Transcription

FINALJune 2016Sample Investment Management AgreementUpdated and Approved by the PMAC Practices & Standards Committee and Borden Ladner Gervais LLPThis sample investment management agreement (“IMA”) is intended only to provide generalguidance to Portfolio Management Association of Canada (“PMAC”) members and is not intended tobe and should not be construed or relied upon as legal or other advice. PMAC assumes no liability byproviding this sample IMA to its members or any other person or entity. Sections of this IMA may ormay not apply in any particular situation and each clause should be reviewed with care to determineits applicability. This agreement is designed to be used for both institutional and individual investors– but care should be taken to ensure appropriateness to the specific client (including type of client). Itis not intended as an IMA to be used in connection with advising an investment fund. The draftreflects the requirements under NI 31-103 that are applicable to registered advisers. It should beconformed with the account opening documents that the PMAC member uses to collect KYC andinformation necessary to prepare the Investment Policy Statement (as applicable).[Date]To:Dear Sir/Mesdames;Re:Investment Management Agreement (the “Agreement”) between [Full legal name ofPMAC member] (the “Manager”) and (the “Client”)[– Investment Management Account No: ]The following are the terms under which the Client appoints the Manager as discretionaryinvestment manager of the Client’s account with the Manager (the “Account”). The Client hasappointed a custodian of the Account (the “Custodian”) and has provided the name and contactdetails of the Custodian to the Manager.1.DATE OF APPOINTMENT1.1This appointment is effective as of the date of this Agreement (the “Effective Date”).2.ACCOUNT2.1The Account is or will be registered in the name of the Client as the Client confirms tothe Manager in the account documentation executed by the Client, or confirms in writingto the Manager, from time to time.

Client NameDatePage 22.2With respect to all matters contemplated by this Agreement, the Client confirms that theManager may receive and act on instructions from the persons named by the Client inwriting in the account documentation executed by the Client, until the Manager is inreceipt of the Client’s written instructions to the contrary.2.3[If Individual Client] Where the Account is registered in the name of more than oneindividual, the Manager is entitled to accept instructions from any one of such individualsor his or her legal representative without notice to, or the consent of, any other individual.3.CONFIDENTIALITY3.1The Manager shall treat all information provided to it by the Client regarding the Clientand the Account as confidential, and will not disclose such information to third partiesunless the Client has provided written permission to the Manager to do so, or unless theManager is, by law, required or permitted to do so. Notwithstanding this section 3.1, theManager may disclose such information to employees or agents of the Manager that needto know such information, provided that the Manager shall ensure that such employees oragents are subject to the same standard of confidentiality imposed on the Manager. TheClient shall keep confidential any information that it receives from the Managerregarding the Manager’s investment strategies and trading practices, except as approvedin writing by the Manager, or required by law.4.AUTHORITY4.1The Manager will manage the Account with complete discretion, in accordance with theinvestment policy statement attached as Schedule to this agreement which, among otherthings, outlines the Client’s investment needs and objectives, financial circumstances andrisk tolerance, as well as the strategies the Manager may use, or restrictions the Managerwill adhere to, in managing the Account, and any amendments thereto that have beenacknowledged in writing by both the Manager and the Client (collectively, the“Investment Policy”). Without limiting the authority granted above, the Manager isauthorized in managing the Account to:(a)invest, reinvest, maintain in cash or cash equivalents, acquire, dispose of andotherwise manage, all or any part of the assets in the Account;(b)unless otherwise instructed by the Client, select and place orders with dealers andbrokers to purchase, sell and otherwise trade in or deal with assets in the Accountand negotiate the applicable terms, commissions and charges with such dealersand brokers;(c)instruct the Custodian to settle such trades as are directed by the Manager;(d)unless otherwise directed by the Client, instruct the Custodian (i) as to the votingof all proxies received with respect to securities of the Account and execute

Client NameDatePage 3proxies of voting instruction forms relating to such voting all in accordance withthe Manager’s policies on voting proxies, and (ii) to take such actions andexercise all such rights and powers incidental or relating to ownership ofsecurities in the Account as require the exercise of discretion and may beexercised by any owner of such securities;(e)retain third parties, which may include affiliates of the Manager, to perform anyof the duties or obligations of the Manager under this Agreement; and(f)perform any and all other acts as may be in its judgment necessary or appropriatefor the management of the Account, or are necessary to enable the Manager tocarry out its obligations under this Agreement without obtaining the priorapproval or direction of the Client.5.NON-EXCLUSIVITY5.1The services provided by the Manager to the Client are not exclusive. Nothing in thisAgreement shall in any way restrict the right of the Manager to provide investmentmanagement or other services for any other person or entity or to act for its own account,and the provision of such services for others or for its own account shall not violate orgive rise to any duty or obligation to the Client.6.INVESTMENT FUNDS6.1Investment funds (“Funds”) may be used by the Manager to implement all or part of theInvestment Policy. This may include Funds that are managed by the Manager. TheClient consents to the Manager investing some or all of the assets in the Account insecurities of Funds, including Funds managed by the Manager, as the Manager deemsappropriate and suitable for the Account and the Client.7.FEES7.1Fees for the Manager’s investment management services (“Fees”) will be calculated inaccordance with the attached Schedule , which may be amended with days writtennotice.7.2Fees are subject to Goods and Services Tax and any other taxes which may be applicable.7.3In addition to the Fees, the Client acknowledges that if the Account invests in Funds,certain management fees and operating expenses and other costs, inclusive of Goods andServices Tax, are paid by the Funds. If the Account invests in Funds managed by theManager, the Manager will ensure that there is no duplication of fees payable by theClient for the Account and for the investment by the Account in those Funds, for thesame services.

Client NameDatePage 47.4The Manager may, in its sole discretion, redeem such number of securities of Funds, ormay sell other assets in the Account as may be required to pay the Fees. The Client shallbe liable to pay to the Manager any unpaid Fees not satisfied by way of redemption ofsecurities of Funds or the sale or redemption of other assets, as outlined in this paragraph.8.STANDARD OF CARE8.1The Manager shall, in carrying out its obligations under this Agreement, act honestly, ingood faith and in the best interests of the Client and in connection therewith shallexercise the degree of care, diligence and skill that a reasonably prudent portfoliomanager would exercise in similar circumstances. Notwithstanding the foregoing, theClient understands and agrees that the Manager does not represent and cannot guaranteeperformance results for the Account.8.2The Client understands that there are risks attached to the Manager’s investment of theAccount in securities, including various market, currency, economic, political andbusiness risks. The Manager will not be liable to the Client for any loss that the Clientmay suffer as a result of the Manager’s good faith decisions or actions where theManager exercises the care, diligence and skill expected of a reasonably prudent portfoliomanager. The specific risks that apply to the Account are outlined in the InvestmentPolicy Statement attached as Schedule .9.INDEMNITY9.1The Client will hold harmless and indemnify the Manager, its directors, officers,employees and agents against any and all claims, losses, damages, liabilities andexpenses which the Manager may incur if and to the extent that such loss is caused by theClient’s or the Client’s designees’ own actions or omissions or by any inaccuracy orbreach by the Client of any of the Client’s representations, warranties or covenantshereunder or in the documentation associated with the Account, as the same may beupdated from time to time.10.REPORTING10.1The Manager will provide to the Client and/or to such other person(s) as directed by theClient in writing, account statements as required by applicable laws on an annual orcalendar quarterly basis, unless the Client requests the Manager to send accountstatements on a monthly basis. The Manager will also provide all reporting required forthe preparation of income tax returns on a timely basis to the Client and/or to such otherperson(s) as directed by the Client in writing. The statements regarding the Account maybe consolidated with statements for other accounts of the Client with the Manager and theClient hereby consents to receiving such consolidated statements. The Client may directthe Manager in writing, to provide consolidated reporting about the Account andspecified other accounts of other clients of the Manager, but acknowledges that the

Client NameDatePage 5Manager is required by applicable laws to send the Client statements of account about theAccount in addition to the consolidated statements.10.2The contents of every account statement or other communication sent to the Client by theManager shall be deemed to have been acknowledged as correct, approved and consentedto by the Client unless the Manager receives written notice to the contrary within 45 daysafter it was sent to the Client.11.JOINT ACCOUNTS [for individual clients]11.1If the Client has opened the account in the names of more than one person (the Account),whether as joint tenants with rights of survivorship (other than in the province ofQuébec), or as “tenants in common” or as held jointly by such persons (each an Ownerand collectively, the Owners), then the following terms and conditions shall apply:(a)The Manager may accept and act upon instructions received from any Owner withrespect to the operation of the Account as fully and completely as if such Owneralone was interested in the Account. Acceptance of such instructions and theimplementation thereof shall be binding upon all of the Owners of the Account.Despite the foregoing, the Manager shall have the right at any time, in its solediscretion, to require that it be authorized by all Owners of the Account beforeacting upon any instructions received by it.(b)The Owners hereby jointly and severally (in Québec, solidarily) indemnify andhold the Manager harmless against any loss, claim, damages, liability andexpenses of any kind whatsoever arising out of the operation of the Account andto promptly pay to the Manager on demand, any and all amounts owing by theOwners to the Manager. The cash, securities and other property held in theAccount shall be subject to a lien in favour of the Manager as security for thedischarge of all obligations of the Owners to the Manager and the Manager has theirrevocable authority to deal with the assets in the Account in such manner as it inits sole discretion deems appropriate to satisfy all obligations owing to it.(c)The Manager may deliver securities, money or other property relating to theAccount to any Owner without attracting any liability and without being requiredto provide notice thereof to any of the other Owners. The Manager reserves theright to refuse to make delivery or payment at any time except to the Ownersjointly.(d)All statements of account, notice or other communications of any kind in respectof the Account may be sent by the Manager to any Owner without being requiredto provide copies thereof to any of the other Owners. All such communicationstransmitted in such manner shall be binding upon each of the Owners.

Client NameDatePage 6(e)(f)(g)Where the Account has been established for Owners as “tenants in common” or asheld jointly by the Owners (including in the province of Québec):(i)unless otherwise designated in writing by all of the Owners to theManager, the Owners shall be deemed to be beneficial owners of theassets in the Account in equal shares; and(ii)following the death of any of them, the continued conduct of the Accountshall be upon the same terms and conditions as contained in thisAgreement with beneficial ownership in the share of the deceased Ownervesting in his or her beneficiaries.Where the Account has been established for the Owners as joint tenants withrights of survivorship (in provinces other than Québec), ownership and control ofthe assets in the Account vests beneficially in all of them. Upon the death of anOwner, and provided proof of death is furnished to the satisfaction of the Manager(i)beneficial ownership and control of the assets in the Account shall fromthe date of such death vest solely in the remaining surviving Owner/s; and(ii)the continued conduct of the Account shall be by the remaining Owners, ifapplicable, as joint tenants with rights of survivorship upon the same termsand conditions as contained in this Agreement.The Owners acknowledge that they have not received or relied upon the Managerfor any legal or tax advice in regard to the Account or the manner in whichownership therein has been established or with respect to the operation thereof.The Owners further confirm that they have obtained independent professionallegal and tax advice to ensure that their respective rights, needs and objectives aresatisfied.11.2The Owners acknowledge that no other person/s may be appointed as agent/s, attorney/sor substitute/s on the Account for the Owners, nor shall anyone else be authorized toprovide the Manager with instructions in respect of the operation of the Account on theirbehalf.12.RELATIONSHIP DISCLOSURE12.1Schedule to this Agreement contains summary information about certain matters aboutthe Manager’s business and affairs relating to its management of the Account, includingany conflicts of interest that the Manager may have in managing the Account. The Clientacknowledges that it has received the information in Schedule and consents to theManager’s management of the Account in accordance with the policies and mattersoutlined in Schedule :

Client NameDatePage 7(a)The Manager’s policies regarding the use of the brokerage commissions arisingfrom transactions within the Account;(b)The Manager’s policies regarding fair allocation of investment opportunitiesamongst clients, the Account, and any other discretionary accounts, including anyFunds managed by the Manager;(c)The “related issuer” status between the Manager and any Funds it manages andthe material relationships between the Manager and other registrants insofar asthose relationships affect the Account;(d)The details of any referral arrangements relating to the Account;(e)The identity of any issuers in which the directors and officers of the Manager orof any associate of the Manager is a partner, officer or director.12.2In accordance with applicable laws, as applicable, the Client acknowledges and consentsto the Manager making investments for the Account in the issuers, or using the servicesof related registrants, as are noted in Schedule .12.3Attached as Schedule , is a copy of the Manager’s Privacy Policy. By signing thisAgreement, the Client consents to the collection, use and disclosure of the Client’spersonal information in accordance with such policy.13.REPRESENTATIONS, WARRANTIES AND COVENANTS13.1The Client hereby represents and warrants to the Manager and acknowledges itscovenants that:(a)The Client has the legal power to enter into the Agreement without notice to, orconsent of, any party, and entering into and complying with this Agreement willnot result in the breach of any term or condition of any agreement that the Clientis a party to;(b)The Client has full power and authority under the provisions of applicabledocuments, instruments and legislation governing the assets in the Account andthe Client to execute, deliver and perform this Agreement on behalf of itself andthe contributions to the Account, and the transactions contemplated by thisAgreement are duly authorized by the Client, comply with applicable policies,resolutions, agreements or legislation or other supporting documents and, whenentered, will be legal, valid and binding obligations of the Client and thecontributions to the Account and are consistent with and permissible for the Clientand the contributions to the Account, as applicable;(c)No option, lien, charge, security or encumbrance exists or will, due to any act oromission of the Client, exist over any of the contributions made to the Account;

Client NameDatePage 8(d)The Client is not an insider of any reporting issuer or other issuer whose securitiesare publicly traded (as those terms are defined under applicable securitieslegislation) except as set out in Schedule hereto. The Client shall provide to theManager from time to time, a current list of public companies in which the Clientowns, directly or indirectly, more than 10 percent of any class of equity securitiesor is otherwise an insider;(e)There are no investment restrictions applicable to the Account imposed by law orby the Client except as set forth in the Investment Policy. The Clientacknowledges that the Manager will be relying on, and the Client herebyrepresents the accuracy and completeness of, the information provided in theInvestment Policy as the Client acknowledges that the Investment Policy will beused in assessing the suitability of the trades made by the Manager on behalf ofthe Account. The Client will notify the Manager if any of the informationcontained in the Investment Policy or in the documentation signed by the Clientrelating to the Account changes in any material respect;(f)If the Client is not an individual - The Client is validly existing under the laws of[insert name of appropriate province] and Canada as may be applicable and hasall necessary power, authority and capacity to enter into this Agreement, to carryout its obligations under this Agreement, to own its assets and to carry on itsbusiness as presently conducted;(g)The execution and delivery of this Agreement and the performance of theobligations contemplated by this Agreement have been duly authorized by allnecessary action on the part of Client and this Agreement constitutes a valid andbinding obligation of the Client enforceable against it in accordance with itsterms;(h)The Client is not a party to, bound by, affected by, or subject to any indenture,mortgage, lease, agreement, obligation, instrument, charter, by-law, order,judgement, decree, licence, law (including regulations) or governmentalauthorization that would be violated, breached by, or under which default wouldoccur as a result of the execution and delivery of, or performance of obligationsunder, this Agreement;(i)The Client acknowledges that the Manager is required by applicable laws, whichinclude tax, anti-money laundering, anti-terrorist financing and securities laws, todetermine the identity and reputation of the Client and to collect certaininformation concerning the Client, including the nature of its business and theidentity of those who are beneficial owners of, or exercises control or directionover, more than 10 percent of the voting rights attached to the outstanding votingsecurities of the Client (if the Client is a corporation) or who exercises controlover the affairs of the Client (if the Client is a partnership or trust) and the countryof residence of the Client. The Manager may request additional information from

Client NameDatePage 9time to time and the Client shall provide all such information so requested. TheClient hereby represents the accuracy of the information provided in Schedule and will advise the Manager should any of the information contained in Schedule change in any material respect;13.2(j)The Client will provide such additional documentation and information as theManager may reasonably request from time to time;(k)The Client will advise the Manager of any changes to the information the Clientprovides to the Manager to open or maintain the Account as soon as the changesoccur. This includes, but is not limited to, changes to address, marital status,financial and employment information, investment objectives and risk toleranceor if the Client or anyone who has trading authority for, control over, a financialinterest in, and/or a beneficial ownership in the Account is or becomes (i) aninsider, significant shareholder or employee of a publicly traded company; or (ii)a securities professional. For the purposes of this Agreement, a securitiesprofessional is a partner, director or employee of a firm that is a member of any ofthe following (i) a stock exchange; (ii) the Mutual Fund Dealers Association ofCanada (MFDA); and/or (iii) the Investment Industry Regulatory Organization ofCanada (IIROC). The Client will complete and sign in a timely manner anydocumentation required by the Manager in connection with these changes.The Manager represents and warrants that:(a)The Manager performs investment advisory services for various clients and theinvestment funds (including the Funds) that it manages. The Manager makesinvestment decisions for each client’s account and for each Fund dependent on thecircumstances, investment objectives and guidelines of the specific client or theFund. The Manager’s policy and practice is not to intentionally favour ordisfavour any client, class of clients, or investment fund in the allocation ofinvestment opportunities so that over a period of time, such opportunities will beallocated among clients and Funds on a fair basis.(b)The Manager, as required by applicable securities laws, will ensure that allinvestments and recommendations made on behalf of the Account are suitable forthe Client in light of the Investment Policy, which includes, among other things,the Client’s investment objectives, financial circumstances and risk tolerance.(c)When placing orders with brokers and dealers, the Manager shall seek to obtainbest execution for the Account in accordance with the Manager’s policy on bestexecution and applicable laws. In the event that the Client directs the Manager atany time in writing to use a particular broker or dealer to effect transactions forthe Account, the Client acknowledges that commission rates may not necessarilybe as favourable as the Manager may have otherwise been able to obtain from abroker or dealer selected by the Manager. The Manager may enter arrangements

Client NameDatePage 10involving the use of brokerage commissions generated by the Account (or “softdollars”) with dealers and brokers or other third parties in the course of providingservices under this Agreement. Such arrangements will only be entered inaccordance with the Manager’s policies regarding the use of the brokeragecommissions paid by the Account [attached hereto as Schedule ]. The Managershall, in seeking best execution and entering arrangements involving the use ofbrokerage commissions, comply with all applicable laws. The Manager mayamend its policies with respect to best execution and arrangements involving theuse of brokerage commissions at any time without notice to the Client.14.ASSIGNMENT AND AMENDMENT14.1No assignment of this Agreement or any part thereof shall be made by either partywithout the written consent of the other party.14.2The parties may at any time, and from time to time, amend this Agreement. Anyamendment, unless specifically provided for to the contrary herein, shall only be effectiveif made in writing and signed by the Manager and the Client.15.TERMINATION15.1This Agreement may be terminated by either party upon days’ written notice, exceptwhere a party is in material breach of this Agreement, in which circumstance the otherparty may terminate the Agreement immediately [with days written notice or withoutnotice].15.2The Client’s death, disability or physical or mental incompetence will not automaticallyterminate or change the terms of this Agreement. If not prohibited by law, the Client’spersonal representative, guardian, committee, attorney-in-fact, or other authorizedrepresentative may agree to amend the terms of this Agreement, as provided in paragraph14.2, or terminate this Agreement as provided in paragraph 15.1.16.ELECTRONIC COMMUNICATION16.1Unless otherwise agreed with the Client, the Manager may correspond with the Client,including providing the Client with all applicable statements and documentationregarding the Account by means of the internet or other electronic media. Because of theinherent risks associated with the electronic transmission of information on the internet orotherwise, the Manager does not guarantee the security and integrity of any electroniccommunications sent or received in relation to this engagement. While it is theManager’s policy to check its electronic mail correspondence with anti-virus softwareand other security software, the Manager does not guarantee that transmissions will befree from infection and accepts no responsibility or liability for any damages as a resultof communicating by means of the internet or other electronic media.

Client NameDatePage 1117.ENTIRE AGREEMENT17.1This Agreement, including the Schedules hereto, sets forth the entire understanding of theparties and is intended to be the complete and exclusive statement of the terms thereof.This Agreement supersedes and cancels any and all prior agreements between the parties,whether written or oral, relating to the management of the Account.17.2If, at any time subsequent to the date hereof, any provision of this Agreement is held byany court of competent jurisdiction to be illegal, void or unenforceable, such provisionshall be of no force and effect, but the illegality or unenforceability of such provisionshall have no effect upon, and shall not impair, the enforceability of any other provisionof this agreement. Notwithstanding anything in this agreement or any amendment hereofto the contrary, no provision of this Agreement shall be construed so as to violate therequirements of applicable law.17.3The confidentiality and indemnity provisions in paragraphs 3.1 and 9.1 respectively shallsurvive the termination of this Agreement.18.ENUREMENT18.1This Agreement shall enure to the benefit of and be binding upon the parties hereto andtheir respective heirs, executors, administrators, successors and permitted assigns.19.GOVERNING LAW19.1This Agreement is a contract made under and shall be governed by and construed inaccordance with the laws of the Province of [insert name of appropriate province] andthe federal laws of Canada applicable therein. Each party irrevocably submits to theexclusive jurisdiction of the courts of competent jurisdiction in the Province of inrespect of any action or proceeding relating in any way to this Agreement. A finaljudgment in any such action or proceeding may be enforced in other jurisdictions by suiton the judgment or in any other manner specified by law and shall not be re-litigated onthe merits.20.NOTICES20.1Any notice, statement, consent or approval required or permitted to be given inconnection with this Agreement (in this Section referred to as a “Notice”) shall be inwriting and shall be sufficiently given if delivered (whether in person, by post, by courierservice or other personal method of delivery), or if transmitted by facsimile or otherelectronic means of communication:(a)in the case of a Notice to the Manager at:[Insert Address]Attention:

Client NameDatePage 12Fax: Email:(b)in the case of a Notice to the Client at:[Insert Address]Attention: Fax: Email:20.2Any Notice delivered or transmitted to a party as provided above shall be deemed to havebeen given and received on the day it is delivered or transmitted, provided that it isdelivered or transmitted on a Business Day prior to 5:00 p.m. local time in the place ofdelivery or receipt. However, if the Notice is delivered or transmitted after 5:00 p.m.local time or if such day is not a Business Day then the Notice shall be deemed to havebeen given and received on the next Business Day.20.3Any party may, from time to time, change its address by giving Notice to the other partyin accordance with the provisions of this Section.21.LANGUAGE21.1The parties confirm that it is their wish that this Agreement, as well as any otherdocuments relating to this Agreement, including notices, schedules and authorizations, bedrawn up in the English language only. Les parties aux presentes conferment leurvolonte que cette convention, de meme que tous les documents, y compris tout avis,cedules et autorisations s’y rattachant, soient rediges en anglais seulement.If the foregoing terms are in accordance with your understanding, please sign both copies of thisAgreement and return one copy to the Manager.Yours very truly,[Full legal name of Manager]Per:Per:Print Name:Print Name:Title:Title:

Client NameDatePage 13I/We hereby agree to the foregoing terms as of the day of ,20 .For Corporate

Jul 11, 2016 · writing in the account documentation executed by the Client, until the Manager is in receipt of the Client’s written instructions to the contrary. 2.3 [If Individual Client] Where the Account is registered in the name of more than one individual, the Manager is entitle