INVESTMENT ADVISORY AGREEMENT
WPG GROWTH AND INCOME FUND
AGREEMENT made as of the 1st day of May, 1993, by and between WPG
GROWTH AND INCOME FUND, a Massachusetts business trust (the "Trust"), and XXXXX,
XXXX & XXXXX, a New York limited partnership (the "Investment Adviser" or
"WPG").
The Trust is an open-end, management investment company, registered
under the Investment Company Act of 1940, as amended (the "1940 Act"). The
Investment Adviser is an investment adviser registered under the Investment
Advisers Act of 1940, as amended, and is a broker-dealer registered under the
Securities Exchange Act of 1934, as amended.
The Trust desires the Investment Adviser to render services to the
Trust, and the Investment Adviser is willing to render such services upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. INVESTMENT ADVISER. The Trust will, and hereby does, retain the
Investment Adviser to act as the investment adviser of the Trust
and to provide certain services, as more fully set forth below,
and the Investment Adviser hereby accepts such retainer.
2. SUB-ADVISERS. The Investment Adviser may engage one or more
investment advisers which are either registered as such or
specifically exempt from registration under the Investment
Advisers Act of 1940, as amended, to act as sub- advisers to
provide with respect to the Trust certain services set forth in
Section 4 of this Agreement, all as shall be set forth in a
written contract to which the Trust and the Investment Adviser
shall be parties, which contract shall be subject to approval by
the vote of a majority of the Trustees of the Trust who are not
interested persons of the Investment Adviser, the sub-adviser or
of the Trust, cast in person at a meeting called for the purpose
of voting on such approval and by the vote of a majority of the
outstanding voting securities of the Trust and otherwise
consistent with the terms of the 1940 Act.
3. INFORMATION SUPPLIED BY THE TRUST. The Trust will, from time to
time, deliver to the Investment Adviser detailed statements of
the assets and resources of the Trust and information as to its
investment objectives.
4. ADVISORY SERVICES.
(a) The Investment Adviser will regularly provide the Trust with
investment research, advice and supervision and will furnish
continuously an investment program for the Trust consistent
with the investment objectives and policies of the Trust.
The Investment Adviser will determine from time to time what
securities shall be purchased for the Trust, what securities
shall be held or sold by the Trust and what portion of the
Trust's assets shall be held uninvested as cash, subject
always to the provisions of the Trust's Declaration of
Trust, By-Laws and its registration statement under the 1940
Act and under the Securities Act of 1933 covering the
Trust's shares, as filed with the Securities and Exchange
Commission, and to the investment objectives, policies and
restrictions of the Trust, as each of the same shall be from
time to time in effect, and subject, further, to such
policies and instructions as the Board of Trustees of the
Trust may from time to time establish. To carry out such
determinations, the Investment Adviser will place orders for
the investment and reinvestment of Trust assets. The
Investment Adviser will exercise full discretion and act for
the Trust in the same manner and with the same force and
effect as the Trust itself might or could do with respect to
purchases, sales or other transactions, as well as with
respect to all other things necessary or incidental to the
furtherance or conduct of such purchases, sales or other
transactions.
(b) The Investment Adviser will, to the extent reasonably
required in the conduct of the business of the Trust and
upon its request, furnish to the Trust research, statistical
and advisory reports upon the industries, businesses,
corporations or securities as to which such requests shall
be made, whether or not the Trust shall at the time have any
investment in such industries, businesses, corporations or
securities. The Investment Adviser will use its best efforts
in the preparation of such reports and will endeavor to
consult the persons and sources believed by it to have
information available with respect to such industries,
businesses, corporations or securities.
(c) The Investment Adviser will maintain all books and records
with respect to the Trust's securities transactions required
by sub-paragraphs (b)(5),(6),(9) and (10) and paragraph (f)
of Rule 31a-1 under the 1940 Act (other than those records
being maintained by the Trust's custodian or transfer agent)
and preserve such records
2
for the periods prescribed therefor by Rule 31a-2 of the
1940 Act. The Investment Adviser will also provide to the
Trust's Board of Trustees such periodic and special reports
as the Board may reasonably request.
5. ALLOCATION OF CHARGES AND EXPENSES. The Investment Adviser will
pay all costs incurred by it in connection with the performance
of its duties under Section 4. The Investment Adviser will pay
the compensation and expenses of all of its personnel and will
make available, without expense to the Trust, the services of
such of its partners, officers and employees as may duly be
elected officers or Trustees of the Trust, subject to their
individual consent to serve and to any limitations imposed by
law. The Investment Adviser will not be required to pay any
expenses of the Trust other than those specifically allocated to
the Investment Adviser in this paragraph 5. In particular, but
without limiting the generality of the foregoing, the Investment
Adviser will not be required to pay: (i) fees and expenses of any
administrator of the Trust; (ii) organization expenses of the
Trust; (iii) fees and expenses incurred by the Trust in
connection with membership in investment company organizations;
(iv) brokers' commissions; (v) payment for portfolio pricing
services to a pricing agent, if any; (vi) legal, accounting or
auditing expenses (including an allocable portion of the cost of
its employees rendering legal services to the Trust); (vii)
interest, insurance premiums, taxes or governmental fees; (viii)
the fees and expenses of the transfer agent of the Trust; (ix)
the cost of preparing stock certificates or any other expenses,
including clerical expenses of issue, redemption or repurchase of
shares of the Trust; (x) the expenses of and fees for registering
or qualifying shares for sale and of maintaining the registration
of the Trust and registering the Trust as a broker or a dealer;
(xi) the fees and expenses of Trustees of the Trust who are not
affiliated with the Investment Adviser; (xii) the cost of
preparing and distributing reports and notices to shareholders,
the Securities and Exchange Commission and other regulatory
authorities; (xiii) the fees or disbursements of custodians of
the Trust's assets, including expenses incurred in the
performance of any obligations enumerated by the Declaration of
Trust or By-Laws of the Trust insofar as they govern agreements
with any such custodian; (xiv) costs in connection with annual or
special meetings of shareholders, including proxy material
preparation, printing and mailing; or (xv) litigation and
indemnification expenses and other extraordinary expenses not
incurred in the ordinary course of the Trust's business. The
Investment Adviser shall not be required to pay expenses of
activities which are primarily intended to result in sales of
shares of the Trust.
3
6. LIMITATION OF LIABILITY.
(a) THE INVESTMENT ADVISER. The Investment Adviser will not be
liable for any error of judgment or mistake of law or for
any loss sustained by reason of the adoption of any
investment policy or the purchase, sale, or retention of any
security on the recommendation of the Investment Adviser,
whether or not such recommendation shall have been based
upon its own investigation and research or upon
investigation and research made by any other individual,
firm or corporation; but nothing contained herein will be
construed to protect the Investment Adviser against any
liability to the Trust or its shareholders 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 under this
Agreement.
(b) THE TRUST. It is understood and expressly stipulated that
none of the Trustees or shareholders of the Trust shall be
personally liable hereunder. Neither the Trustees, officers,
agents nor shareholders of the Trust assume any personal
liability for obligations entered into on behalf of the
Trust. All persons dealing with the Trust must look solely
to the property of the Trust for the enforcement of any
claims against the Trust. No series of the Trust shall be
liable for any claims against any other series.
7. COMPENSATION OF THE INVESTMENT ADVISER. Neither the Investment
Adviser nor any affiliate of the Investment Adviser will act as
principal or receive directly or indirectly any compensation in
connection with the purchase or sale of investment securities by
the Trust, other than the compensation provided for in this
Section and such brokerage commissions as are permitted by the
1940 Act, it being contemplated that WPG will act as principal
broker for the Trust in U.S. securities transactions.
(a) Except as provided in Subsection (b) below, the Trust will
pay the Investment Adviser an annual fee, payable monthly,
which varies in accordance with the total amount of daily
net assets of the Trust under the management of the
Investment Adviser. The annual advisory fee expressed as a
percentage of the average daily net assets of the Trust is
0.75% of the average daily net assets. For any period less
than a full month during which this Agreement is in effect,
the fee shall be prorated according to the proportion which
such period bears to a full month. For the purposes hereof,
the net assets of the Trust shall be computed in
4
the manner specified in the Trust's prospectus for the
computation of the value of such net assets in connection
with the determination of the net asset value of its shares.
On any day that the net asset value calculation is suspended
as specified in the Trust's prospectus, the net asset value
for purposes of calculating the advisory fee shall be
calculated as of the date last determined.
(b) If the operating expenses of the Trust in any year
(including the investment advisory fee referred to in
Subsection (a) above, but excluding taxes, brokerage
commissions, interest, dividends on securities sold short,
distribution expenses, and extraordinary legal fees and
expenses) exceed the limits set by certain state securities
administrators in states in which shares of the Trust are
sold, the amount payable to the Investment Adviser under
Subsection (a) above will be reduced (but not below $0) by
the amount of such excess. If amounts have already been
advanced to the Investment Adviser under this Agreement, the
Investment Adviser will return such amounts to the Trust to
the extent required by the preceding sentence.
(c) In addition to the foregoing, the investment Adviser may
from time to time agree not to impose all or a portion of
its fee otherwise payable hereunder (in advance of the time
such fee or portion thereof would otherwise accrue) and/or
undertake to pay or reimburse the Trust for all or a portion
of its expenses not otherwise required to be borne or
reimbursed by the Investment Adviser. Any such fee reduction
or undertaking may be discontinued or modified by the
Investment Adviser at any time.
8. ADVERTISING MATERIAL. The Trust will not approve or authorize the
use or distribution, in connection with the offering of its
shares for sale, of any literature or advertisements in any form
or through any medium, written or oral, unless not less than ten
(10) days prior to the giving of such approval or authorization
by the Trust, the Trust shall have submitted such literature or
advertising to the Investment Adviser and the Investment Adviser,
within ten (10) days, shall either have specifically approved or
shall have failed to disapprove such literature or advertising.
9. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) DURATION. This Agreement shall remain in force until April
30, 1995 and from year to year thereafter, but only so long
as such
5
continuance is specifically approved at least annually by a
vote of a majority of the Trustees, including a majority of
the Trustees who are not parties hereto or "interested
persons" (as defined by the 0000 Xxx) of the Investment
Adviser, or by vote of a "majority of the outstanding voting
shares" (as defined in the 0000 Xxx) of the Trust, subject
to the provisions for termination and all of the other terms
and conditions hereof.
(b) VOLUNTARY TERMINATION. This Agreement may be terminated
without the payment of any penalty by (a) the Trust, upon
sixty (60) days notice in writing to the Investment Adviser
provided such termination is authorized by resolution of the
Trustees of the Trust or by a vote of a "majority of its
outstanding voting shares" of the Trust (as defined in the
Act) and (b) the Investment Adviser upon sixty (60) days
notice in writing to the Trust.
(c) AUTOMATIC TERMINATION. This Agreement will automatically and
immediately terminate in the event of its "assignment," as
that term is used in the 1940 Act and rules and regulations
promulgated thereunder, by the Investment Adviser.
10. TRADING, SERVICES TO OTHERS, BROKERAGE. Nothing in this Agreement
will in any way limit or restrict the Investment Adviser or any
of its officers, directors, partners or employees from buying,
selling or trading in any securities for its own or other
accounts. The Investment Adviser may act as an investment adviser
to any other person, firm or corporation, and may perform
management and any other services for any other person,
association, corporation, firm or other entity pursuant to any
contract or otherwise, and take any action or do anything in
connection therewith or related thereto; and no such performance
of management or other services or taking of any such action or
doing of any such thing shall be in any manner restricted or
otherwise affected by any aspect of any relationship of the
Investment Adviser to or with the Trust or deemed to violate or
give rise to any duty or obligation of the Investment Adviser to
the Trust; provided, however, that it is understood that any
advice rendered to the Trust by the Investment Adviser will be
used solely for the benefit of the Trust. The Trust recognizes
that Investment Adviser, in effecting transactions for their
various accounts, may not always be able to take or liquidate
investment positions in the same security at the same time and at
the same price.
11. NAME OF THE TRUST. The Trust hereby agrees that in the event that
neither the Investment Adviser nor any of its affiliates acts as
6
investment adviser to the Trust, the name of the Trust will be
changed to one that does not contain the name "Xxxxx, Xxxx &
Xxxxx" or the initials "WPG" or otherwise suggest an affiliation
with the Investment Adviser.
12. SERIES OF THE TRUST. The Investment Adviser recognizes that the
Trust may terminate any series of the Trust, and may create new
series.
13. CHANGE OF MEMBERSHIP OF INVESTMENT ADVISER. The Investment
Adviser hereby agrees to notify the Trust of any change in the
membership of its partnership within a reasonable time after such
change.
14. INDEPENDENT CONTRACTOR. The Investment Adviser is an independent
contractor and not an employee of the Trust for any purpose.
15. ENTIRE AGREEMENT. This Agreement states the entire agreement of
the parties hereto, and is intended to be the complete and
exclusive statement of the terms hereof. It may not be added to
or changed orally, and may not be modified or rescinded except by
a writing signed by the parties hereto and in accordance with the
1940 Act, when applicable.
16. NOTICES. Any notices sent pursuant to this Agreement may be sent
by mail (postage prepaid) as follows, or to such other address or
addresses as the party may advise in writing:
(a) In the case of notices sent to the Trust to:
WPG GROWTH AND INCOME FUND
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
(b) In the case of notices sent to the Investment Adviser to:
XXXXX, XXXX & XXXXX
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
17. GOVERNING LAW. This Agreement and all performance hereunder
shall be governed by the laws of the State of New York,
which apply to contracts made and to be performed in the
State of New York.
7
18. MISCELLANEOUS. The captions in this Agreement are included
for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect
their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
WPG GROWTH AND INCOME FUND
By:________________________________
Its:
XXXXX, XXXX & XXXXX
By:________________________________
Its:
-8-
