INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT ("Agreement"), is made and
entered into this ____ day of ________, 1997 by and between Berkshire Capital
Investment Trust, a Delaware business trust (the "Fund"), and Berkshire
Capital Holdings, Inc., a California corporation (the "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Fund, and open-end, non-diversified investment company
registered under the Investment Company Act of 1940 (the "1940 Act"), wishes
to retain the Investment Adviser to provide investment advisory services to
the Fund; and
WHEREAS, the Investment Adviser is willing to furnish such services
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
1. Employment of the Investment Adviser. The Fund hereby appoints the
Investment Adviser to manage the investment and reinvestment of assets of the
Berkshire Capital Growth & Value Fund and any other portfolio of the Fund
which may be hereafter designated as a separate series for the period and on
the terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. Obligations of the Fund. The Fund shall at all times inform the
Investment Adviser as to the securities owned by it, the funds available or to
become available for investment by it, and generally as to the condition of
its affairs. It shall furnish the Investment Adviser with such other documents
and information with regard to its affairs as the Investment Adviser may from
time to time reasonably request.
3. Obligations of the Investment Adviser. Subject to the direction and
control of the Fund's Board of Trustees, the Investment Adviser shall
regularly provide the Fund with investment research, advice, management and
supervision and shall furnish a continuous investment program for the Fund's
portfolio of securities consistent with the Fund's investment objective,
policies, and limitations as stated in the Fund's current Prospectus and
Statement of Additional Information. The Investment Adviser shall determine
from time to time what securities will be purchased, retained or sold by the
Fund, and shall implement those decisions, all subject to the provisions of
the Fund's Declaration of Trust, the 1940 Act, the applicable rules and
regulations of the Securities and Exchange Commission, and other applicable
federal and state laws, as well as the investment objectives, policies, and
limitations of the Fund. In placing orders for the Fund with brokers and
dealers with respect to the execution of the Fund's securities transactions,
the Investment Adviser shall attempt to obtain the best net results. In doing
so, the Investment Adviser may consider such factors which it deems relevant
to the Fund's best interest, such as price, the size of the transaction, the
nature of the market for the security, the amount of the commission, the
timing of the transaction, the reputation, experience and financial stability
of the broker-dealer involved and the quality of service rendered by the
broker-dealer in other
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transactions. The Investment Adviser shall have the discretionary authority to
utilize certain broker-dealers even though it may result in the payment by the
Fund of an amount of commission for effecting a securities transaction in
excess of the amount of commission another broker-dealer would have charged
for effecting that transaction, providing, however, that the Investment
Adviser had determined that such amount of commission was reasonable in
relation to the value of the brokerage and research services provided by the
broker-dealer effecting the transaction. In no instance will portfolio
securities be purchased from or sold to the Investment Adviser or any
affiliated person thereof except in accordance with the rules and regulations
promulgated by the Securities and Exchange Commission pursuant to the 1940
Act. The Investment Adviser shall also provide advice and recommendations with
respect to other aspects of the business and affairs of the Fund and shall
perform such other functions of management and supervision as may be directed
by the Board of Trustees of the Fund, provided that in no event shall the
Investment Adviser be responsible for any expense occasioned by the
performance of such functions.
4. Expenses of the Fund. The Investment Adviser is responsible for (i)
the compensation of any of the Fund's trustees, officers and employees who are
interested persons of the Investment Adviser, (ii) compensation of the
Investment Adviser's personnel and other expenses in connection with the
provisions of portfolio management services under this Agreement, and (iii)
expenses of printing and distributing the Fund's prospectus and sales and
advertising materials to prospective clients. Other than as herein
specifically indicated, the Investment Adviser shall not be responsible for
the Funds expenses. Specifically, the Investment Adviser will not be
responsible, except to the extent of the reasonable compensation of employees
of the Fund whose services may be used by the Investment Adviser hereunder,
for any of the following expenses of the Fund, which expenses shall be borne
by Fund: legal and audit expenses, organizational expenses; interest; taxes;
governmental fees; industry association fees; the cost (including brokerage
commissions or charges, if any) of securities purchased or sold by the Fund
and any losses incurred in connection herewith; fees, if any, of custodians,
transfer agents, registrars or other agents; distribution fees; expenses of
preparing share certificates; expenses relating to the redemption or
repurchase of the Fund's shares; fees and expenses of registering the Fund's
shares under the federal securities laws and of qualifying its shares under
applicable state Blue Sky laws, including expenses attendant upon renewing
such registrations and qualifications; expenses of preparing, setting in
print, printing and distributing prospectuses, proxy statements, reports,
notices, and dividends to fund shareholders; cost of stationary; costs of
shareholders and other meetings of the Fund; compensation and expenses of the
independent trustees of the Fund; fidelity bond and other insurance covering
the Fund and its officers and trustees.
5. Limitations on Salaries. No trustee, officer or employee of the Fund
shall receive from the Fund any salary or other compensation as such trustee,
officer or employee while he is at the same time director, officer or employee
of the Investment Adviser or any affiliated company of the Investment Adviser.
This paragraph shall not apply to trustees, executive committee members,
consultants and other persons who are not regular members of the Investment
Adviser's or any affiliated company's staff.
6. Compensation. As compensation for the services performed by the
Investment Adviser, the Fund shall pay the Investment Adviser, as promptly as
possible after the last day of each month, a fee, accrued each calendar day
(including weekends and holidays) at a rate of 1% per annum of the daily net
assets of the Fund. The Investment Adviser shall reduce such fee or, if
necessary, make payments to the Fund to the extent required to satisfy any
limitations with respect thereto imposed by the securities laws or regulations
thereunder of any state in which the Fund's shares are qualified for sale. The
daily net assets of the Funds shall be computed as of the time of the regular
close of business of the New York Stock Exchange, or such other time as may be
determined by the Board of Trustees of the Fund. Any of such payments as to
which the Investment Adviser may so request shall be accompanied by a report
of the Fund prepared either by the Fund or by a reputable firm of independent
accountants which shall show the amount properly payable to the Investment
Adviser under this Agreement and detailed computation thereof.
7. Limitation of Liability. The Investment Adviser assumes no
responsibility under this Agreement other than to render the services called
for hereunder in good faith, and shall not be responsible for any action of
the Board of Trustees of the Fund in the following or declining to follow any
advice or recommendation of the Investment Adviser; provided that nothing in
this Agreement shall protect the Investment Adviser against any liability to
the Fund or its stockholders to which it would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
its duties or by reason of its reckless disregard of its obligations and
duties hereunder.
8. Independent Contractor. The Investment Adviser shall be an
independent contractor and shall have no authority to act for or represent the
Fund in its investment commitments unless otherwise provided. No agreement,
bid, offer, commitment, contract or other engagement entered into by the
Investment Adviser whether on behalf of the Investment Adviser or whether
purporting to have been entered unto on behalf of the Fund shall be binding
upon the Fund, and all acts authorized to be done by the Investment Adviser
under this Agreement shall be done by it as an independent contractor and not
as an agent.
9. Activities of the Investment Adviser. Nothing in this Agreement
shall limit or restrict the right of any director, officer, or employee of the
Investment Adviser who may also be a trustee, officer, or employee of the
Fund, to engage in any other business or to devote his time and attention in
part to the management or other aspects of any other business, whether of a
similar nature or dissimilar nature, nor to limit or restrict the right of the
Investment Adviser to engage in any other business or to render services of
any kind, including investment advisory services, to any other corporation,
firm, individual or association.
10. Definitions. As used in this Agreement, the terms "assignment,"
"interested person," and "majority of the outstanding voting securities" shall
have meanings given to them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the Securities and Exchange Commission by any
rule, regulation or order.
11. Termination. This Agreement shall terminate automatically in the
event of its assignment by the Investment Adviser and shall not be assignable
by the Fund without consent of the Investment Adviser. This Agreement may also
be terminated at any time, without payment of penalty, by the Fund or by the
Investment Adviser on sixty (60) days' written notice addressed to the other
party at its principal place of business. Upon the termination of this
agreement, the obligations of all the parties hereunder shall cease and
terminate as of the date of such termination, except for any obligation to
respond for a breach of this Agreement committed prior to such termination and
except or the obligation of the Fund to pay to the Investment Adviser the fee
provided in Paragraph 6 hereof, prorated to the date of termination.
12. Term. This Agreement shall become effective on the effective date of
the first public offering of the Fund's shares and shall continue in effect
for one year and from year to year thereafter only so long as specifically
approved annually by (i) the Fund's Board of Trustees and by a vote of the
holders of a majority of the outstanding voting securities of the Fund, or
(ii) a majority of the Trustees who are not parties to the Agreement or
"interested persons" (as defined in the Act) of any such party cast in person
at a meeting called for the purpose of voting on such approval.
13. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought, and no material amendment of this agreement shall be
effective until approved by vote of the holders of a majority of the Fund's
outstanding voting securities.
14. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and sealed by their officers thereunto duly authorized on the day
and year first above written.
ATTEST: BERKSHIRE CAPITAL INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxx By:./s/ Xxxxxxx X. Xxxxx III
____________________________ ._____________________________
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxx III, Trustee
ATTEST: BERKSHIRE CAPITAL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx By:./s/ Xxxxxxx X. Xxxxx III
____________________________ ._____________________________
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxx III, Chairman
