Exhibit 99.B(5)(b)
INVESTMENT ADVISORY AGREEMENT
This Agreement, dated as of the 25th day of July, 1996, made by and between
Trainer, Xxxxxxx First Mutual Funds, a business trust (the "Trust") operating as
an open-end, management investment company registered under the Investment
Company Act of 1940, as amended (the "Act"), on behalf of Trainer, Xxxxxxx
Emerging Growth Fund (the "Series") and Trainer, Xxxxxxx & Co., Inc., a New York
corporation with its principal offices at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
XX 00000 ( "Investment Advisor").
WHEREAS, the Trust is registered as an open-end, management investment
company under the Act; and
WHEREAS, the Trust desires to retain the Investment Advisor to furnish
investment advisory and administrative services with respect to the Series, and
the Investment Advisor is willing to so furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties as follows:
1. Appointment. The Trust hereby appoints the Investment Advisor to act
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as investment advisor to the Series for the period and on the terms set forth in
this Agreement. The Investment Advisor accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Series has furnished the Investment Advisor
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with copies of each of the following:
(a) Resolutions of the Board of Trustees authorizing the appointment
of the Investment Advisor and approving this Agreement;
(b) The Series most recent prospectus and Statement of Additional
Information (such prospectus and Statement of Additional Information, as
presently in effect and all amendments and supplements thereto, are herein
called the "Prospectus").
The Series will furnish the Investment Advisor from time to time with
copies of all amendments of or supplements to the foregoing.
3. Management Subject to the supervision of the Board of Trustees, the
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Investment Advisor will provide a continuous investment program for the Series,
including investment research and day-to-day management of the Series' assets.
The Investment Advisor will determine from time to time what securities and
other investment will be purchased, retained or sold by the Series. The
Investment Advisor will provide the services under this Agreement in accordance
with the Series' investment objective, policies and restrictions as stated in
the Prospectus and resolutions of the Board of Trustees. The Series wishes to
be informed of important developments materially affecting the Series and its
shareholders, and the Investment Advisor agrees to furnish to the Series, from
time to time, such information as may be appropriate for this purpose. The
Investment Advisor further agrees that it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission;
(b) will place orders pursuant to its investment determinations for
the Series either directly with the issuer or with any broker or dealer. In
executing portfolio transactions, the Investment Advisor will use its best
efforts to seek on behalf of the Series the best overall terms available. In
assessing the best overall terms available for any transaction, the Investment
Advisor shall consider all factors that it deems relevant, including the breadth
of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer, and the
reasonableness of the commission, if any, both for the specific transaction and
on a continuing basis. In evaluating the best overall terms available, and in
selecting the broker-dealer to execute a particular transaction, the Investment
Advisor may also consider the brokerage and research services (as those terms
are defined in Section 28 (e) of the Securities Exchange Act of 1934) provided
to the Series and any other accounts over which the Investment Advisor exercises
investment discretion. The Investment Advisor is authorized, subject to the
prior approval of the Board of Trustees, to pay a broker or dealer who provides
such brokerage and research services a commission for executing a portfolio
transaction for the Series which is in excess of the amount of commission
another broker or dealer would have charged for effecting that transaction in
such instances where the Investment Advisor determines in good faith that such
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer as viewed in terms of that particular
transaction or in terms of the overall responsibilities of the Investment
Advisor to the Series. In addition, the Investment Advisor may take into account
the sale of the Series' units in allocating purchase and sale orders for
portfolio securities to brokers or dealers (including affiliated brokers and
dealers that are affiliated with the Series, the Investment Advisor or the
principal underwriter), provided that the Investment Advisor believes that the
quality of execution and the commission are comparable to what they would be by
other qualified firms. In no instance, however, will portfolio securities be
purchased from or sold to the Investment Advisor, the principal underwriter or
any affiliated person of either the Series, the Investment Advisor or the
principal underwriter or any affiliated person of the Series, the Investment
Advisor or the principal underwriter, acting as principal in the transaction
except to the extent permitted by the Securities and Exchange Commission and the
National Association of Securities Dealers, Inc.;
(c) will maintain all books and records with respect to the Series'
securities transactions which the Series is required to maintain under
applicable laws and will furnish the Board of Trustees such periodic and special
reports as the Board may request; and
(d) will treat confidentially and as proprietary information of the
Series all records and other information relative to the Series and prior,
present or potential shareholders, and will not use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to, and approval in writing by, the
Board of Trustees, which approval shall not be unreasonably withheld and may not
be withheld where the Investment Advisor may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Board
of Trustees.
4. Services Not Exclusive. The investment management services furnished
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by the Investment Advisor hereunder are not to be deemed exclusive, and the
Investment Advisor shall be free to furnish similar services to others whether
or not for compensation so long as its services under this Agreement are not
impaired thereby.
5. Books and Records. In compliance with the requirements of Rule 31a-3
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under the 1940 Act, the Investment Advisor hereby agrees that all records which
it maintains for the Series are the property of the Series and further agrees to
surrender promptly to the Series any of such records upon the Series' request.
The Investment Advisor further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records required by Rule 31a-1 to be
maintained under the 1940 Act.
6. Expenses. During the term of this Agreement, the Investment Advisor
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will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities (including brokerage
commissions, if any) purchased for the Series.
7. Compensation. For the services provided and the expenses assumed
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pursuant to this Agreement, effective as of the date of the effectiveness of
this Agreement, the Series will pay the Investment Advisor and the Investment
Advisor will accept as full compensation therefor a fee, accrued daily and paid
monthly, at an annual rate of 1.25 of 1% of the daily net asset value of the
Series.
If in any fiscal year the aggregate expenses of the Series (as defined
under the securities regulations of any state having jurisdiction over the
Series) exceed the expense limitations of any such state, the Investment Advisor
will reimburse the Series for such excess expenses. The obligation of the
Investment Advisor to reimburse the Series hereunder is limited in any fiscal
year to the amount of its fee hereunder for such fiscal year, provided, however,
that notwithstanding the foregoing, the Investment Advisor shall reimburse the
Series for such proportion of such excess expenses regardless of the amount of
fees paid to it during such fiscal year to the extent that the securities
regulations of any state having jurisdiction over the Series so require. Such
expense reimbursement, if any, will be estimated daily and reconciled and paid
on a monthly basis.
8. Limitation of Liability. The Investment Advisor shall not be liable
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for any error of judgment or mistake of law or for any loss suffered by the
Series in connection with the performance of this Agreement, except a loss
resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful misfeasance, bad
faith or gross negligence on the part of the Investment Advisor in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
9. Duration and Termination. This Agreement will become effective at such
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time as shall have been approved by the shareholders of the Series, in
accordance with the requirements under the 1940 Act, and the existing advisory
contract with Trainer, Xxxxxxx & Co., Inc. shall have been terminated, and,
unless sooner terminated as provided herein, shall continue in effect until
September 30, 1997, and thereafter for successive periods of twelve months each
ending on September 30th of each year, provided such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Board of Trustees who are not parties to this Agreement or interested persons of
any party to this Agreement, cast in person at a meeting called for the purpose
of voting on such approval, and (b) by the Board of Trustees or by vote of a
majority of the outstanding voting securities of the Series. Notwithstanding
the foregoing, this Agreement may be terminated at any time, without the payment
of any penalty, by the Series (by vote of the Board of Trustees or by vote of a
majority of the outstanding voting securities of the Series) on sixty days'
written notice or by the Investment Advisor on ninety days' written notice.
This Agreement will immediately terminate in the event of its assignment. (As
used in this Agreement, the terms "majority of the outstanding voting
securities," "interested persons" and "assignment" shall have the same meaning
of such terms in the 1940 Act.)
10. Amendment of this Agreement. No provision of this Agreement may be
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changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Agreement shall be
effective until approved by vote of a majority of the outstanding voting
securities of the Series.
11. 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. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be affect
thereby. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and shall be governed by
Delaware law.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
Trainer, Xxxxxxx, First Mutual Funds
on behalf of
Trainer, Xxxxxxx, Emerging Growth Fund
By
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President
Trainer, Xxxxxxx & Co., Inc.
By
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Managing Director
