Exhibit 5
PROFESSIONALLY MANAGED PORTFOLIOS
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this day of , 1996 by and between
PROFESSIONALLY MANAGED PORTFOLIOS (the "Trust"), a Massachusetts
business trust and [ ], a [ ]
corporation (the "Advisor").
WITNESSETH:
WHEREAS, a series of the Trust having separate assets and liabilities
has been created entitled the [ ] Fund (the "Fund"); and
WHEREAS, it is therefore desirable to have an investment advisory
agreement (i.e., this Agreement) relating to the Fund, which agreement will
apply only to this Fund;
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed by and among the parties hereto as
follows:
l. In General
The Advisor agrees, all as more fully set forth herein, to act as investment
adviser to the Trust with respect to the investment of the assets of the Fund
and to supervise and arrange the purchase and sale of securities held in the
portfolio of the Fund.
2. Duties and Obligations of the Advisor with respect to
Investment of Assets of the Fund.
(a) Subject to the succeeding provisions of this section and subject to
the direction and control of the Board of Trustees of the Trust, the Advisor
shall:
(I) Decide what securities shall be purchased or sold by the
Trust with respect to the Fund and when; and
(ii) Arrange for the purchase and the sale of securities held
in the portfolio of the Fund by placing purchase and sale orders for the Trust
with respect to the Fund.
(b) Any investment purchases or sales made by the Advisor shall at all
times conform to, and be in accordance with, any requirements imposed by: (l)
the provisions of the 1940 Act and of any rules or regulations in force
thereunder; (2) any other applicable provisions of law; (3) the provisions of
the Declaration of Trust and By-Laws of the Trust as amended from
time to time; (4) any policies and determinations of the Board of Trustees of
the Trust; and (5) the fundamental policies of the Trust relating to the Fund,
as reflected in the Trust's registration statement under the 1940 Act (including
by reference the Statement of Additional Information) as such registration
statement is amended from time to time, or as amended by the shareholders of the
Fund.
(c) The Advisor shall give the Trust the benefit of its best judgment
and effort in rendering services hereunder, but the Advisor shall not be liable
for any loss sustained by reason of the purchase, sale or retention of any
security whether or not such purchase, sale or retention shall have been based
on its own investigation and research or upon investigation and research made by
any other individual, firm or corporation, if such purchase, sale or retention
shall have been made and such other individual, firm or corporation shall have
been selected in good faith. Nothing herein contained shall, however, be
construed to protect the Advisor against any liability to the Trust or its
security holders by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reason of its reckless
disregard of obligations and duties under this Agreement.
(d) 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 adviser or manager 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 for
its or their own accounts or the accounts 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 Trust under this Agreement.
(e) It is agreed that the Advisor shall have no responsibility or
liability for the accuracy or completeness of the Trust's Registration Statement
under the 1940 Act or the Securities Act of 1933 except for information supplied
by the Advisor for inclusion therein. The Trust may indemnify the Advisor to the
full extent permitted by the Trust's Declaration of Trust.
(f) The Fund may use the name [ ] Fund or any name derived from or using
the name [ ] only for so long as this Agreement or any extension, renewal or
amendment hereof remains in effect. At such time as such an agreement shall no
longer be in effect, the Fund shall cease to use such a name or any other name
connected with the Advisor.
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3. Broker-Dealer Relationships
The Advisor is responsible for decisions to buy and sell securities for the
Fund, broker-dealer selection, and negotiation of brokerage commission rates.
The Advisor's primary consideration in effecting a securities transaction will
be execution at the most favorable price. In selecting a broker-dealer to
execute each particular transaction, the Advisor will take the following into
consideration: the best net price available; the reliability, integrity and
financial condition of the broker-dealer; the size of and difficulty in
executing the order; and the value of the expected contribution of the
broker-dealer to the investment performance of the Fund on a continuing basis.
Accordingly, the price to the Fund in any transaction may be less favorable than
that available from another broker-dealer if the difference is reasonably
justified by other aspects of the portfolio execution services offered. Subject
to such policies as the Board of Trustees of the Trust may determine, the
Advisor shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of its having
caused the Fund to pay a broker or dealer that provides brokerage or research
services to the Advisor an amount of commission for effecting a portfolio
transaction in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction, if the Advisor determines in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the Advisor's overall
responsibilities with respect to the Trust. The Advisor is further authorized to
allocate the orders placed by it on behalf of the Fund to such brokers or
dealers who also provide research or statistical material, or other services, to
the Trust, the Advisor, or any affiliate of either. Such allocation shall be in
such amounts and proportions as the Advisor shall determine, and the Advisor
shall report on such allocations regularly to the Trust, indicating the
broker-dealers to whom such allocations have been made and the basis therefor.
The Advisor is also authorized to consider sales of shares as a factor in the
selection of brokers or dealers to execute portfolio transactions, subject to
the requirements of best execution, i.e., that such brokers or dealers are able
to execute the order promptly and at the best obtainable securities price.
4. Allocation of Expenses
The Advisor agrees that it will furnish the Trust, at the Advisor's expense,
with office space and facilities, equipment and clerical personnel necessary for
carrying out its duties under this Agreement. The Advisor will also pay all
compensation of any Trustees, officers and employees of the Trust who are
affiliated persons of the Advisor. All operating costs and
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expenses relating to the Fund not expressly assumed by the Advisor under this
Agreement shall be paid by the Trust from the assets of the Fund, including, but
not limited to (I) interest and taxes; (ii) brokerage commissions; (iii)
insurance premiums; (iv) compensation and expenses of the Trust's Trustees other
than those affiliated with the Advisor or the Manager; (v) legal and audit
expenses; (vi) fees and expenses of the Trust's custodian, shareholder servicing
or transfer agent and accounting services agent; (vii) expenses incident to the
issuance of the Fund's 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 Trust or the shares
of the Fund; (ix) expenses of preparing, printing and mailing reports and
notices and proxy material to shareholders of the Trust; (x) all other expenses
incidental to holding meetings of the Trust's shareholders; (xi) dues or
assessments of or contributions to the Investment Company Institute or any
successor; (xii) such non-recurring expenses as may arise, including litigation
affecting the Trust and the legal obligations which the Trust may have to
indemnify its officers and Trustees with respect thereto; and (xiii) all
expenses which the Trust or the Fund agrees to bear in any distribution
agreement or in any plan adopted by the Trust and/or a Fund pursuant to Rule
12b-1 under the Act.
5. Compensation of the Advisor
(a) The Trust agrees to pay the Advisor and the Advisor agrees to accept as
full compensation for all services rendered by the Advisor hereunder, an annual
management fee, payable monthly and computed on the value of the net assets of
the Fund as of the close of business each business day at the annual rate of [
]% of such net assets.
(b) In the event the expenses of the Fund (including the fees of the
Advisor and amortization of organization expenses but excluding interest, taxes,
brokerage commissions, extraordinary expenses and sales charges and any
distribution fees) for any fiscal year exceed the limits set by applicable
regulations of state securities commissions where the Fund is registered or
qualified for sale, the Advisor will reduce its fees by the amount of such
excess. Any such reductions are subject to readjustment during the year. The
payment of the advisory fee at the end of any month will be reduced or postponed
or, if necessary, a refund will be made to the Fund so that at no time will
there be any accrued but unpaid liability under this expense limitation. The
Advisor may reduce any portion of the compensation or reimbursement of expenses
due to it under this agreement, or may agree to make payments to limit the
expenses which are the responsibility of the Fund. Any such reduction or payment
shall be applicable only to such specific reduction or payment and shall not
constitute an agreement to reduce any
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future compensation or reimbursement due to the Advisor hereunder or to continue
future payments. Any fee withheld from the Advisor under this paragraph shall be
reimbursed by the Fund to the Advisor to the extent permitted by the applicable
state law if the aggregate expenses for the next succeeding fiscal year do not
exceed the applicable state limitation or any more restrictive limitation to
which the Advisor has agreed.
6. Duration and Termination
(a) This Agreement shall go into effect on the effective date of the
Post-Effective Amendment of the Registration Statement of the Trust covering the
shares of the Fund and shall, unless terminated as hereinafter provided,
continue in effect for a period of two years from that date, and thereafter from
year to year, but only so long as such continuance is specifically approved at
least annually by the Trust's Board of Trustees, including the vote of a
majority of the Trustees who are not parties to this Agreement or "interested
persons" (as defined in the 0000 Xxx) of any such party cast in person at a
meeting called for the purpose of voting on such approval, or by the vote of the
holders of a "majority" (as so defined) of the outstanding voting securities of
the Fund and by such a vote of the Trustees.
(b) This Agreement may be terminated by the Advisor at any time without
penalty upon giving the Trust sixty (60) days' written notice (which notice may
be waived by the Trust) and may be terminated by the Trust at any time without
penalty upon giving the Advisor sixty (60) days' written notice (which notice
may be waived by the Advisor), provided that such termination by the Trust shall
be directed or approved by the vote of a majority of all of its Trustees in
office at the time or by the vote of the holders of a majority (as defined in
the 0000 Xxx) of the voting securities of the Trust at the time outstanding and
entitled to vote. This Agreement shall automatically terminate in the event of
its assignment (as so defined).
7. Agreement Binding Only on Fund Property
The Advisor understands that the obligations of this Agreement are not binding
upon any shareholder of the Trust personally, but bind only the Trust's
property; the Advisor represents that it has notice of the provisions of the
Trust's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Trust. This agreement has been executed by or with reference
to any Trustee in such person's capacity as a Trustee, and the Trustees shall
not be personally liable hereon.
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IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument to
be executed by duly authorized persons and their seals to be hereunto affixed,
all as of the day and year first above written.
PROFESSIONALLY MANAGED PORTFOLIOS
By
ATTEST:
[ ADVISOR ]
By
ATTEST:
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