INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of the __ day of August, 1998, by and between WPG
INTERNATIONAL FUND, a Massachusetts business trust (the "Trust"), 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, 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 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 managing directors,
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 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; 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.
6. LIMITATION OF LIABILITY.
(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 Subsections (b) and (c) 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 0.50% of
average daily net assets while such assets are less
than $15 million, 0.85% of average daily net assets
while such assets are between $15 million and $20
million and 1.00% of average daily net assets while
such assets are $20 million or more. 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 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) 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.
(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 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. Except as provided in Section 7(c) above,
this Agreement 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 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 Trust (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 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 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 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 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 may terminate any series of the Trust, and may
create new series.
13. INDEPENDENT CONTRACTOR. The Investment Adviser is an
independent contractor and not an employee of the Trust for
any purpose.
14. 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.
15. 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:
WPG 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, 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 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
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.
WPG INTERNATIONAL FUND
By:________________________________
Its:
XXXXX, XXXX & XXXXX, L.L.C.
By:________________________________
Its:
