Exhibit 10.42
BANC ONE INVESTMENT ADVISORS CORPORATION
INVESTMENT ADVISORY AGREEMENT
(FOR NON-EB ACCOUNTS)
This Investment Advisory Agreement ("Agreement") is entered into effective
as of June 16, 2004, by and between NORTH POINTE CASUALTY INSURANCE COMPANY
("Client") and BANC ONE INVESTMENT ADVISORS CORPORATION ("Investment Advisor").
In consideration of the mutual covenants and agreements contained in this
Agreement, Client and Investment Advisor agree as follows:
1. APPOINTMENT OF MANAGER AND ESTABLISHMENT OF ACCOUNT. Client appoints
Investment Advisor to manage the assets as designated by Client in its
discretionary advisory account (the "Account"). All services shall be performed
in accordance with the following terms and conditions of this Agreement.
Custody, possession and collection of income from Account assets shall be the
sole obligation of the Account's separately appointed custodian ("Custodian").
2. ACCEPTANCE OF APPOINTMENT. Investment Advisor accepts its appointment as
investment manager for the Account. Investment Advisor shall invest, reinvest
and manage the securities, cash and/or other assets of the Account subject to
written investment policies and guidelines (the "Investment Guidelines")
established by Client from time to time and delivered to Investment Advisor. The
initial Investment Guidelines are attached as Exhibit A. Client may amend the
Investment Guidelines contained in Exhibit A upon written notice to Investment
Advisor; provided such amendment becomes effective only upon Investment
Advisor's written acknowledgment of its receipt of such amendment. As a
condition of its acceptance, Investment Advisor shall be entitled to rely on
such financial and other information relating to investment of Account assets as
it may receive from time to time from Client.
Subject to the Investment Guidelines, investments may be made in, but are
not limited to, securities of any kind including common or preferred stocks,
warrants, rights, corporate or government bonds or notes, repurchase agreements,
securities of any open-end or closed-end management type investment company or
investment trust registered under the Investment Company Act of 1940, limited
liability legal entities and non-registered pooled funds. The fact that any bank
or non-bank subsidiary of Bank One Corporation is selling or providing services
to and receiving remuneration from the foregoing repurchase agreement,
investment company, investment trust or other investment product as
counterparty, investment advisor, custodian, transfer agent, registrar, or
otherwise shall not preclude Investment Advisor from investing the Account in
the security.
3. TRADING AUTHORIZATION. Client grants Investment Advisor discretionary
trading authority and appoints Investment Advisor as agent and attorney-in-fact
with respect to investments on behalf of the Account for so long as Investment
Advisor's appointment under Section 1 above remains in effect. Investment
Advisor shall carry out such trading in conformance with the Investment
Guidelines. Pursuant to such authorization, Investment Advisor may direct the
purchase, sale, exchange, conversion or other acquisition or disposition of
securities and other investments in the Account, as well as arrange for delivery
and payment, and act on behalf of Client in all other matters incidental to the
handling of Account investments. Client grants Investment Advisor full
authorization
to issue such instructions, and engage in such transactions, as may be
appropriate in connection with the management of the Account.
4. EXECUTION SERVICES. Investment Advisor will use the execution services
of such broker-dealers as it may select from time to time, which will be
entitled to compensation for their services, to effect transactions for the
purchase and/or sale of securities and other investments by the Account. In
connection with transactions effected for the Account, Client authorizes
Investment Advisor to establish and trade in accounts in its or the name of the
Account with members of national or regional securities exchanges and the
National Association of Securities Dealers Inc., including "omnibus" accounts
established for the purpose of combining orders for more than one client.
In selecting brokers through which transactions for client accounts will be
executed, Investment Advisor's primary consideration will be the broker's
ability to provide best execution of trades. In making a decision about best
execution (and subject to section 28(e) of the Securities Exchange Act of 1934,
as amended), Investment Advisor may consider a number of factors including, but
not limited to, trade price and commission, quality of research and computerized
statistical services the broker may provide. The commission rates paid to any
broker for execution of transactions will be determined through negotiations
with the broker, taking into account industry norms for the size and type of
transaction, and the nature of brokerage and research services provided. Such
research services may include, but not be limited to, analysis and reports
concerning economic factors and trends, industries, specific securities, and
portfolio strategies. Research services furnished by brokers will generally be
used in connection with all Investment Advisor's advisory accounts, although not
all such services may be used with any particular account that paid commissions
to the brokers providing such services.
5. REPORTS. Investment Advisor will provide Client or its designated agent
with monthly reports as Client and Investment Advisor mutually agree. Reports as
to investment performance in the Account shall be provided monthly. Client
acknowledges that Custodian will furnish the official confirmations of Account
transactions and periodic Account statements detailing positions and activity.
6. FEES. Client shall compensate Investment Advisor for its services in
accordance with Investment Advisor's fee schedule attached as Exhibit B. The Fee
Schedule may be modified or changed by Investment Advisor upon 30 days written
notice to Client. Unless otherwise provided in Exhibit B, payment to Investment
Advisor shall be made quarterly in arrears, based on a calendar year, and the
fee shall be due and payable within 10 days after the end of each quarterly
period. If this Agreement commences at any time other than at the beginning of a
quarterly period, the first quarterly fee shall be prorated to the end of such
first quarterly period. If this Agreement is terminated, all fees due to
Investment Advisor shall be prorated to the date of termination. Investment
Advisor's fee is separate from and does not include brokerage commissions,
dealer spreads and other costs associated with the purchase or sale of
securities, custodial fees, interest, taxes and other Account expenses. These
expenses shall be the responsibility of Client.
By separate written authorization, Client may elect to have Investment
Advisor's fee deducted from Client's account with Custodian, provided that
Client will be sent an account statement from Custodian indicating the amount of
the fee, the value of the Client's assets on which the fee was based, and the
specific manner in which the fee was calculated at least 10 days prior to the
deduction of such fee. CLIENT IS RESPONSIBLE FOR VERIFYING THE ACCURACY OF THE
FEE CALCULATION AND NOTIFYING CUSTODIAN OF ANY EXCEPTIONS OR OBJECTIONS.
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7. NON-EXCLUSIVE AGREEMENT. Client understands that Investment Advisor
performs, among other things, research and investment advisory services for
other clients. Client recognizes that Investment Advisor may give advice and
take action in the performance of its duties to such clients that may differ
from advice given, or in the timing and nature of action taken, with respect to
Account investments. However, Investment Advisor will attempt in good faith to
allocate investment opportunities to Client's Account over a period of time on a
fair and equitable basis compared to investment opportunities extended to other
clients. Nothing in this Agreement shall be deemed to impose on Investment
Advisor any obligation to purchase or sell, or recommend for purchase or sale,
for the Account any securities or other investments which Investment Advisor may
purchase or sell, or recommend for purchase or sale for the account of any other
client.
8. CONFIDENTIAL RELATIONSHIP AND MARKETING. Except as otherwise provided in
this section, all information and advice furnished by Client or Investment
Advisor to the other, with respect to the Account, or other matters pertaining
to this Agreement, shall be treated as confidential and shall not be disclosed
to third parties except as otherwise required by law or as necessary to carry
out the responsibilities set forth in this Agreement. However, Client consents
to the use of Client's name in Investment Advisor's (or its affiliates') lists
of representative clients solely for the purpose of identifying Client as an
investment advisory client.
9. INSIDER INFORMATION. If, by reason of its investment management
activities, Investment Advisor obtains material non-public information, Client
acknowledges that Investment Advisor will not make any investment decisions
based upon such information.
10. PROXIES AND CERTAIN LEGAL NOTICES. Investment Advisor shall exercise
voting rights incident to any securities held in the Account in accordance with
Investment Advisor's proxy voting policies and procedures in effect from time to
time. Client represents that such delegation of voting rights is duly
authorized. Client agrees to instruct Custodian to forward all proxy materials
and related shareholder communications to the designee provided by Investment
Advisor promptly upon receipt. Investment Advisor shall not be liable with
regard to voting of proxies or other corporate actions if the proxy materials
and related communications are not received in a timely manner. Investment
Advisor will not be required to take any action or render any advice with
respect to securities presently or formerly held in the Account, or the issuers
thereof, which become the subject of any legal proceedings, including
bankruptcies.
11. USE OF BANC ONE HIGH YIELD PARTNERS, LLC. The following provisions
shall apply only if and to the extent that as a result of ratings downgrades or
similar circumstances, the Account holds corporate fixed-income securities and
instruments that are rated below investment grade or unrated securities and
instruments of comparable quality, securities that are traded in the high yield
bond market, or securities that are trading at yields generally indicative of
non-investment grade securities (collectively, "High Yield Assets"). In such
event, Investment Advisor may appoint Banc One High Yield Partners, LLC
("BOHYP") to perform services on behalf of Investment Advisor for the Account in
connection with the retention or orderly liquidation of High Yield Assets,
including, without limitation, research and advice concerning the timing and
method of such liquidation; provided, however, that Investment Advisor will
retain full discretion as to whether and to what extent any or all High Yield
Assets are held or sold in the Account and provided that the Investment
Guidelines are followed. Client authorizes Investment Advisor to provide BOHYP
with such information concerning Client and the Account as is necessary for
BOHYP to provide services in connection with High Yield Assets. With respect to
such
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High Yield Assets, Client grants BOHYP discretionary trading authorization and
authorizes Investment Advisor to appoint BOHYP as agent and attorney-in-fact
with respect to High Yield Assets on behalf of the Account. The appointment of
BOHYP under this section shall not relieve Investment Advisor of any of its
obligations under this Agreement.
12. STANDARD OF CARE. Investment Advisor shall perform its duties hereunder
with that standard of care which a professional investment advisor engaged in
the securities or investment advisory industry, and having professional
expertise in financial and securities transactions and investment management
would observe in these affairs ("Standard of Care").
Client understands that the investment decisions made for Client and the
assets in the Account by Investment Advisor are subject to various market,
currency, economic, political and business risks, and that those investment
decisions will not always be profitable. Further, Client acknowledges and agrees
that the value of investments made for the Account may go up as well as down,
and are not guaranteed, and Investment Advisor will not be liable for its
failure to achieve any investment performance targets or goals set forth in the
Investment Guidelines or otherwise articulated by Client.
13. LIMITATION OF LIABILITY. Client agrees that Investment Advisor shall
not be liable for (a) any loss suffered by reason of any investment decision,
recommendation, or other action taken or omitted in good faith and in accordance
with the Standard of Care described above; (b) any loss arising from Investment
Advisor's adherence to Client's instructions or its compliance with the
Investment Guidelines; or (c) any act or failure to act by Custodian, by any
broker or dealer to which Investment Advisor directs transactions for the
Account, or by any other third party.
Securities laws impose liabilities under certain circumstances on
investment advisors and other regulated persons even when they act in good
faith, and therefore nothing in this Agreement shall in any way constitute a
waiver or limitation of any rights which Client may have under federal or state
securities laws.
14. INVESTMENT ADVISOR REPRESENTATIONS. Investment Advisor represents that
it is a registered investment adviser under the Investment Advisers Act of 1940,
as amended.
15. CLIENT REPRESENTATIONS. Client represents that: (a) it has received
Part II of Investment Advisor's current Form ADV more than 48 hours prior to
entering into this Agreement; (b) it is duly authorized to negotiate the terms
of this Agreement, including fees, and to enter into (or renew) and perform this
Agreement; and (c) the signatory on behalf of Client is duly authorized by
appropriate action to execute this Agreement. Client shall furnish to Investment
Advisor certified copies of appointments or designations setting forth the
names, titles and authorities of the individuals who are authorized to act on
behalf of Client with respect to the Account and this Agreement, and Investment
Advisor shall be entitled to rely upon such information until it receives
written notice of a change in such appointments or designations. Client
undertakes to advise Investment Advisor of any event that might affect the
validity of any of the above representations.
16. FORCE MAJEURE. If war, natural disasters, acts of terrorism, loss of
utilities, government restrictions, trading halts, exchange or market rulings,
extraordinary market volatility or exchange conditions, or any other conditions
beyond Investment Advisor's control temporarily make it impossible for
Investment Advisor to fully perform its duties under this Agreement, then the
principles of force majeure will apply and the rights and
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obligations of the parties will be temporarily suspended during the force
majeure period, to the extent performance is reasonably affected thereby.
17. NOTICES. All written communication to each party pursuant to this
Agreement shall be sent to the party at the address set forth below unless that
party designates otherwise in writing. Such communications shall be deemed given
if delivered personally, if mailed (by registered or certified mail, return
receipt requested and postage prepaid), if sent by overnight courier service for
next business day delivery, by facsimile transmission, or by electronic
transmittal with return receipt, to the appropriate address for each party. Such
communications shall be effective immediately (if delivered in person or by
confirmed facsimile), upon the date acknowledged to have been received in return
receipt, or upon the next business day (if sent by overnight courier service).
TO CLIENT:
Please see signature block.
TO INVESTMENT ADVISOR:
FOR NOTICES REQUIRED TO BE GIVEN UNDER THIS AGREEMENT:
Banc One Investment Advisors Corporation
Attn: Sr. Managing Director, Institutional Asset Management
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FOR INSTRUCTIONS WITH RESPECT TO SECURITIES TRANSACTIONS:
Contact the Account's designated relationship manager.
18. PROHIBITION AGAINST ASSIGNMENT. In accordance with Section 205(a)(2) of
the Investment Advisers Act of 1940, this Agreement is not assignable by
Investment Advisor without the prior consent of Client.
19. TERMINATION AND SURVIVAL. This Agreement may be terminated with or
without cause upon not less than thirty (30) days written notice by either party
to the other (unless the parties mutually agree to any shorter period of
notice). Such termination will not, however, affect the liabilities or
obligations of the parties under this Agreement arising from transactions
initiated prior to such termination. Upon termination of this Agreement,
Investment Advisor is under no obligation to recommend any action with regard to
the securities or other investments held in the Account. The provisions relating
to the following rights and obligations of the parties shall survive the
termination, cancellation, expiration and/or rescission of this Agreement:
Confidential Relationship and Marketing, Standard of Care, Limitation of
Liability, Waiver of Jury Trial and Termination and Survival.
20. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement represents the entire
agreement between the parties with respect to the subject matter hereof. Except
as expressly addressed elsewhere, the terms of this Agreement may be amended
from time to time only by mutual written agreement of the parties to this
Agreement.
21. CROSS TRANSACTIONS. Investment Advisor may, from time to time, act on
behalf of Client in buying or selling a particular security in Client's Account,
and act as Investment Advisor for another client on the other side of the
transaction. Investment Advisor will not be compensated for its role as agent in
the transaction. Client acknowledges and authorizes Investment Advisor to
perform such cross transactions. Client
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may revoke, at any time in writing to Investment Advisor, its consent to such
cross transactions.
22. GOVERNING LAW AND SEVERABILITY. This Agreement will be governed and
interpreted by the laws of the State of Michigan without reference to the
conflict of laws rules, except as superceded or pre-empted by applicable federal
law. If any provision of this Agreement is declared or found to be illegal,
unenforceable or void, then both parties shall be relieved of all obligations
arising under such provision, but only to the extent that such provision is
illegal, unenforceable or void, it being the intent and agreement of the parties
that this Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its intent
or, if that is not possible, by substituting another provision that is legal and
enforceable and achieves the same objective.
23. WAIVER AND COUNTERPARTS. The waiver by either party of a breach of any
provision or condition of this Agreement shall not operate, or be construed, as
a waiver of any other breach or an assent to a failure to comply with a
condition or provision. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which shall constitute one and
same instrument.
24. USA PATRIOT ACT NOTIFICATION. In order to comply with the USA PATRIOT
Act of 2001 ("PATRIOT Act") and federal regulations, Client shall furnish
certain identifying information requested by Investment Advisor regarding: (a)
the correct legal name of Client, (b) Client's street address which shall be a
principal place of business, local office, or other physical location, and (c)
Client's Identification Number (as defined below). For purposes of this section,
Identification Number shall mean (a) for a US entity, a taxpayer identification
number ("TIN") or employer identification number ("EIN") and (b) for a non- US
entity, a TIN or EIN, or alternative government-issued documentation certifying
the existence of the business or enterprise. "TIN applied for" will not be
accepted as a valid Identification Number. Investment Advisor will then, as
required by the PATRIOT Act, verify the identifying information and retain a
description of such verification. As part of this process, Investment Advisor
may copy the documentation that Client provides, contact third parties to verify
this information, compare this information to lists supplied by the federal
government and retain this information in accordance with applicable law.
Investment Advisor may not waive these requirements and may not open the Account
until such time as the information required by this section has been provided.
In addition, Investment Advisor may immediately terminate this Agreement or any
other agreement with Client and close the Account and any related accounts if
(i) Investment Advisor is not able to verify the identifying information
concerning Client within a reasonable period of time after the Account is open
or (ii) Client appears to have provided misleading or incomplete information or
failed to disclose material information in response to a request from Investment
Advisor under this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers or agents to become effective as of
the day and year first above written.
NORTH POINTE CASUALTY INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
EIN: ________________________
AGREED AND ACCEPTED
BANC ONE INVESTMENT ADVISORS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Managing Director
Date: 6/16/04
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EXHIBIT A
INVESTMENT GUIDELINES
See attached
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