INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 31st day of August, 1992 by and between XXXXXXX XXXXX
CONSULTS INTERNATIONAL PORTFOLIO, a Massachusetts business trust (hereinafter
referred to as the "Fund"), and, XXXXXXX XXXXX (SUISSE) INVESTMENT MANAGEMENT
S.A., a Swiss corporation (hereinafter referred to as the "Investment Adviser").
WITNESSETH:
WHEREAS, the Fund is engaged in business as a diversified open-end
management investment company registered under the Investment Company Act of
1940, as amended (hereinafter referred to as the "Investment Company Act"); and
WHEREAS, the Investment Adviser is engaged principally in rendering
investment advisory and management services and is registered as an investment
adviser under the Investment Advisers Act of 1940, and
WHEREAS, the Fund's assets will be invested primarily in an international
portfolio of securities denominated in various currencies; and
WHEREAS, the Fund desires to retain the Investment Adviser to provide
investment advisory and management services to the Fund in the manner and on the
terms hereinafter set forth; and
WHEREAS, the Investment Adviser is willing to provide investment advisory
and management services to the Fund on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Fund and the Investment Adviser hereby agree as
follows:
ARTICLE I
Duties of the Investment Adviser
The Fund hereby employs the Investment Adviser to act as an investment
adviser and manager of the Fund and to furnish, or arrange for affiliates to
furnish, the investment advisory and management services described below,
subject to the policies of, review by and oveall control of the Board of
Trustees of the Fund, for the period and on the terms and conditions set forth
in this Agreement. The Investment Adviser hereby accepts such employment and
agrees during such period, at its own expense, to render, or arrange for the
rendering of, such services and to assume the obligations herein set forth for
the compensation provided for herein. The Investment Adviser and its affiliates
shall for all purposes herein be deemed to be independent contractors and shall,
unless otherwise expressly provided or authorized, have no authority to act for
or represent the Fund in any way or otherwise be deemed agents of the Fund.
(a) Investment Advisory Services. The Investment Adviser shall provide (or
arrange for affiliates to provide) the Fund with such investment research,
advice and supervision as the latter may from time to time consider necessary
for the proper supervision of the assets of the Fund, shall furnish continuously
an investment program for the Fund and shall determine from time to time which
securities shall be purchased, sold or exchanged and what portion of the assets
of the Fund shall be held in the various securities in which the Fund invests,
options, futures, options on futures or cash, subject always to the restrictions
of the Declaration of Trust and By-Laws of the Fund, as amended from time to
time, the provisions of the Investment Company Act and the statements relating
to the Fund's investment objectives, investment policies and investment
restrictions as the same are set forth in the currently effective Prospectus and
Statement of Additional Information of the Fund under the Securities Act of
1933, as amended (the "Prospectus" and "Statement of Additional Information,"
respectively). The Investment Adviser shall make decisions for the Fund as to
the manner in which voting rights, rights to consent to corporate action and any
other rights petaining to the Fund's portfolio securities shall be exercised.
Should the Board of Trustees of the Trust at any time, however, make any
definite determination as to investment policy and notify the Investment Adviser
thereof in writing, the Investment Adviser shall be bound by such determination
for the period, if any, specified in such notice or until similarly notified
that such determination has been revoked. The Investment Adviser shall take, on
behalf of the Fund, all actions which it deems necessary to implement the
investment policies determined as provided above, and in particular to place all
orders for the purchase or sale of portfolio securities for the Fund's account
with brokers or dealers selected by it, and to that end, the Investment Adviser
is authorized as the agent of the Fund to give instructions to the custodian of
the Fund as to deliveries of securities and payments of cash for the account of
the Fund. In connection with the selection of such brokers or dealers and the
placing of such orders with respect to assets of the Fund, the Investment
Adviser is directed at all times to seek to obtain execution and prices within
the policy guidelines determined by the Trustees and set forth in the Prospectus
and Statement of Additional Information. Subject to this requirement and the
provisions of the Investment Company Act, the Securities Exchange Act of 1934,
as amended, and other applicable provisions of law, the Investment Adviser may
select brokers or dealers with which it or the Fund is affiliated.
(b) Management Services. The Investment Adviser shall perform (or arrange
for the performance by affiliates of) certain management services necessary for
the operation of the Fund as hereinafter provided. The Investment Adviser shall
provide the Fund with office space, facilities, equipment and necessary
personnel and such other services as the Investment Adviser, subject to review
by the Board of Trustees of the Fund, shall from time to time determine to be
necessary or useful to perform its obligations under this Agreement. The
Investment Adviser shall generally monitor the Fund's compliance with investment
policies and restrictions as set forth in the currently effective Prospectus and
Statement of Additional Information. The Investment Adviser shall make reports
to the Board of Trustees of the Fund of its performance of obligations hereunder
and furnish advice and recommendations with respect to such other aspects of the
business and affairs of the Fund as it shall determine to be desirable.
(c) Sub-Advisers. In carrying out its responsibilities hereunder, the
Investment Adviser may employ, retain or otherwise avail itself of the services
of other persons or entities including without limitation, affiliates of the
Investment Adviser, on such terms as the Investment Adviser shall determine to
be necessary, desirable or appropriate. Without limiting the generality of the
foregoing, and subject to the requirements of Section 15 of the Investment
Company Act, the Investment Adviser may retain one or more sub-advisers to
manage the cash position of the Fund, at the Investment Adviser's own cost and
expense. Retention of one or more sub-advisers, or the employment or retention
of other persons or entities to perform services, shall in no way reduce the
responsibilities or obligations of the Investment Adviser under this Agreement
and the Investment Adviser shall be responsible for all acts and omissions of
such sub-advisers, or other persons or entities, in connection with the
performance of the Investment Adviser's duties hereunder.
ARTICLE II
Allocation of Charges and Expenses
(a) The Investment Adviser. The Investment Adviser assumes and shall pay
for maintaing the staff and personnel necessary to perform its obligations under
this Agreement, and shall provide the office space, facilities and necessary
personnel which it is obligated to provide under Article I hereof, and shall pay
all compensation of Officers of the Fund and all Trustees of the Fund who are
affiliated persons of the Investment Adviser.
(b) The Fund. The Fund assumes and shall pay or cause to be paid all other
expenses of the Fund (except for the expenses paid by the Distributor),
including, without limitation: taxes, expenses for legal and auditing services,
costs of printing proxies, stock certificates, shareholder reports, Prospectuses
and Statements of Additional Information, charges of the custodian, any
sub-custodian, transfer agent or administrator, expenses of portfolio
bwsactions, expenses of redemption of shares, Securities and Exchange Commission
fees, expenses of registering the shares under Federal, state and foreign laws,
fees and actual out-of-pocket expenses of Trustees who are not affiliated
persons of the Investment Adviser or any sub- adviser, accounting and pricing
costs (including the daily calculation of the net asset value), insurance,
interest, brokerage costs, litigation and other extraordinary or non-recurring
expenses, and other expenses properly payable by the Fund. The Distributor will
pay certain of the expenses of the Fund incurred in connection with the
continuous offering of shares of beneficial interest in the Fund.
ARTICLE III
Compensation of the Investment Adviser
(a) Investment Advisory Fee. For the services rendered, the facilities
furnished and expenses assumed by the Investment Adviser, the Fund shall pay to
the Investment Adviser at the end of each calendar month a fee based upon the
average daily value of the net assets of the Fund, as determined and computed in
accordance with the description of the determination of net asset value
contained in the Prospectus and Statement of Additional Information, at the
annual rate of .75 of 1.0% (.75%) of the average daily net assets of the Fund,
commencing on the day following effecfiveness hereof If this Agreement becomes
effective subsequent to the first day of a month or shall terminate before the
last day of a month, compensation for that part of the month this Agreement is
in effect shall be prorated in a manner consistent with the calculation of the
fee as set forth above. Subject to the provisions of subsection (b) hereof,
payment of the Investment Adviser's compensation for the preceding month shall
be made as promptly as possible after completion of the computations
contemplated by subsection (b) hereof. During any period when the determination
of net asset value is suspended by the Board of Trustees of the Fund, the net
asset value of a share as of the last- business day prior to such suspension
shall for this purpose be deemed to be the net asset value at the close of each
succeeding business day until it is again determined.
(b) Expense Limitations. In the event the operating expenses of the Fund,
including amounts payable to the Investment Adviser pursuant to subsection (a)
hereof, for any fiscal year ending on a date on which this Agreement is in
effect exceed the expense limitations applicable to the Fund imposed by
applicable state securities laws or regulations thereunder, as such limitations
may be raised or lowered from time to time, the Investment Adviser shall reduce
its fee by the extent of such excess and, if required pursuant to any such laws
or regulations, will reimburse the Fund in the amount of such excess; provided,
however, to the extent permitted by law, there shall be excluded from such
expenses the amount of any interest, taxes, brokerage fees and commissions,
distribution fees and extraordinary expenses (including but not limited to legal
claims and liabilities and litigation costs and any indemnification related
thereto) paid or payable by the Fund. Whenever the expenses of the Fund exceed a
pro rata portion of the applicable annual expense limitations, the estimated
amount of reimbursement under such limitations shall be applicable as an offset
against the monthly payment of the fee due to the Investment Adviser. Should two
or more such expenses limitations be applicable as at the end of the last
business day of the month, that expense limitation which results in the largest
reduction in the Investment Adviser's fee shall be applicable.
ARTICLE IV
Limitation of Liability of the Investment Adviser
The Investment Adviser shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in the management of the Fund, except for willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder. As used in this
Article IV, the term "Investment Adviser" shall include any affiliates of the
Investment Adviser performing services for the Fund contemplated hereby and
directors, officers and employees of the Investment Adviser and such affiliates.
ARTICLE V
Activities of the Investment Adviser
The services of the Investment Adviser to the Fund are not to be deemed to
be exclusive, and the Investment Adviser and each affiliate is free to render
services to others. It is understood that Trustees, officers, employees and
shareholders of the Fund are or may become interested in the Investment Adviser
and its affiliates, as directors, officers, employees, partners and shareholders
or otherwise, and that directors, officers, employees, partners and shareholders
of the Investment Adviser and its affiliates are or may become similarly
interested in the Fund, and that the Investment Adviser and directors, officers,
employees, partners and shareholders of its affiliates may become interested in
the Fund as shareholders or otherwise.
ARTICLE VI
Duration and Termination of this Agreement
This Agreement shall become effective as of the date first above written
and shall remain in force until August 31, 1994 and thereafter, but only so long
as such continuance is specifically approved at least annually by (i) the Board
of Trustees, or by the vote of a majority of the outstanding voting securities
of the Fund, and (ii) a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees of the Fund or by vote of a majority of the
outstanding voting securities of the Fund, or by the Investment Adviser, on
sixty days' written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment.
ARTICLE VII
Amendments of this Agreement
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Trustees of the Fund, or by the vote of a
majority of outstanding voting securities of the Fund, and (ii) a majority of
those Trustees who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting on
such approval.
ARTICLE VIII
Definitions of Certain Terms
The terms "vote of a majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the rules thereunder, subject, however, to such exemptions as
may be granted by the Securities and Exchange Commission under said Act.
ARTICLE IX
Governing Law
This Agreement shall be construed in acccordance with laws of the State of
New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
ARTICLE X
Personal Liability
The Declaration of Trust establishing the Fund, dated June 26, 1992, a copy
of which, together with all amendments thereto (the "Declaration"), is on file
in the office of the Secretary of the Commonwealth of Massachusetts, provides
that the name "Xxxxxx Xxxxx Consults Intemational Portfolio" refers to the
Trustees under the Declaration collectively as trustees, but not as individuals
or personally, and no Trustee, shareholder, officer, employee or agent of the
Fund shall be held to any personal liability, nor shall resort be had to their
private property for satisfaction of any obligation or claim or otherwise in
connection with the affairs of the Fund, but the 'Trust Property" only shall be
liable.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
Xxxxxxx Xxxxx Consults International
Portfolio
By /s/
XXXXXXX Xxxxx (Suisse) Investment
Management S.A
By /s/
