
14th day of June, 2001.
▇▇▇▇▇ CAPITAL MANAGEMENT, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MAX RE DIVERSIFIED STRATEGIES, LTD.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
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EXHIBIT A
Investment Policy Guidelines
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