Exhibit 5
ADVISORY CONTRACT
THIS AGREEMENT made this 1st day of March, 1997, by and between EXECUTIVE
INVESTMENT ADVISORS, INC., a Pennsylvania corporation, (hereinafter referred to
as the "Adviser"), and TRIUMPH FUNDS, INC. a Pennsylvania corporation
(hereinafter referred to as the "Fund").
WHEREAS, the Fund is an open-end management investment company as that term is
defined in the Investment Company Act of 1940, as amended, and is registered as
such with the U.S. Securities and Exchange Commission; and
WHEREAS, the Adviser is in the business of rendering investment advisory,
statistical and research services, and is registered as an investment adviser
with the U.S. Securities and Exchange Commission under the Investment Adviser's
Act of 1940, as amended; and
WHEREAS, the parties desire to provide for continuing services by the Adviser
to the Fund pursuant to the terms and conditions hereinafter set forth,
NOW, THEREFORE, in consideration of the premises, and intending to be legally
bound, the parties hereto agree as follows:
1. The Fund hereby retains and appoints the Adviser as its investment adviser
and portfolio manager to render research, statistical and advisory services to
the Fund, and to supervise the investments of the Fund for the period and upon
the terms herein set forth, subject to the direction and control of the Board of
Directors of the Fund. The Adviser accepts such employment and agrees during
such period to render the services and to assume the obligations herein set
forth for the compensation herein provided.
2. The Adviser in its supervision of the investments of the Fund will be
guided by the Fund's fundamental investment policies and the provisions and
restrictions contained in the Charter and By-Laws of the Fund as set forth in
the Fund's registration statement, and exhibits thereto, as may be filed with
the U.S. Securities and Exchange Commission (the "Commission"), all subject to
the applicable provisions of the Investment Company Act of 1940, as amended (the
"Act").
3. The Fund will pay, and is solely responsible, for its own expenses
including, without limitation, interest charges, taxes, costs of purchasing and
selling securities for its portfolio, rent, expenses of redemption of shares,
auditing and legal
expenses; expenses attributable to printing prospectuses directors' fees and
expenses necessarily incurred by a director in attendance at directors' meeting;
expenses of administrative personnel and administrative series, custodian fees;
fees of transfer agents, registrar and dividend disbursing agents; the cost of
stock certificates and corporate reports; all other printing expenses; costs in
connection with Board of Director's meetings and the annual or special meetings
of shareholders, including proxy material preparation and distribution, filing
fees, dues, insurance premiums, miscellaneous management and operating expenses
and expenses of an extraordinary and nonrecurring nature.
In no event shall the Adviser be responsible for the payment or reimbursement
of any Fund expense of any kind what-so-ever.
4. Fund Management is solely responsible for the day-to-day operations of the
Fund, maintaining compliance with the Securities Act of 1933, the Investment
Company Act of 1940, Section 851 of the Internal Revenue Code of 1986, as
amended, and any law or regulation of any governmental agency having
jurisdictional over the Fund. The Adviser shall be held harmless and the Fund
will indemnify the Adviser for any fines or damages that may be levied or
charged to the Adviser and for any expenses incurred by the Adviser, including
but not limited to legal fees, that may arise as a result of any violation or
error committed by Fund Management to any party.
5. Subject to the provisions of Paragraph 7 hereof, the Fund agrees to pay to
the Adviser for its services rendered during the preceding month thereunder on
the first business day each month during the term of the Agreement a cash fee in
an amount determined by applying the following monthly rates to the average
daily net asset value of the Fund during the preceding month, determined in the
manner used for the determination of the offering price of the Fund's shares:
Equivalent Average Daily
Monthly Rate Annual Rate Net Asset Values
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1/12 of 1% 1% On the first $25 million
1/16 of 1% 3/4 of 1% On the next $75 million
5/96 of 1% 5/8 of 1% On amounts over $100 million
6. The term of this Agreement shall begin on the date first above written and
shall continue in effect for two years from that date and from year-to-year
thereafter, subject to the provisions for termination and all of the other terms
and conditions hereof, if; (a) such continuation shall be specifically approved
at least annually by the vote of a majority of the directors who are not parties
to such contract or interested persons of any such party to such contract (other
than as directors of the Fund) cast in person at a meeting called for that
purpose, or by a vote of the majority of the outstanding voting
securities of the Fund, and (b) the Adviser shall not have notified the Fund in
writing at least sixty (60) days prior to the anniversary date of this Agreement
in any year hereafter that it does not desire such continuation.
7. Notwithstanding anything to the contrary herein, the Agreement may be
terminated at any time, without the payment of any penalty, by the directors of
the Fund or by a vote of a majority of the outstanding voting securities of the
Fund on sixty (60) days written notice to the Adviser.
8. This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" for this purpose having the meaning defined in
Section 2(a)(4) of the 0000 Xxx.
9. The Adviser may employ or contract with such other person or persons,
corporation or corporations at its own cost and expense as it shall determine in
order to assist it in carrying out this Agreement; provided, however, that to
the extent that any such employment or contract constitutes such other person or
persons, corporation or corporations to be an investment adviser to the Fund
within the meaning of the 1940 Act, such employment or contracts shall be
subject to the approval of the Fund's shareholders in the manner provided by
such Act, prior to its effectiveness.
10. The adviser shall not be liable to the Fund for anything done or omitted
by it, except acts or omissions involving willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties imposed on it by this Agreement.
11. The services of the Adviser herein provided are not to be deemed
exclusive and, so long as its services hereunder shall not be impaired thereby,
should the Adviser so desire, it may sponsor, promote, and provide investment
advisory and management series to one or more investment companies other than
the Fund.
12. This Agreement may be amended at any time by agreement of the parties,
provided that the amendment shall be approved by the vote of a majority of
directors of the Fund, including a majority of directors who are not parties to
this Agreement or interested persons of any such party to this Agreement (other
than as directors of the Fund) cast in person at a meeting called for that
purpose.
IN WITNESS WHEREOF, the parties have caused this Investment Advisory Contract
to be executed on their behalf by their duly authorized officers and their
corporate seals to be affixed hereto as of the date first above written.
The Adviser: The Fund:
EXECUTIVE INTESTMENT ADVISORS, TRIUMPH FUNDS, INC.
INC.
By:/s/ Xxxxx X. Xxxxxxxx By:/s/ Xxxxxxx Xxxxxxx
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Xxxxx X. Xxxxxxxx, President Xxxxxxx Xxxxxxx, President
