SR&Z DRAFT
5/6/97
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made the ____ day of ____________, 1997 by and between
LEVCO Series Trust, a Delaware business trust (hereinafter called the "Trust"),
and Xxxx X. Xxxxx & Co., Inc., a Delaware corporation (hereinafter called the
"Adviser"):
WHEREAS, the Trust intends to engage in business as an open-end
management investment company and is registered as such under the Investment
Company Act of 1940, as amended (the "Act"); and
WHEREAS, the Adviser engages in the business of acting as investment
adviser; and
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory and certain other services in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, the Adviser desires to be retained to perform such services
on said terms and conditions:
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained in this Agreement, the Trust and the Adviser agree as
follows:
1. The Trust hereby retains the Adviser to act as investment adviser
of each of the series of the Trust (the "Funds") and, subject to the supervision
of the Board of Trustees of the Trust, to manage the investment activities of
the Funds and to provide certain other services as hereinafter set forth.
Without limiting the generality of the foregoing, the Adviser shall: obtain and
evaluate such information and advice relating to the economy, securities and
commodities markets, and securities and commodities as it deems necessary or
useful to discharge its duties hereunder; continuously manage the assets of the
Funds in a manner consistent with the investment objectives, policies and
restrictions of each Fund and applicable laws and regulations; determine the
securities and commodities to be purchased, sold or otherwise disposed of by the
Funds and the timing of such purchases, sales and dispositions; and take such
further action, including the placing of purchase and sale orders and the voting
of securities on behalf of the Funds, as the Adviser shall deem necessary or
appropriate. The Adviser shall furnish to or place at the disposal of the Trust
such of the information, evaluations, analyses and opinions formulated or
obtained by the Adviser in the discharge of its duties as the Trust may, from
time to time, reasonably request.
2. The Adviser shall assist in the selection of and the negotiation
of agreements with, and monitor the quality of services provided by, the Trust's
custodian, transfer agent, and other organizations which may provide services to
the Trust (but the Trust shall pay the fees and expenses of the custodian,
accounting agent and transfer agent and such other organizations and the Adviser
shall not be responsible for the acts or omissions of such service providers).
The Adviser shall provide administrative services to the Trust. (It being
understood that certain other services will be provided by the Trust's transfer
agent, accounting agent,
registrar, custodian and other agencies.) Any books and records maintained by
the Adviser in connection with the rendering of such administrative services
shall be the property of the Trust and, upon request therefor, the Adviser shall
surrender to the Trust such of the books and records so requested. All services
to be furnished by the Adviser under this Agreement (except for investment
advisory services) may be furnished through the Adviser's, or its affiliates',
directors, officers or employees. However, the investment policies, the
administration of its business and affairs, and all other acts of the Trust are
and shall at all times be subject to the approval and direction of the Board of
Trustees of the Trust.
3. The Adviser shall, at its own expense, maintain such staff and
employ or retain such personnel and consult with such other persons as may be
necessary to render the services required to be provided by the Adviser or
furnished to the Trust under this Agreement. Without limiting the generality of
the foregoing, the staff and personnel of the Adviser shall be deemed to include
persons employed or otherwise retained by the Adviser to furnish statistical and
other factual data, advice regarding economic factors and trends, information
with respect to technical and scientific developments, and such other
information, advice and assistance as the Adviser may desire.
4. The Trust will, from time to time, furnish or otherwise make
available to the Adviser such financial reports, proxy statements, policies and
procedures and other information relating to the business and affairs of the
Trust as the Adviser may reasonably require in order to discharge its duties and
obligations hereunder.
5. The Adviser shall bear the cost of rendering the services to be
performed by it under this Agreement, and shall provide the Trust with such
office space, facilities, equipment, clerical help, and other personnel and
services as the Trust shall reasonably require in the conduct of its business.
In addition, the Adviser may reimburse its affiliates for the costs and expenses
incurred in connection with providing administrative services for the Trust. The
Adviser shall also bear the cost of telephone service, heat, light, power and
other utilities provided to the Trust. The salaries of officers of the Trust,
and the fees and expenses of Trustees of the Trust, who are also directors,
officers or employees of the Adviser, or who are officers or employees of any
company affiliated with the Adviser, shall be paid and borne by the Adviser or
such affiliated company.
6. The Trust assumes and shall pay or cause to be paid all expenses
of the Trust not expressly assumed by the Adviser under this Agreement,
including without limitation: any payments pursuant to any plan of distribution
adopted by the Trust on behalf of any of the Funds (or any class of shares
thereof); the fees, charges and expenses of any registrar, custodian, accounting
agent, stock transfer and dividend disbursing agent; brokerage commissions;
taxes; expenses and costs of registering or qualifying the Trust and its shares
under federal and state securities laws; the costs and expenses of engraving and
printing stock certificates; the costs and expenses of preparing, printing,
including typesetting, and distributing prospectuses and statements of
additional information of the Trust and the Funds and supplements thereto to the
Trust's shareholders; all expenses of shareholders' and Trustees' meetings and
of preparing, printing and mailing proxy statements and reports to shareholders;
fees and travel expenses of
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Trustees and members of any advisory board or committee who are not also
officers, directors or employees of the Adviser or who are not officers or
employees of any company affiliated with the Adviser; all expenses incident to
any dividend, withdrawal or redemption options; charges and expenses of any
outside service used for pricing of the Trust's shares; fees and expenses of
legal counsel to the Trust and its Trustees; fees and expenses of the Trust's
independent accountants; membership dues of industry associations; interest
payable on Trust borrowings; postage; insurance premiums on property or
personnel (including officers and Trustees) of the Trust which inure to its
benefit; and extraordinary expenses (including but not limited to, legal claims
and liabilities and litigation costs and any indemnification related thereto).
7. As full compensation for the services and facilities furnished to
the Trust and the expenses assumed by the Adviser under this Agreement, each
Fund shall pay to the Adviser a fee with respect to such Fund, as calculated in
accordance with Schedule A hereto. This fee shall be paid monthly. Subject to
the provisions of paragraph 8 hereof, payment of the Adviser's compensation for
the preceding month shall be made as promptly as possible after completion of
the computations contemplated by paragraph 8 hereof.
8. In the event the operating expenses of a Fund, including amounts
payable to the Adviser pursuant to paragraph 7 hereof, for any fiscal year
ending on a date on which this Agreement is in effect, exceed any expense
limitation arising under any state securities laws or regulations (as such
limitations may be raised or lowered or waived upon application of the Trust or
the Adviser from time to time) which are not pre-empted by Federal law, the
Adviser shall reduce its fee to the extent of such excess and, if required
pursuant to any such laws or regulations, will reimburse the Fund for annual
operating expenses in excess of such expense limitation; provided, however, that
there shall be excluded from expenses the amount of any interest, taxes,
brokerage commissions, distribution fees and extraordinary expenses (including
but not limited to legal claims and liabilities and litigation costs and any
indemnification relating thereto) paid or payable by the Fund to the extent
permissible under applicable laws and regulations. The amount of any such
reduction in fee or reimbursement of expenses shall be calculated and accrued
daily and settled on a monthly basis, based upon the expense limitation
applicable to the Fund as at the end of the last business day of the month.
Should two or more such expense limitations be applicable as at the end of the
last business day of the month, that expense limitation which results in the
largest reduction in the Adviser's fee shall be applicable.
For purposes of this provision, should any applicable expense
limitation be based upon the gross income of a Fund, such gross income shall
include, but not be limited to, interest on debt securities held by the Fund
accrued to and including the last day of the Fund's fiscal year, and dividends
declared on equity securities held by the Fund, the record dates for which fall
on or prior to the last day of such fiscal year, but shall not include gains
from the sale of securities.
9. The Adviser will use its best efforts in the supervision and
management of the investment activities of the Trust and in providing services
hereunder, but in the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of its obligations hereunder, the Adviser shall
not be liable to the Trust or any Fund for any error of judgment or mistake of
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law or for any act or omission by the Adviser or for any losses sustained by the
Trust, any Fund or its shareholders.
10. Nothing contained in this Agreement shall prevent the Adviser or
any affiliated person of the Adviser from acting as investment adviser or
manager for any other person, firm or corporation and shall not in any way bind
or restrict the Adviser or any such affiliated person from buying, selling or
trading any securities or commodities for their own accounts or for the account
of others for whom they may be acting. Nothing in this Agreement shall limit or
restrict the right of any director, officer or employee of the Adviser 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 or
dissimilar nature.
11. The Trust acknowledges and agrees, in accordance with the
provisions of Article VIII, Section 9 of the Trust's Amended and Restated
Declaration of Trust dated May 1, 1997 that the name "LEVCO" and the LEVCO logo
and all rights to the use of such name or logo as part of the name of the Trust
and the Funds belong to Xxxx X. Xxxxx & Co., Inc.
12. This Agreement shall remain in effect as to each Fund until
[___________], 1999 and shall continue in effect for each Fund from year to year
thereafter provided such continuance as to such Fund is approved at least
annually by the vote of a majority of the outstanding voting securities of the
Trust, as defined by the Act and the rules thereunder, or by the Board of
Trustees of the Trust; provided that in either event such continuance is also
approved by a majority of the Trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined in the Act) of any such party (the
"Independent Trustees"), by vote cast in person at a meeting called for the
purpose of voting on such approval; provided, however, that (a) the Trust may at
any time, without payment of any penalty, terminate this Agreement as to the
Trust (or any Fund) upon sixty days' written notice to the Adviser, either by
majority vote of the Trustees of the Trust or by the vote of a majority of the
outstanding voting securities of the Trust (or such Fund) (as defined in the Act
and the rules thereunder); (b) this Agreement shall immediately terminate in the
event of its assignment (to the extent required by the Act and the rules
thereunder) unless such automatic termination shall be prevented by an exemptive
order of the Securities and Exchange Commission; and (c) the Adviser may
terminate this Agreement as to the Trust or any of the Funds without payment of
any penalty on sixty days' written notice to the Trust. The failure to approve a
continuance of this Agreement as to any Fund, or any termination of this
Agreement as to any Fund, shall not affect the continuation of the Agreement as
to the Trust or any other Funds which have approved a continuance or not
terminated this Agreement, as the case may be.
13. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed post-paid, to the other party at the
principal office of such party.
14. This Agreement may be amended only by the written agreement of
the parties. Any amendment shall be required to be approved by the Trustees of
the Trust and by a majority of the Independent Trustees in accordance with the
provisions of Section 15(c) of the Act and the rules thereunder. Any amendment
shall also be required to be approved by a vote of
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shareholders as, and to the extent, required by the Act and the rules
thereunder. Subject to the foregoing, an amendment may be effected without the
vote of shareholders: to reduce the fees payable hereunder by any Fund; to amend
Schedule A to specify initially the fee payable hereunder by any Fund which is
formed after the date of the effectiveness of this Agreement; to supply any
omission; to cure, correct or supplement any ambiguous, defective or
inconsistent provision hereof; or if necessary, to conform this Agreement to the
requirements of applicable laws or regulations, but neither the Trust nor the
Adviser shall be liable for failing to do so.
15. This Agreement shall be construed in accordance with the laws of
the State of New York and the applicable provisions of the Act. To the extent
the applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Act, the latter shall control.
16. The Trust represents that this Agreement has been duly approved
by the Trustees, including a majority of the Independent Trustees, and
shareholders of the Trust in accordance with the requirements of the Act and the
rules thereunder.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement on the day and year first above written.
LEVCO SERIES TRUST
By:
-----------------------------------
Title:
Name:
Attest:
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XXXX X. XXXXX & CO., INC.
By:
-----------------------------------
Title:
Name:
Attest:
---------------------
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SCHEDULE A
LEVCO Equity Value Fund shall pay to the Adviser monthly compensation
calculated daily at the annual rate of 0.85% of such Fund's average daily net
assets. Such calculations shall be made by applying 1/365th of the annual rate
to the Fund's net assets each day determined as of the close of business on that
day or the last previous business day. If this Agreement becomes effective
subsequent to the first day of a month or shall terminate before the last day of
a month, compensation for that part of the month this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above.
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