Loading...
HomeMy WebLinkAboutSnow Capital Management LP Investment Agreement -2007 08 28 DEFINED BENEFIT PLAN AND TRUST FOR EMPLOYEES OF THE CITY OF WINTER SPRINGS INVESTMENT MANAGEMENT AGREEMENT WITH SNOW CAPITAL MANAGEMENT L.P. 1"t' THIS AGREEMENT is made and entered into as of the -Z~ day of t1'V6U.n~ 2007, by and between the Board of Trustees of the Defined Benefit Plan and Trust for Employees of the City of Winter Springs (hereinafter the "Board"), and Snow Capital Management L.P. (hereinafter the "Investment Manager"). WIT N E SSE T H: WHEREAS, the City of Winter Springs, Florida, has established and continues to maintain the Defined Benefit Plan and Trust for Employees of the City of Winter Springs, (the "Plan"), and the pension fund (the "Fund") established as part of the Plan, for the purposes of providing retirement benefits to certain eligible employees as described in the Plan; and WHEREAS, Section 15.04 of the Defined Benefit Plan and Trust for Employees of the City of Winter Springs, provides that in carrying out its investment duties, the Board shall engage the services of an Investment Manager or Managers; and WHEREAS, the Board of Trustees, acting pursuant to the power vested in it, deems it necessary and prudent to appoint the Investment Manager as an investment manager of the Fund; and WHEREAS, the Board has determined that it is in the best interest of the Defined Benefit Plan and Trust for Employees of the City of Winter Springs and Plan members to enter into a contract with Investment Manager for investment management services; and WHEREAS, Investment Manager desires to serve as an investment manager to the Board, in accordance with the terms set forth below; NOW, THEREFORE, in consideration of the mutual promises and benefits set forth herein, the Board of Trustees and Investment Manager agree as follows: 1. Appointment of Investment Manager. Effective on the ~<l"''' day of !tVG.vS'r 2007, and until this appointment is terminated pursuant to Paragraph 13 hereof, the Board, pursuant to the power and authority granted by the Plan, for and on behalf of the Fund, hereby appoints the Investment Manager as an investment manager with respect to those assets of the Fund which are specifically allocated by the Board for management hereunder. (Such assets, together with all investments and reinvestments of, and all income earned by, such assets, are hereinafter collectively referred to as the "Account.") The Manager hereby acknowledges and accepts such appointment. 2. Representation by the Board. The Board hereby represents and confirms that the Plan is made up of moneys of a plan or governmental unit described in Section 818(a)(6) of the Internal Revenue Code of 1986, as amended (the "Code"), that the Fund is a tax-exempt fund pursuant to Section 501 (a) of the Code, that the Board, for the purpose of this Agreement, has authorized the commingling of its assets with assets of other trusts through the medium of collective or pooled investments trusts as described in Section 408(b )(8) of ERISA, and the Board hereby agrees that, to the extent of its equitable share in such collective investment trust, said collective investment trust shall be deemed a part of the Fund. The Board further agrees that the Investment Manager's investment policy, including its proxy voting policy, as amended from time to time, for the collective investment trust shall be deemed a part of the investment and proxy voting policy of the Fund. 3. Discretionary Authority. (a) Subject to the investment objectives and restrictions set forth in Schedule A attached hereto and made a part hereof, as the same may be amended from time to time, the Board hereby expressly grants to the Investment Manager full and complete discretion and authority with respect to the management of the Account including, without implied limitation, authority to purchase, sell, exchange, convert, trade and generally to deal in securities and other property in the Account for the account and at the risk of, and in the name of, the Fund and generally to perform any other act necessary to enable the Investment Manager to carry out its obligations under this Agreement. Without limiting the generality of the foregoing, the Investment Manager is specifically authorized to, and the Board hereby acknowledges that the Investment Manager may, invest all of any part of the Account in any of the collective investment funds which the Investment Manager maintains for tax-qualified employee benefit plans. Except as otherwise required by applicable law or regulations, the Investment Manager shall not be obligated to give prior notice of, or to consult with the Board or any other person regarding, the exercise of its authority hereunder. (b) The Investment Manager shall have absolute authority and discretion to place orders for security transactions on behalf of the Account with such brokers or dealers as the Investment Manager shall select in its sole discretion. The Investment Manager agrees to use reasonable efforts to obtain the most favorable price and execution for the Fund in respect to securities transactions placed for the account of the Fund by the Investment Manager. The Investment Manager shall not be responsible for any acts or omissions by any brokers or dealers, provided that the Investment Manager is not negligent in the selection of such brokers or dealers. Brokers or dealers may be selected who provide brokerage and/or research services to the Account and/or other accounts over which the Investment Manager or its affiliates exercise investment discretion. Brokers or dealers who execute portfolio transactions on behalf of the Account may receive commissions which are in excess of the amount of commissions other brokers or dealers would have charged for effecting such transactions. In order to cause the Account 2 to pay such higher commissions, the Investment Manager must determine in good faith that such commissions are reasonable in relation to the value of the brokerage and/or research services provided by such executing brokers or dealers viewed in terms of a particular transaction or the Investment Manager's overall responsibilities to the Account or its other discretionary clients. (c) The Investment Manager is hereby authorized to vote upon any stock or other securities of any corporation at any time in the Account or otherwise consent to or request any action on the part of such corporation, and to participate in reorganizations, recapitalizations, consolidations, mergers, and similar transactions with respect to such stocks or other securities; and generally to exercise any of the powers of an owner with respect to stocks or other securities in the Account which the Investment Manager deems to be for the best interests of the Fund to exercise. The Investment Manager shall be under no obligation to provide proxy or any related material in connection with any such stock or other security to the Board or to any other party. (d) The Board expressly understands and agrees that any such collective fund may provide for the lending of its securities and that any compensation that is received by the Investment Manager is separate from any compensation of the Investment Manager hereunder. (e) In carrying out its discretionary authority and duties as set forth in this Agreement, the Investment Manager acknowledges that it is a fiduciary with respect to the Fund, and that all such activities shall be conducted in a manner consistent with the Investment Manager's fiduciary and other obligations hereunder and under Part VII, Chapter 112, Florida Statutes, and under the applicable provisions of the Employee Retirement Income Security Act of 1974 (ERISA). 4. Custody of Securities. The securities and other assets in the Account have been deposited with the Investment Manager and the Investment Manager shall be responsible for the custody of such securities and other assets; provided, however, that the Investment Manager may transfer custody of part or all of the assets in the Account to an agent or agents selected by the Investment Manager in its sole discretion to act as custodian or subcustodian on its behalf. 5. Fee Schedule. For services under this Agreement, the Investment Manager shall be entitled to receive a fee in accordance with the Schedule of Charges labeled Exhibit B and attached hereto. For the purposes of this Paragraph 5, the monthly determination of the value of the assets in the Account shall be made by the Investment Manager in good faith by applying the same valuation procedures and methods as it uniformly uses for the valuation of assets in all of the investment accounts for which the Investment Manager provides investment management services. 6. Investment Policy. The investment policy for the Account is set forth in Exhibit A attached hereto. The Investment Manager shall manage the Account in accordance with 3 such policy and shall incur no liability or other responsibility on account of any damage or loss which may result from its acting in accordance with said policy. However, the Plan's overall investment objectives and guidelines may be amended by the Board from time to time; provided, however, that any such amendment shall not become effective and binding upon the Investment Manager until at least thirty (30) days after the Investment Manager has received written notice thereof. 7. Reports. The Investment Manager will provide the Board with an appraisal of the Account as of the last day of each calendar quarter on which the New York Stock Exchange is open, and shall furnish such additional reports and information as reasonably may be requested by the Board. The Board hereby agrees to furnish the Investment Manager with such information, authorizations, and documentation as the Investment Manager may require from time to time to enable it to carry out its obligations under this Agreement. 8. Liability and Indemnity. (a) The Investment Manager shall be responsible only for the management of the Account in accordance with the investment objectives and other limitations and guidelines, if any, as set forth in Exhibit A, as the same may be amended from time to time. The Investment Manager shall have no responsibility whatsoever and shall incur no liability on account of (a) the selection of such investment objectives and other limitations and guidelines, including the determination that such objectives, limitations and guidelines are consistent with the requirements of applicable law as applied to the Fund, (b) the management of any other assets of the Fund even if such assets are wrongfully comingled, or (c) the administration of the Plan. Unless the Investment Manager has not acted prudently or has otherwise violated the provisions of applicable law, the Investment Manager shall not be subject to any liability to the Fund, the Board, or to any other person, firm, or organization, for any act or omission of itself or of any other person, firm, or organization in the course of, or connected with, its obligations under this Agreement. No warranty is given by the Investment Manager as to the performance or profitability of the Investment Assets. (b) The Board shall reimburse, indemnify and hold harmless Investment Manager, individually and as investment manager, of and from, any and all expenses, losses, damages, liabilities, demands, excise taxes, charges and claims of any kind or nature (including without limitation, attorneys' fees and expenses) whatsoever, resulting or arising from its acts, omissions, transactions, duties, obligations, or responsibilities as investment manager, except with respect to any such act, omission, transaction, duty, obligation or responsibility constituting gross negligence or malfeasance on the part of Investment Manager, or a violation of applicable law by Investment Manager. (c) The Investment Manager shall reimburse, indemnify and hold harmless the Board and Fund, of and from, any and all expenses, losses, damages, liabilities, demands, excise taxes, charges and claims of any kind or nature (including without limitation, attorneys' fees and expenses) whatsoever, resulting or arising from its acts, omissions, transactions, duties, obligations, or responsibilities as investment manager, except with 4 respect to any such act, omISSIOn, transaction, duty, obligation or responsibility constituting gross negligence or malfeasance on the part of the Board or Fund, or a violation of applicable law by the Board or Fund. (d) Federal and state securities laws may impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the Board may have under any applicable laws. (e) This section shall survive the termination of this Agreement. 9. Services to Other Clients. It is understood that the Investment Manager and its affiliates perform investment advisory services for various clients. The Board agrees that the Investment Manager may give advice and take action with respect to any of its other clients which may differ from the advice given or the timing or nature of action taken with respect to the Account, so long as it is the Investment Manager's policy, to the extent practical, to allocate investment opportunities to the Account over a period of time on a fair and equitable basis relative to other clients. It is understood that the Investment Manager shall not have any obligation to purchase or sell, or to recommend for purchase or sale, for the Account any security which its principals, affiliates, or employees may purchase or sell for its or their own accounts or for the account of any other client, if in the opinion of the Investment Manager such transaction or investment appears unsuitable, impractical, or undesirable for the Account. 10. Authority. Each of the parties to this Agreement hereby represents that it is duly authorized and empowered to execute, deliver, and perform this Agreement, that such action does not conflict with or violate any provision of law, rule or regulation, contract, deed of trust, or other instrument to which it is a party or to which any of its property is subject, and that this Agreement is a valid and binding obligation enforceable in accordance with its terms. 11. Assignability. Neither party to this Agreement may assign this Agreement without first obtaining the written consent of the other party hereto. 12. Severability. If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provisions shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon and shall not impair the enforceability of any other provision of this Agreement. 13. Termination. This Agreement may be terminated by either party hereto upon thirty (30) days' written notice to the other party. Upon any such termination, the Investment Manager shall deliver all of the assets in the Account to the Trustee(s) of the Fund. Such termination shall be without payment of any penalty and without liability of 5 either party to the other, except that the Fund shall remain liable for any accrued but unpaid compensation due to the Investment Manager. 14. Notices. Unless otherwise permitted herein, all notices, instructions, and advice with respect to the security transactions or any other matters contemplated by this Agreement shall be deemed given when received in writing by the: Investment Manager: Snow Capital Management L.P. 2100 Georgetowne Dr., Suite 400 Sewickley, PA, 15143 Attn: Carl Vuono, Chief Operating Officer Board: City of Winter Springs Employees' Retirement Fund 2450 Winter Springs Blvd., Suite 200 Winter Springs, FL 33020-6620 or at such other address or addresses as shall be specified to the other party in writing. The Investment Manager and the Board each may rely upon any notice from the other. 15. Governing Law. This Agreement shall be construed, administered, and enforced in accordance with applicable federal law and, to the extent permitted by such law, by the laws of the State of Florida. Venue for any dispute concerning the interpretation or application of this Agreement shall be the state of Florida, 18th Judicial Circuit, in and for Seminole County, Florida. 16. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original for all purposes, including judicial proof of the terms hereof, and all of which together shall constitute and be deemed one and the same agreement. 17. Force Majeure. Notwithstanding anything in this Agreement to the contrary, Investment Manager shall not be responsible or liable for its failure to perform under this Agreement or for any losses to the Account resulting from any event beyond the reasonable control of Investment Manager or its agents, including but not limited to, nationalization, expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure; or enactment, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Account's property; or the breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or regulation of any banking or securities industry including changes in market rules and market conditions affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution; or acts of God, or any other similar event. This Section shall survive the termination of this Agreement. 6 IN WITNESS WHEREOF, the parties hereto have executed this document as of the day and year set forth above. BOARD OF TRUSTEES OF THE DEFINED BENEFIT PLAN AND TRUST FOR EMPLOYEES OF THE CITY OF WINTER SPRINGS BY: /( 0fAJ.ttR tJ 111 Lr~ SIGNATURE TIT~ ~ SNOW CAP~MANAGEMENT L.P. BY: &~ !~ SIGNATURE et../'e lore .-Jj ol-f2~{:'" or TITLE 7 EXHIBIT A EXHIBIT B Fee Schedule 80 basis points (Annual Rate) Such fee shall be payable quarterly in arrears and shall be computed upon the market value of the total assets covered by this Agreement as of the last day of the preceding quarter end. If the services to be rendered hereunder shall commence on a day other than the first day of the above months or terminate other than on the last day of December, March, June, or September, the above fee shall be fairly and equitably prorated. Total assets shall mean the sum of the values taken at market of all the Investment Assets. If during the quarter assets are added or deleted by the Client and made subject to or removed from management of the Investment Manager, then the above fee shall be equitably prorated with respect to such added or deleted assets. In the event of termination, total assets for fee purposes shall mean the account value at the date of notice of termination. The fee is guaranteed not to increase for a period of three years from this date of this agreement.