INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT made this ____ day of
___________________, 1985 between The Rightime Fund, Inc., a Maryland
corporation (the "Fund"), and Rightime Econometrics, Inc., a
Pennsylvania corporation (the "Advisor").
BACKGROUND
The Fund is a diversified open-end management investment company
registered under the Investment Company Act of 1940 as amended (the
"1940 Act"). The Fund desires to retain the Advisor to render
investment advisory services to the Fund, and the Advisor is willing to
render such services on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The Fund hereby appoints the Advisor to act as investment
advisor to the Fund for the period and on the terms set forth in this
Agreement. The Advisor accepts such appointment and agrees to render
the services herein described, for the compensation herein provided.
2. Subject to the supervision of the Board of Directors of the
Fund, the Advisor shall manage the investment operations of the Fund and
the composition of the Fund's portfolio, including the purchase,
retention and disposition thereof, in accordance with the Fund's
investment objectives, policies and restrictions as stated in and
limited by the statements contained in the various documents filed with
the U. S. Securities and Exchange Commission ("the Commission") as such
documents may from time to time be amended and subject to the following
understandings:
(a) The Advisor shall provide supervision of the Fund's
investments and determine from time to time what investments or
securities, including futures contracts, will be purchased, retained,
sold or loaned by the Fund, and what portion of the assets will be
invested, hedged, or held uninvested as cash.
(b) The Advisor shall use its best judgment in the performance
of its duties under this Agreement.
(c) The Advisor, in the performance of its duties and
obligations under this Agreement, shall act in conformity with the
Articles of Incorporation, By-Laws and Prospectus of the Fund and with
the instructions and directions of the Board of Directors of the Fund
and will conform to and comply with the requirements of the 1940 Act and
all other applicable federal and state laws and regulations.
(d) The Advisor shall determine the securities to be purchased
or sold by the Fund and will place orders pursuant to its determinations
with or through such persons, brokers or dealers in conformity with the
policy with respect to brokerage as set forth in the Fund's Registration
Statement and Prospectus or as the Board of Directors may direct from
time to time. In providing the Fund with investment supervision., it is
recognized that the Advisor will give primary consideration to securing
most favorable price and efficient execution. Consistent with this
policy, the Advisor may consider the financial responsibility, research
and investment information and other services provided by brokers or
dealers who may effect or be a party to any such transaction or other
transactions to which other clients of the Advisor may be a party. It
is understood that neither the Fund nor the Advisor has adopted a
formula for allocation of the Fund's investment transaction business.
It is also understood that it is desirable for the Fund that the Advisor
have access to supplemental investment and market research and security
and economic analysis provided by brokers who may execute brokerage
transactions at a higher cost to the Fund than may result when
allocating brokerage to other brokers on the basis of seeking the most
favorable price and efficient execution. Therefore, the Advisor is
authorized to place orders for the purchase and sale of securities for
the Fund with such brokers, subject to review by the Fund's Board of
Directors from time to time with respect to the extent and continuation
of this practice. It is understood that the services provided by such
brokers may be useful to the Advisor in connection with its services to
other clients.
On occasions when the Advisor deems the purchase or sale of a
security to be in the best interest of the Fund as well as other
clients, the Advisor, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the
securities to be so sold or purchased in order to obtain the most
favorable price or lower brokerage commissions and efficient execution.
In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the
Advisor in the manner it considers to be the most equitable and
consistent with its fiduciary obligations to the Fund and to such other
clients.
(e) The Advisor shall maintain all books and records with
respect to the Fund's securities transactions required by subparagraphs
(b)(5), (6) and (11) and paragraph (f) of Rule 31a-1 under the 1940 Act
and shall render to the Fund's Board of Directors such periodic.and
special reports as the Board may reasonably request.
(f) The Advisor shall provide the Fund's custodian and the Fund
on each business day with information relating to all transactions
concerning the Fund's assets.
(g) The investment management services provided by the Advisor
hereunder are not to be deemed exclusive, and the Advisor shall be free
to render similar services to others. While information and
recommendations supplied to the Fund shall, in the Advisor's judgment,
be appropriate under the circumstances and in light of investment
objectives and policies of the Fund, they may be different from the
information and recommendations supplied to other investment companies
and customers. The Fund shall be entitled to equitable treatment under
the circumstances in receiving information, recommendations and any
other services, but the Fund shall not be entitled to receive
preferential treatment as compared with the treatment given to any other
investment company or customer.
(h) The Advisor shall perform such other services as are
reasonably incidental to the foregoing duties.
3. The Fund has delivered to the Advisor copies of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
(a) Articles of Incorporation of the Fund, filed with the
Secretary of the State of Maryland (such Articles of Incorporation, as
in effect on the date hereof and as amended from time to time, are
herein called the "Articles of Incorporation");
(b) By-Laws of the Fund (such By-Laws, as in effect on the date
hereof and as amended from time to time, are herein called the "By-
Laws");
(c) Certified resolutions of the Board of Directors of the Fund
authorizing the appointment of the Advisor and approving the form of
this Agreement;
(d) Registration Statement under the 1940 Act and the Securities
Act of 1933, as amended, on Form N-1A (the "Registration Statement"), as
filed with the Commission relating to the Fund and shares of the Fund's
common stock and all amendments thereto;
(e) Notification of Registration of the Fund under the 1940 Act
on Form N-8A as filed with the Commission and all amendments thereto;
and
(f) Prospectus of the Fund (such Prospectus, as currently in
effect and as amended or supplemented from time to time, being herein
called the "Prospectus").
(g) Any other documents filed with the Commission. The Advisor
shall have no responsibility or liability for the accuracy or
completeness of the Fund's Registration Statement under the 1940 Act or
the Securities Act of 1933 except for information supplied by the
Advisor for inclusion therein. The Fund agrees to indemnify the Advisor
to the full extent permitted by the Fund governing instruments.
4. The Advisor shall authorize and permit any of its directors,
officers and employees who may be elected as directors or officers of
the Fund to serve in the capacities in which they are elected. Services
to be furnished by the Advisor under this Agreement may be furnished
through the medium of any of such directors, officers or employees.
5. The Advisor agrees that no officer or director of the Advisor
will deal for or on behalf of the Fund with himself as principal or
agent, or with any corporation, partnership or other person in which he
may have a financial interest, except that this shall not prohibit:
(a) officers and directors of the Advisor from having a
financial interest in the Fund or in the Advisor.
(b) The purchase of securities for the Fund, or the sale of
securities owned by the Fund, through a security broker or dealer, one
or more of whose partners, officers or directors is an officer or a
director of the Advisor, provided such transactions are handled in the
capacity of broker only and provided commissions charged do not exceed
customary brokerage charges for such services.
6. If any occasion should arise in which the Advisor or any of its
officers or directors advises persons concerning the shares of the Fund,
the Advisor or such officer or director will act solely on its, her or
his own behalf and not in any way on behalf of the Fund.
7. The Advisor agrees that, except as herein otherwise expressly
provided, neither it nor any of its officers or directors shall at any
time during the period of this Agreement make, accept or receive,
directly or indirectly, any fees, profits or emoluments of any character
in connection with the purchase or sale of securities (except securities
issued by the Fund) or other assets by or for the Fund.
8. The Advisor shall keep the Fund's books and records required to
be maintained by it pursuant to paragraph 2 hereof. The Advisor agrees
that all records which it maintains for the Fund are the property of the
Fund and it will surrender promptly to the Fund any of such records upon
the Fund's request. The Advisor further agrees to preserve for the
periods prescribed by Rule 31a-2 of the Commission under the 1940 Act
any such records as are required to be maintained by the Advisor
pursuant to paragraph 2 hereof.
9. During the term of this Agreement, the Advisor will pay (i)
the salaries and expenses of all its personnel, and (ii) all expenses
incurred by it in the ordinary course of performing its duties
hereunder, but not expenses assumed by the Administrator of the Fund or
the Fund pursuant to the Administration Agreement. All costs and
expenses not expressly assumed by the Advisor under this Agreement shall
be paid by the Administrator or the Fund, including but not limited to:
(i) interest and taxes, including but not limited to all issue or
transfer taxes chargeable to the Fund in connection with its securities
transactions; (ii) brokerage commissions; (iii) insurance premiums; (iv)
compensation and expenses of the Board of Directors of the Fund; (v)
legal and audit expenses; (vi) fees and expenses of the Fund's
Administrator, custodian, distributor, transfer agent and accounting
services agents; (vii) expenses incident to the issuance of shares,
including issuance on the payment of, or reinvestment of, dividends;
(viii) fees and expenses incident to the registration under Federal or
State securities laws of the Fund or its shares; (ix) expenses of
preparing, printing, and mailing reports and notices and proxy material
to shareholders of the Fund; (x) all other expenses incidental to
holding meetings of the Fund's directors and shareholders and all
allocable communications expenses with respect to investor services and
to preparing, printing, and mailing prospectuses and reports to
shareholders in the amount necessary for distribution to the
shareholders; (xi) dues or assessments of or contributions to any trade
association of which the Fund is a member; (xii) such non-recurring
expenses as may arise, including litigation affecting the Fund and the
legal obligations which the Fund may have to indemnify its officers and
directors with respect thereto; (xiii) all expenses which the Fund
agrees to bear in any distribution agreement or in any plan adopted by
the Fund pursuant to Rule 12b-1 under the Act; and (xiv) all corporate
fees payable by the Fund to federal, state or other governmental
agencies.
10. For the services provided and the expenses assumed pursuant to
this Agreement, the Fund will pay to the Advisor as full compensation
therefor a fee at an annualized rate of .50 of one percent (.50%) of the
Fund's average daily net assets (specifically 1/24th of 1% per month of
the average daily net assets). This fee will be computed daily as of
the close of business and will be paid to the Advisor monthly within ten
(10) business days after the last day of each month and such advisory
fee shall be adjusted, if necessary, at the time of the payment due in
the last month in the fiscal year of the Fund. The Advisory Fee shall
be prorated for any fraction of a month at the commencement or
termination of this Agreement.
11. In the event the expenses of the Fund for any fiscal year
(including the fees payable to the Advisor and the Fund's administrator,
but excluding interest, taxes, brokerage commissions, distribution fees,
amortization of organization expenses and litigation and indemnification
expenses and other extraordinary expenses not incurred in the ordinary
course of the Fund's business) exceed the limits set by applicable
regulation of state securities commissions, if any, the compensation due
to the Advisor hereunder will be reduced by twenty percent (20%) of the
amount of such excess. If for any month such expenses exceed such
limitation after giving effect to the above reduction of the fees
payable to the Advisor and the Fund's administrator, the payment to the
Advisor for that month will be reduced or postponed so that at no time
will there be any accrued but unpaid liability under this expense
limitation. Any such reductions or payments are subject to readjustment
during the year, and the Advisor's obligation hereunder will be limited
to the amount of its fee paid or accrued with respect to such fiscal
year.
12. The Advisor shall give the Fund the benefit of its best
judgment and effort in rendering service hereunder, but the Advisor
shall not be liable for any loss sustained by reason of the purchase,
sale or retention of any securities or hedging instrument, whether or
not such purchase, sale or retention shall have been based upon its own
investigation or upon investigation and research made by any other
individual, firm or corporation. The Advisor shall not be liable for
any error of judgment or mistake of law or for any loss suffered by the
Fund in connection with the matters to which this Agreement relates,
except a loss resulting from a breach of fiduciary duty with respect to
the receipt of compensation for services (in which case any award of
damages shall be limited to the period and the amount set forth in
Section 36(b)(3) of the 0000 Xxx) or a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Any person employed by the
Advisor, who may be or become an employee of and paid by any other
entity affiliated with the Fund, such as the administrator, distributor,
or custodian to the Fund, shall be deemed, when acting within the scope
of his employment by such other affiliated entity, to be acting in such
employment solely for such other affiliated entity and not as the
Advisor's employee or agent.
13. This Agreement shall continue in effect for a period of more
than two (2) years from the date hereof only so long as such continuance
is specifically approved at least annually in conformity with the
requirements of the 1940 Act; provided, however, that this Agreement may
be terminated by the Fund at any time, without the payment of any
penalty, by the Board of Directors of the Fund or by vote of a majority
of the outstanding voting securities (as defined in the 0000 Xxx) of the
Fund, or by the Advisor at any time, without the payment of any penalty,
on not more than sixty (60) days' nor less than thirty (30) days'
written notice to the other party. This Agreement shall terminate
automatically in the event of its assignment (as defined in the 1940
Act).
14. Nothing in this Agreement shall limit or restrict the right of
any of the Advisor's directors, officers, or employees who may also be a
director, officer or employee of the Fund to engage in any other
business or to devote his time and attention in part to the management
or other aspects of any business, whether of a similar or a dissimilar
nature, nor limit or restrict the Advisor's right to engage in any other
business or to render services of any kind to any other corporation,
firm, individual or association. Nothing in this Agreement shall
prevent the Advisor or any affiliated person (as defined in the 0000
Xxx) of the Advisor from acting as investment advisor and/or principal
underwriter for any other person, firm or corporation and shall not in
any way limit or restrict the Advisor or any such affiliated person from
buying, selling, or trading any securities or hedging instruments for
its or their own accounts or for the account of others for whom it or
they may be acting, provided, however, that the Advisor expressly
represents that it will undertake no activities which, in its judgment,
will adversely affect the performance of its obligations to the Fund
under the Agreement.
15. Neither this Agreement nor any transaction made pursuant
hereto shall be invalidated or in any way affected by the fact that
directors, officers, agents and/or shareholders of the Fund are or may
be interested in the Advisor, or any successor or assignee thereof, as
directors, officers, shareholders or otherwise; that directors,
officers, shareholders or agents of the Advisor are or may be interested
in the Fund as directors, officers, shareholders or otherwise; or that
the Advisor or any successor or assignee, is or may be interested in the
Fund as shareholders or otherwise; provided, however, that neither the
Advisor nor any officer or director of the Advisor or of the Fund shall
sell to or buy from the Fund any property or security other than a
security issued by the Fund, except in accordance with an applicable
order or exemptive rule of the Commission.
16. Except as otherwise provided herein or authorized by the Board
of Directors of the Fund from time to time, the Advisor shall for all
purposes herein be deemed to be an independent contractor and, except as
expressly provided or authorized in this Agreement, shall have no
authority to act for or represent the Fund in any way or otherwise be
deemed an agent of the Fund. The Fund and the Advisor are not partners
or joint venturers with each other and nothing herein shall be construed
so as to make them such partners or joint venturers or impose any
liability as such on either of them.
17. During the term of this Agreement, the Fund agrees to furnish
the Advisor at its principal office with all prospectuses, proxy
statements, reports to stockholders, sales literature, or other material
prepared for distribution to stockholders of the Fund or the public,
which refer to the Advisor in any way, prior to use thereof and not to
use such material if the Advisor reasonably objects in writing within
five (5) business days (or such other time as may be mutually agreed)
after receipt thereof. In the event of termination of this Agreement,
the Fund will continue to furnish to the Advisor copies of any of the
above mentioned materials which refer in any way to the Advisor. The
Fund shall furnish or otherwise make available to the Advisor such other
information relating to the business affairs of the Fund as the Advisor
at any time, or from time to time, reasonably requests in order to
discharge its obligations hereunder. The Fund agrees that, in the event
that the Advisor ceases to be the Fund's investment advisor for any
reason, the Fund will (unless the Advisor otherwise agrees in writing)
promptly take all necessary steps to propose to the shareholders at the
next regular meeting that the Fund change to a name not including the
word "Rightime." The Fund agrees that the word "Rightime" in its name
is derived from the name of the Advisor and is the property of the
Advisor for copyright and all other purposes and that therefore such
word may be freely used by the Advisor as to other investment activities
or other investment products.
18. This Agreement may be amended by mutual consent, but the
consent of the Fund must be obtained in conformity with the requirements
of the 1940 Act.
19. This Agreement shall be subject to all applicable provisions
of law, including, without limitation, the applicable provisions of the
1940 Act.
20. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
21. Compensation to be paid to the Advisor hereunder shall be
separate and distinct from organizational expenses, if any, to be
reimbursed to the Advisor.
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.
THE RIGHTIME FUND, INC.
By:________________________________
President
[Corporate Seal] Attest:___________________________
Secretary
RIGHTIME ECONOMETRICS, INC.
By:________________________________
President
[Corporate Seal] Attest:___________________________
Secretary
197790.1
