AMENDMENT TO
INVESTMENT ADVISORY AGREEMENT
XXXXX, XXXX & XXXXX INTERNATIONAL FUND
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration, XXXXX, XXXX & XXXXX (the "Adviser") and XXXXX,
XXXX & XXXXX INTERNATIONAL FUND, a Massachusetts business trust (the "Fund"),
hereby amend the Investment Advisory Agreement dated May 1, 1993 between the
Adviser and the Fund to reduce the annual rate of compensation payable
thereunder by the Fund to the Adviser from 1.00% of the Fund's average daily net
assets so that the annual rate of the advisory fee shall be (i) 0.50% of the
Fund's average daily net assets when the Fund's net assets are less than $15
million, (ii) 0.85% of average daily net assets when the Fund's net assets are
$15 million or more but are less than $20 million, and (iii) 1.00% of average
daily net assets when the Fund's net assets are $20 million or more. This
Amendment shall be effective as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the 19th day of October, 1994.
XXXXX, XXXX & XXXXX INTERNATIONAL FUND
By:
Its:
XXXXX, XXXX & XXXXX
By:
Its:
INVESTMENT ADVISORY AGREEMENT
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XXXXX, XXXX & XXXXX INTERNATIONAL FUND
AGREEMENT made as of the 1st day of May, 1993, by and between XXXXX,
XXXX & XXXXX INTERNATIONAL 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
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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 ByLaws 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.
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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 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 1.00% 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
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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
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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
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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:
XXXXX, XXXX & XXXXX INTERNATIONAL 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.
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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.
XXXXX, XXXX & XXXXX INTERNATIONAL FUND
By:_________________________________
Its:
XXXXX, XXXX & XXXXX
By:_________________________________
Its:
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