EXHIBIT (5)(a)(2)
EQUIFUND--XXXXXX NATIONAL FIDUCIARY EQUITY FUNDS
Xxxxxx EquiFund--Australasia National Fiduciary Equity Fund
Xxxxxx EquiFund--Global Fiduciary Equity Fund
Xxxxxx EquiFund--International Fiduciary Equity Fund
Xxxxxx EquiFund--Ireland National Fiduciary Equity Fund
Xxxxxx EquiFund--Mexico National Fiduciary Equity Fund
Xxxxxx EquiFund--United States National Fiduciary Equity Fund
INVESTMENT ADVISORY AGREEMENT
CONTRACT made this 1st day of April, 1994, between EQUIFUND--XXXXXX
NATIONAL FIDUCIARY EQUITY FUNDS, a Massachusetts business trust (the "Trust"),
on behalf of XXXXXX EQUIFUND--AUSTRALASIA NATIONAL FIDUCIARY EQUITY FUND,
XXXXXX EQUIFUND--GLOBAL FIDUCIARY EQUITY FUND, XXXXXX EQUIFUND--INTERNATIONAL
FIDUCIARY EQUITY FUND, XXXXXX EQUIFUND--IRELAND NATIONAL FIDUCIARY EQUITY FUND,
XXXXXX EQUIFUND--MEXICO NATIONAL FIDUCIARY EQUITY FUND and XXXXXX EQUIFUND
--UNITED STATES NATIONAL FIDUCIARY EQUITY FUND and any other series of the
Trust which the Adviser (as defined below) and the Trust shall agree from time
to time to be subject to this Agreement (collectively, the "Funds"), and The
Winthrop Corporation, a Connecticut corporation doing business as XXXXXX
INVESTORS' SERVICE (the "Adviser"):
1. Duties of the Adviser. The Trust, on behalf of each Fund, hereby
employs the Adviser to act as investment adviser for and to manage the
investment and reinvestment of the assets of the Fund and, except as otherwise
provided in an administration agreement, to administer their affairs, subject
to the supervision of the Trustees of the Trust, for the period and on the terms
set forth in this Contract.
The Adviser hereby accepts such employment, and undertakes to afford
to the Trust the advice and assistance of the Adviser's organization in the
choice of investments and in the purchase and sale of securities for each Fund
and to furnish for the use of the Trust office space and all necessary office
facilities, equipment and personnel for servicing the investments of the Funds
and for administering the Trust's affairs and to pay the salaries and fees
of all officers and Trustees of the Trust who are members of the Adviser's
organization and all personnel of the Adviser performing services relating to
research and investment activities. The Adviser shall for all purposes herein be
deemed to be an independent contractor and shall, except as otherwise expressly
provided or authorized, have no authority to act for or represent the Trust in
any way or otherwise be deemed an agent of the Trust.
The Adviser shall provide the Trust with such investment management
and supervision as the Trust may from time to time consider necessary for the
proper supervision of the Funds. As investment adviser to the Funds, the Adviser
shall furnish continuously an investment program and shall determine from time
to time what securities shall be purchased, sold or exchanged and what portion
of each Fund's assets shall be held uninvested, subject always to the
applicable restrictions of the Declaration of Trust, By-Laws and registration
statement of the Trust under the Investment Company Act of 1940, all as from
time to time amended. The Adviser is authorized, in its discretion and without
prior consultation with the Trust, but subject to each Fund's investment
objective, policies and restrictions, to buy, sell, lend and otherwise trade in
any stocks, bonds, options and other securities and investment instruments
on behalf of the Funds, to purchase, write or sell options on securities,
futures contracts or indices on behalf of the
Funds, to enter into commodities contracts on behalf of the Funds,including
contracts for the future delivery of securities or currency and futures
contracts on securities or other indices, and to execute any and all agreements
and instruments and to do any and all things incidental thereto in connection
with the management of the Funds. Should the Trustees of the Trust at any time,
however, make any specific determination as to investment policy for the period,
if any, specified in such notice or until similarly notified that such
determination has been revoked. The Adviser shall take, on behalf of the Funds,
all actions which it deems necessary or desirable to implement the investment
policies of the Trust and of each Fund.
The Adviser shall place all orders for the purchase or sale of portfolio
securities for the account of a Fund with brokers or dealers selected by the
Adviser, and to that end the Adviser is authorized as the agent of the Fund to
give instructions to the custodian of the Fund as to deliveries of securities
and payments of cash for the account of a Fund or the Trust. In connection with
the selection of such brokers or dealers and the placing of such orders, the
Adviser shall use its best efforts to seek to execute portfolio security
transactions at prices which are advantageous to the Fund and (when a disclosed
commission is being charged) at reasonably competitive commission rates. In
selecting brokers or dealers qualified to execute a particular transaction,
brokers or dealers may be selected who also provide brokerage and research
services and products (as those terms are defined in Section 28(e) of the
Securities Exchange Act of 1934) to the Adviser and the Adviser is expressly
authorized to cause the Funds to pay any broker or dealer who provides such
brokerage and research service and products a commission for executing a
security transaction which is in excess of the amount of commission
another broker or dealer would have charged for effecting that transaction if
the Adviser determines in good faith that such amount of commission is
reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer, viewed in terms of either that particular
transaction or the overall responsibilities which the Adviser and its affiliates
have with respect to accounts over which they exercise investment discretion.
Subject to the requirement set forth in the second sentence of this paragraph,
the Adviser is authorized to consider, as a factor in the selection of any
broker or dealer with whom purchase or sale orders may be placed, the fact that
such broker or dealer has sold or is selling shares of the Fund or the
Trust or of other investment companies sponsored by the Adviser.
2.Compensation of the Adviser. For the services, payments and facilities
to be furnished hereunder by the Adviser, the Trust on behalf of each Fund shall
pay to the Adviser on the last day of each month a fee equal to the percentage
of the average daily net assets of each Fund of the Trust throughout the month,
computed in accordance with the Trust's Declaration of Trust and any applicable
votes of the Trustees of the Trust, as shown in the following table:
ANNUAL ADVISORY FEE RATES
-------------------------
Under $500 Million
$500 to Over
Million $1 Billion $1 Billion
--------- ------------- -----------
0.75% 0.73% 0.68%
In case of initiation or termination of the Contract during any month
with respect to any Fund, each Fund's fee for that month shall be reduced
proportionately on the basis of the number of calendar days during which the
Contract is in effect and the fee shall be computed upon the average net
assets for the business days the Contract is so in effect for that month.
The Adviser may, from time to time, waive all or a part of the above
compensation.
3. Allocation of Charges and Expenses. It is understood that the Trust
will pay all its expenses other than those expressly stated to be payable by the
Adviser hereunder, which expenses payable by the Trust shall include, without
implied limitation (i) expenses of maintaining the Trust and continuing its
existence, (ii) registration of the Trust under the Investment Company Act of
1940, (iii) commissions, fees and other expenses connected with the purchase or
sale of securities, (iv) auditing, accounting and legal expenses, (v) taxes and
interest, (vi) governmental fees, (vii) expenses of issue, sale, repurchase and
redemption of shares, (viii) expenses of registering and qualifying the Trust
and its shares under federal and state securities laws and of preparing and
printing prospectuses for such purposes and for distributing the same to
shareholders and investors, and fees and expenses of registering and maintaining
registration of the Trust and of the Trust's principal underwriter, if any, as
broker-dealer or agent under state securities laws, (ix) expenses of reports and
notices to shareholders and of meetings of shareholders and proxy solicitations
therefor, (x) expenses of reports to governmental officers and commissions, (xi)
insurance expenses, (xii) association membership dues, (xiii) fees, expenses and
disbursements of custodians and subcustodians for all services to the Trust
(including without limitation safekeeping of funds and securities, keeping of
books and accounts and determination of net asset value), (xiv) fees, expenses
and disbursements of transfer agents and registrars for all services to the
Trust, (xv) expenses for servicing shareholder accounts, (xvi) any direct
charges to shareholders approved by the Trustees of the Trust, (xviii) all
payments to be made and expenses to be assumed by the Trust pursuant to any
one or more distribution plans adopted by the Trust pursuant to Rule 12b-1
under the Investment Company Act of 1940, (xix) the administration fee payable
to the Trust's administrator and (xx) such nonrecurring items as may arise,
including expenses incurred in connection with litigation, proceedings and
claims and the obligation of the Trust to indemnify its Trustees and officers
with respect thereto.
4. Other Interests. It is understood that Trustees, officers and
shareholders of the Trust are or may be or become interested in the Adviser as
directors, officers, employees, stockholders or otherwise and that directors,
officers employees and stockholders of the Adviser are or may be or become
similarly interested in the Trust, and that the Adviser may be or become
interested in the Trust as a shareholder or otherwise. It is also understood
that directors, officers, employees and stockholders of the Adviser are or
may be or become interested (as directors, trustees, officers, employees,
stockholders or otherwise) in other companies or entities (including, without
limitation, other investment companies) which the Adviser may organize, sponsor
or acquire, or with which it may merge or consolidate, and which may include the
words "Xxxxxx" or "Xxxxxx Investors" or any combination thereof as part of their
names, and that the Adviser or its subsidiaries or affiliates may enter into
advisory or management agreements or other contracts or relationships with
such other companies or entities.
5. Limitation of Liability of the Adviser. The services of the Adviser
to the Trust are not to be deemed to be exclusive, the Adviser being free to
render services to others and engage in other business activities. In the
absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Adviser, the
Adviser shall not be subject to liability to the Trust or to any shareholder of
the Trust for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses which may be sustained in the purchase,
holding or sale of any security.
6. Sub-Investment Advisers. The Adviser may employ one or more sub-
investment advisers from time to time to perform such of the acts and services
of the Adviser, including the selection of brokers or dealers to execute the
Trust's portfolio security transactions, and upon such terms and
conditions as may be agreed upon between the Adviser and such sub-investment
adviser and approved by the Trustees of the Trust.
7. Duration and Termination of this Contract. This Contract shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect as to each Fund to and including
February 28, 1996 and shall continue in full force and effect as to each Fund
indefinitely thereafter, but only so long as such continuance after February
28, 1996 is specifically approved at least annually (i) by the Trustees of the
Trust or by vote of a majority of the outstanding voting securities of that
Fund and (ii) by the vote of a majority of those Trustees of the Trust who
are not interested persons of the Adviser or (other than as a Trustee) the Trust
cast in person at a meeting called for the purpose of voting on such approval.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Contract as to any Fund, without the payment
of any penalty, by action of its Board of Directors or Trustees, as the case
may be, and the Trust may, at any time upon such written notice to the Adviser,
terminate this Contract as to any Fund by vote of a majority of the
outstanding voting securities of that Fund. This Contract shall terminate
automatically in the event of its assignment.
8. Amendments of the Contract. This Contract may be amended as to any
Fund by a writing signed by both parties hereto, provided that no amendment to
this Contract shall be effective as to that Fund until approved (i) by the
vote of a majority of those Trustees of the Trust who are not interested
persons of the Adviser or the Trust cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by vote of a majority of the
outstanding voting securities of that Fund.
9. Limitation of Liability. The Adviser expressly acknowledges the
provision in the Declaration of Trust of the Trust (Article XIV, Section 2)
limiting the personal liability of shareholders of the Trust, and the Adviser
hereby agrees that it shall have recourse only to the Trust for payment of
claims or obligations as between the Trust and Adviser arising out of this
Contract and shall not seek satisfaction from the shareholders or any
shareholder of the Trust. No series of the Trust shall be liable for the
obligations of any other series of the Trust.
10. Certain Definitions. The terms "assignment" and "interested persons"
when used herein shall have the respective meanings specified in the Investment
Company Act of 1940 as now in effect or as hereafter amended subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
by any rule, regulation or order. The term "vote of a majority of the
outstanding voting securities of that Fund" shall mean the vote of the lesser
of (a) 67 per centum or more of the shares of the particular Fund present or
represented by proxy at the meeting of holders of more than 50 per centum of
the outstanding shares of the particular Fund are present or represented by
proxy at the meeting, or (b) more than 50 per centum of the outstanding shares
of the particular fund.
11. Use of the Name "Xxxxxx." The Adviser hereby consents to the use by
the Trust of the name "Xxxxxx" as part of the Trust's name and the name of each
Fund; provided, however, that such consent shall be conditioned upon the
employment of the Adviser or one of its affiliates as the investment adviser of
the Trust. The name "Xxxxxx" or any variation thereof may be used from time to
time in other connections and for other purposes by the Adviser and its
affiliates and other investment companies that have obtained consent to the use
of the name "Xxxxxx". The Adviser shall have the right to require the Trust to
cease using the name "Xxxxxx" as part of the Trust's name and the name of each
Fund if the Trust ceases, for any reasons, to employ the Adviser or one of its
affiliates as the Trust's investment
adviser. Future names adopted by the Trust for itself and its Funds, insofar as
such names include identifying words requiring the consent of the Adviser, shall
be the property of the Adviser and shall be subject to the same terms and
conditions.
EQUIFUND--XXXXXX NATIONAL THE WINTHROP CORPORATION
FIDUCIARY EQUITY FUNDS D/B/A/ XXXXXX INVESTORS'
on behalf of SERVICE
XXXXXX EQUIFUND--AUSTRALASIA
NATIONAL FIDUCIARY EQUITY FUND
XXXXXX EQUIFUND--GLOBAL
FIDUCIARY EQUITY FUND
XXXXXX EQUIFUND--INTERNATIONAL
FIDUCIARY EQUITY FUND
XXXXXX EQUIFUND--IRELAND NATIONAL
FIDUCIARY EQUITY FUND
XXXXXX EQUIFUND--MEXICO NATIONAL
FIDUCIARY EQUITY FUND
XXXXXX EQUIFUND--UNITED STATES
NATIONAL FIDUCIARY EQUITY FUND
By:/s/ Xxxxx X. Xxxxxxx By:/s/ Xxxxxx Xxxxxxxx
----------------------- ----------------------
President Executive Vice President
