FORM OF
INVESTMENT ADVISORY AGREEMENT
Tomorrow Medium-Term Retirement Fund
AGREEMENT made as of the __ day of August, 1998, by and between TOMORROW
FUNDS RETIREMENT TRUST, a Delaware business trust (the "Trust"), on behalf of
its series TOMORROW MEDIUM-TERM RETIREMENT FUND (the "Fund"), and XXXXX, XXXX &
XXXXX, L.L.C., a Delaware limited liability company (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,
on behalf of the Fund, 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
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Investment Adviser to act as the investment adviser of the Fund 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
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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 Fund certain services set forth in
Section 4 of this Agreement, all as shall be set forth in a written contract to
which the Trust, on behalf of the Fund, 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 Fund and otherwise consistent with the
terms of the 1940 Act.
3. INFORMATION SUPPLIED BY THE TRUST. The Trust will, from time to time,
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deliver to the Investment Adviser detailed statements of the assets and
resources of the Fund and information as to the Fund's investment objectives.
4. ADVISORY SERVICES.
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(a) The Investment Adviser will regularly provide the Trust, on behalf
of the Fund, with investment research, advice and supervision and
will furnish continuously an investment program for the Fund
consistent with the investment objectives and policies of the Fund.
The Investment Adviser will determine from time to time what
securities shall be purchased for the Fund, what securities shall be
held or sold by the Fund and what portion of the Fund'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 Fund, 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
Fund assets. The Investment Adviser will exercise full discretion
and act for the Fund in the same manner and with the same force and
effect as the Fund 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 Fund and upon its request,
furnish to the Fund research, statistical and advisory reports upon
the industries, businesses, corporations or securities as to which
such requests shall be made, whether or not the Fund 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 Fund'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 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
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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 or the
Fund, the services of such of its Managing Directors, officers and employees as
may be duly 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 bear any expenses otherwise payable
by the Trust or the Fund except as may be specifically agreed pursuant to
Section 7 of this Agreement, but will be required to pay expenses 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 Fund;
(ii) organization expenses of the Trust or the Fund; (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; (xv) litigation and indemnification
expenses and other extraordinary expenses not incurred in the ordinary course of
the Trust's business; or (xvi) distribution fees and service fees.
6. LIMITATION OF LIABILITY.
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(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
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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
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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
and brokerage and research services as are permitted by the Securities Exchange
Act of 1934, it being contemplated that WPG will act as principal broker for the
Trust in U.S. securities transactions.
(a) Except as provided in Subsections (b) and (c) below, the Trust, on
behalf of the Fund, will pay the Investment Adviser an annual fee,
payable monthly, which varies in accordance with the total amount of
daily net assets of the Fund under the management of the Investment
Adviser. The annual advisory fee expressed as a percentage of the
average daily net assets of the Fund is 0.75%. 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 Fund shall be computed in the manner specified in the Fund'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 Fund's prospectus, the net asset value for
purposes of calculating the advisory fee shall be calculated as of
the date last determined.
(b) 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 assume responsibility for all or a
portion of any expenses related to the operations of the Fund that
are not otherwise required to be directly or indirectly borne by the
Investment Adviser. Further, any agreement by the Investment Adviser
to limit the Fund's operating expenses to a specific level may be
made with the understanding that the Fund, to the extent legally
permissible, will reimburse the Investment Adviser for advisory fees
foregone and/or expenses paid by the Investment Adviser for a
particular year pursuant to such agreement if in any subsequent year
operating expenses for the Fund are less than the operating expenses
limitation (if any), for such subsequent year to which the
Investment Adviser may agree. Subject to the foregoing, any fee
reduction or undertaking referred to in this Subsection shall
constitute a binding modification of this Agreement while it is in
effect but may be discontinued or modified prospectively by the
Investment Adviser at any time.
(c) The fees payable to the Investment Adviser under this Agreement
shall be paid into an interest-bearing escrow account in the event
that (i) the Securities and Exchange Commission issues an order
permitting the implementation of this Agreement prior to the
approval of this Agreement by the holders of "a majority of the
outstanding voting securities" (as defined in the 0000 Xxx) of the
Trust and (ii) the holders of "a majority of the outstanding voting
securities" (as defined in the 0000 Xxx) of the Trust have not voted
to approved this Agreement by the date of the closing of the
acquisition by Robeco Groep N.V. of the outstanding equity interests
of the Investment Adviser. If such approval has subsequently been
obtained by _____________, 1998, the fees paid by the Trust into the
escrow account (and interest thereon) shall be paid to the
Investment Adviser. If such approval has not been obtained by
____________, 1998, this Agreement shall terminate and the fees paid
by the Trust into the escrow account (and interest thereon) shall be
paid to the Trust.
8. ADVERTISING MATERIAL. The Trust will not approve or authorize the use or
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distribution, in connection with the offering of shares of the Fund 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.
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(a) DURATION. Except as provided in Section 7(c) above, this Agreement
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shall remain in force until ________, 2000 and from year to year
thereafter, but only so long as such 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
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payment of any penalty by (a) the Trust, upon not more than 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
Fund (as defined in the Act) and (b) the Investment Adviser upon not
more than sixty (60) days notice in writing to the Trust.
(c) AUTOMATIC TERMINATION. This Agreement will automatically and
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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
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in any way limit or restrict the Investment Adviser or any of its officers,
directors, Managing Directors 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, on behalf of the Fund, by the Investment
Adviser will be used solely for the benefit of the Fund. The Trust recognizes
that Investment Adviser, in effecting transactions for its 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
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neither the Investment Adviser nor any of its affiliates acts as 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
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may terminate any series of the Trust, and may create new series.
13. INDEPENDENT CONTRACTOR. The Investment Adviser is an independent
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contractor and not an employee of the Trust for any purpose.
14. ENTIRE AGREEMENT. This Agreement states the entire agreement of the
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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.
15. NOTICES. Any notices sent pursuant to this Agreement may be sent by
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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:
TOMORROW FUNDS RETIREMENT TRUST
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, L.L.C.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
16. GOVERNING LAW. This Agreement and all performance hereunder shall be
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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.
17. MISCELLANEOUS. The captions in this Agreement are included for
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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.
TOMORROW FUNDS RETIREMENT TRUST,
on behalf of TOMORROW MEDIUM-TERM RETIREMENT
FUND
By:________________________________
Its: ______________________________
XXXXX, XXXX & XXXXX, L.L.C.
By:________________________________
Its: _______________________________
