EXHIBIT D-1
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT (the "Agreement") made as of this ___th
day of _______ by and between THE KP FUNDS (the "Trust"), a Massachusetts
voluntary association (commonly known as a business trust) registered as an
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and XXXXXX ASSOCIATES INC. (the "Adviser"), a California
corporation with its principal place of business at 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
W I T N E S S E T H
WHEREAS, the Board of Trustees (the "Board") of the Trust has
selected the Adviser to act as investment adviser to the Trust on behalf of the
series set forth on Schedule A to this Agreement (each, a "Fund" and
collectively, the "Funds"), as such Schedule may be amended from time to time
upon mutual agreement of the parties, and to provide certain related services,
as more fully set forth below, and to perform such services under the terms and
conditions hereinafter set forth; and
WHEREAS, the Adviser may retain one or more sub-advisers (each, a
"Sub-Adviser" and collectively, the "Sub-Advisers") to render portfolio
management services to the Funds pursuant to investment sub-advisory agreements
between the Adviser and each such Sub-Adviser (each, a "Sub-Advisory Agreement"
and collectively, the "Sub-Advisory Agreements").
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Trust and the Adviser do hereby agree as follows:
1. THE ADVISER'S SERVICES.
(a) DISCRETIONARY INVESTMENT MANAGEMENT SERVICES. The Adviser shall
act as investment adviser with respect to the Funds. In such capacity, the
Adviser shall, subject to the supervision of the Board, regularly provide
the Funds with investment research, advice and supervision and shall
furnish continuously an investment program for the Funds, consistent with
the investment objectives and policies of each Fund. The Adviser shall
determine, from time to time, what securities shall be purchased for the
Funds, what securities shall be held or sold by the Funds and what portion
of the Funds' assets shall be held uninvested in cash, subject always to
the provisions of the Trust's Agreement and Declaration of Trust, By-Laws
and its registration statement on Form N-1A (the "Registration Statement")
under the 1940 Act, and under the Securities Act of 1933, as amended (the
"1933 Act"), covering Fund shares, as filed with the Securities and
Exchange Commission (the "Commission"), and to the investment objectives,
policies and restrictions of the Funds, as each of the same shall be from
time to time in effect. To carry out such obligations, the Adviser shall
exercise full discretion and act for the Funds in the same manner and with
the same force and effect as the Funds themselves might or could do with
respect to purchases, sales or other transactions, as well as with respect
to all other such things necessary or incidental to the furtherance or
conduct of such purchases, sales or other transactions. No reference in
this Agreement to the Adviser having full discretionary
authority over each Fund's investments shall in any way limit
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the right of the Board, in its sole discretion, to establish or revise
policies in connection with the management of a Fund's assets or to
otherwise exercise its right to control the overall management of a Fund.
The Adviser may delegate certain of its duties under this Agreement
with respect to a Fund to a Sub-Adviser or Sub-Advisers by entering into
Sub-Advisory Agreements with one or more Sub-Advisers and, except as
otherwise permitted under the terms of any exemptive relief granted to the
Trust and Adviser by the SEC, or by rule or regulation, the Adviser may
only enter into Sub-Advisory Agreements or materially amend Sub-Advisory
Agreements with the approval of the Board and the approval of the
shareholders of the affected Fund. The Adviser shall be responsible for
overseeing the performance of the Sub-Advisers and recommending changes in
Sub-Advisers as appropriate.
(b) COMPLIANCE. The Adviser agrees to comply with the requirements of
the 1940 Act, the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the Commodity Exchange Act and the respective
rules and regulations thereunder, as applicable, as well as with all other
applicable federal and state laws, rules, regulations and case law that
relate to the services and relationships described hereunder and to the
conduct of its business as a registered investment adviser. The Adviser
also agrees to comply with the objectives, policies and restrictions set
forth in the Registration Statement, as amended or supplemented, of the
Funds, and with any policies, guidelines, instructions and procedures
approved by the Board and provided to the Adviser. In selecting each Fund's
portfolio securities and performing the Adviser's obligations hereunder,
the Adviser shall cause the Fund to comply with the diversification and
source of income requirements of Subchapter M of the Internal Revenue Code
of 1986, as amended (the "Code"), for qualification as a regulated
investment company. The Adviser shall maintain compliance procedures that
it reasonably believes are adequate to ensure its compliance with the
foregoing. No supervisory activity undertaken by the Board shall limit the
Adviser's full responsibility for any of the foregoing.
(c) PROXY VOTING. The Board has the authority to determine how proxies
with respect to securities that are held by the Funds shall be voted, and
the Board has initially determined to delegate the authority and
responsibility to vote proxies for the Fund's securities to the Adviser.
Such responsibilities may also include exercising all applicable rights of
the Fund as a security holder in connection with corporate actions or other
transactions relating to the Fund's securities. So long as proxy voting
authority for the Fund has been delegated to the Adviser, the Adviser shall
exercise its proxy voting responsibilities. The Adviser shall carry out
such responsibility in accordance with any instructions that the Board
shall provide from time to time, and at all times in a manner consistent
with Rule 206(4)-6 under the Advisers Act and its fiduciary
responsibilities to the Trust. The Adviser shall provide periodic reports
and keep records relating to proxy voting as the Board may reasonably
request or as may be necessary for the Funds to comply with the 1940 Act
and other applicable law. Any such delegation of proxy voting
responsibility to the Adviser may be revoked or modified by the Board at
any time. The
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Adviser may delegate the authority and responsibility to vote proxies and
to exercise applicable rights of the Fund as a security holder in
connection with the Fund's securities to one or more Sub-Advisers.
The Adviser is authorized to instruct the Funds' custodian and/or broker(s)
to forward promptly to the Adviser or designate service provider copies of
all proxies and shareholder communications relating to securities held in
the portfolio of a Fund (other than materials relating to legal proceedings
against the Fund). The Adviser may also instruct the Funds' custodian
and/or broker(s) to provide reports of holdings in the portfolio of a Fund.
The Adviser has the authority to engage a service provided to assist with
administrative functions related to voting Fund proxies. The Trust shall
direct the Funds' custodian and/or broker(s) to provide any assistance
requested by the Adviser in facilitating the use of a service provider. In
no event shall the Adviser have any responsibility to vote proxies that are
not received on a timely basis. The Trust acknowledges that the Adviser,
consistent with the Adviser's written proxy voting policies and procedures,
may refrain from voting a proxy if, in the Adviser's discretion, refraining
from voting would be in the best interests of a Fund and its shareholders.
(d) RECORDKEEPING. The Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the
Funds, except as otherwise provided herein or as may be necessary for the
Adviser to supply to the Trust or its Board the information required to be
supplied under this Agreement.
The Adviser shall maintain separate books and detailed records of all
matters pertaining to Fund assets advised by the Adviser required by Rule
31a-1 under the 1940 Act (other than those records being maintained by any
administrator, custodian or transfer agent appointed by the Funds) relating
to its responsibilities provided hereunder with respect to the Funds, and
shall preserve such records for the periods and in a manner prescribed
therefore by Rule 31a-2 under the 1940 Act (the "Fund Books and Records").
The Fund Books and Records shall be available to the Board at any time upon
request, shall be delivered to the Trust upon the termination of this
Agreement and shall be available without delay during any day the Trust is
open for business.
(e) HOLDINGS INFORMATION AND PRICING. The Adviser shall provide
regular reports regarding Fund holdings, and may, on its own initiative,
furnish the Trust and its Board from time to time with whatever information
the Adviser believes is appropriate for this purpose. The Adviser agrees to
notify the Trust promptly if the Adviser reasonably believes that the value
of any security held by a Fund may not reflect fair value. The Adviser
agrees to provide upon request any pricing information of which the Adviser
is aware to the Trust, its Board and/or any Fund pricing agent to assist in
the determination of the fair value of any Fund holdings for which market
quotations are not readily available or as otherwise required in accordance
with the 1940 Act or the Trust's valuation procedures for the purpose of
calculating the Fund net asset value in accordance with procedures and
methods established by the Board.
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(f) COOPERATION WITH AGENTS OF THE TRUST. The Adviser agrees to
cooperate with and provide reasonable assistance to the Trust, any Trust
custodian or foreign sub-custodians, any Trust pricing agents and all other
agents and representatives of the Trust with respect to such information
regarding the Funds as such entities may reasonably request from time to
time in the performance of their obligations, provide prompt responses to
reasonable requests made by such persons and establish appropriate
interfaces with each so as to promote the efficient exchange of information
and compliance with applicable laws and regulations.
2. CODE OF ETHICS. The Adviser has adopted a written code of ethics
that it reasonably believes complies with the requirements of Rule 17j-1 under
the 1940 Act, which it has provided to the Trust. The Adviser shall ensure that
its Access Persons (as defined in the Adviser's Code of Ethics) comply in all
material respects with the Adviser's Code of Ethics, as in effect from time to
time. Upon request, the Adviser shall provide the Trust with a (i) copy of the
Adviser's current Code of Ethics, as in effect from time to time, and (ii)
certification that it has adopted procedures reasonably necessary to prevent
Access Persons from engaging in any conduct prohibited by the Adviser's Code of
Ethics. Annually, the Adviser shall furnish a written report, which complies
with the requirements of Rule 17j-1, concerning the Adviser's Code of Ethics to
the Trust's Board. The Adviser shall respond to requests for information from
the Trust as to violations of the Code by Access Persons and the sanctions
imposed by the Adviser. The Adviser shall immediately notify the Trust of any
material violation of the Code, whether or not such violation relates to a
security held by any Fund.
3. INFORMATION AND REPORTING. The Adviser shall provide the Trust and
its officers with such periodic reports concerning the obligations the Adviser
has assumed under this Agreement as the Trust may from time to time reasonably
request.
(a) NOTIFICATION OF BREACH / COMPLIANCE REPORTS. The Adviser shall
notify the Trust's chief compliance officer immediately upon detection of
(i) any material failure to manage any Fund in accordance with its
investment objectives and policies or any applicable law; or (ii) any
material breach of any of the Funds' or the Adviser's policies, guidelines
or procedures. In addition, the Adviser shall provide a quarterly report
regarding each Fund's compliance with its investment objectives and
policies, applicable law, including, but not limited to the 1940 Act and
Subchapter M of the Code, and the Fund's policies, guidelines or procedures
as applicable to the Adviser's obligations under this Agreement. The
Adviser agrees to correct any such failure promptly and to take any action
that the Board may reasonably request in connection with any such breach.
Upon request, the Adviser shall also provide the officers of the Trust with
supporting certifications in connection with such certifications of Fund
financial statements and disclosure controls pursuant to the Xxxxxxxx-Xxxxx
Act. The Adviser will promptly notify the Trust in the event (i) the
Adviser is served or otherwise receives notice of any action, suit,
proceeding, inquiry or investigation, at law or in equity, before or by any
court, public board, or body, involving the affairs of the Trust (excluding
class action suits in which a Fund is a member of the plaintiff class by
reason of the Fund's ownership of shares in the defendant) or the
compliance by the Adviser with the federal
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or state securities laws or (ii) an actual change in control of the Adviser
resulting in an "assignment" (as defined in the 1940 Act) has occurred or
is otherwise proposed to occur.
(b) BOARD AND FILINGS INFORMATION. The Adviser will provide the Trust
with any information reasonably requested regarding its management of the
Funds required for any meeting of the Board, or for any shareholder report,
Form N-CSR, Form N-Q, Form N-PX, Form N-SAR, amended registration
statement, proxy statement, or prospectus supplement to be filed by the
Trust with the Commission. The Adviser will make its officers and employees
available to meet with the Board from time to time on due notice to review
its investment management services to the Funds in light of current and
prospective economic and market conditions and shall furnish to the Board
such information as may reasonably be necessary in order for the Board to
evaluate this Agreement or any proposed amendments thereto.
(c) TRANSACTION INFORMATION. The Adviser shall furnish to the Trust
such information concerning portfolio transactions as may be necessary to
enable the Trust or its designated agent to perform such compliance testing
on the Funds and the Adviser's services as the Trust may, in its sole
discretion, determine to be appropriate. The provision of such information
by the Adviser to the Trust or its designated agent in no way relieves the
Adviser of its own responsibilities under this Agreement.
4. BROKERAGE.
(a) PRINCIPAL TRANSACTIONS. In connection with purchases or sales of
securities for the account of a Fund, neither the Adviser nor any of its
directors, officers or employees will act as a principal or agent or
receive any commission except as permitted by the 1940 Act.
(b) PLACEMENT OF ORDERS. The Adviser shall arrange for the placing of
all orders for the purchase and sale of securities for a Fund's account
with brokers or dealers selected by the Adviser. The Adviser may delegate
the placing of orders for the purchase and sale of securities for the
Fund's account with one or more Sub-Advisers. In the selection of such
brokers or dealers and the placing of such orders, the Adviser is directed
at all times to seek for the Fund the best price and most favorable
execution under the circumstances. It is also understood that it may be
desirable for the Fund that the Adviser have access to brokerage and
research services provided by brokers who may execute brokerage
transactions at a higher cost to the Fund than may result when allocating
brokerage to other brokers, consistent with section 28(e) of the 1934 Act
and any Commission staff interpretations thereof. Therefore, the Adviser is
authorized to place orders for the purchase and sale of securities for a
Fund with such brokers, subject to review by the Board 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
Adviser in connection with its or its affiliates' services to other
clients.
(c) AGGREGATED TRANSACTIONS. On occasions when the Adviser deems the
purchase or sale of a security to be in the best interest of a Fund as well
as other clients of the Adviser, the Adviser may, to the extent permitted
by applicable law and regulations,
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aggregate the order for securities to be sold or purchased. In such event,
the Adviser will allocate securities or futures contracts so purchased or
sold, as well as the expenses incurred in the transaction, in the manner
the Adviser reasonably considers to be equitable and consistent with its
fiduciary obligations to the Fund and to such other clients under the
circumstances.
(d) AFFILIATED BROKERS. The Adviser or any of its affiliates may act
as broker in connection with the purchase or sale of securities or other
investments for a Fund, subject to: (a) the requirement that the Adviser
seek to obtain best execution and price within the policy guidelines
determined by the Board and set forth in the Fund's current Registration
Statement; (b) the provisions of the 1940 Act; (c) the provisions of the
Advisers Act; (d) the provisions of the 1934 Act; and (e) other provisions
of applicable law. These brokerage services are not within the scope of the
duties of the Adviser under this Agreement. Subject to the requirements of
applicable law and any procedures adopted by the Board, the Adviser or its
affiliates may receive brokerage commissions, fees or other remuneration
from a Fund for these services in addition to the Adviser's fees for
services under this Agreement.
5. CUSTODY. Nothing in this Agreement shall permit the Adviser to
take or receive physical possession of cash, securities or other investments of
a Fund.
6. ALLOCATION OF CHARGES AND EXPENSES. The Adviser will bear its own
costs of providing services hereunder. Other than as herein specifically
indicated, the Adviser shall not be responsible for a Fund's expenses,
including brokerage and other expenses incurred in placing orders for the
purchase and sale of securities and other investment instruments.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) PROPERLY REGISTERED. The Adviser is registered as an investment
adviser under the Advisers Act, and will remain so registered for the
duration of this Agreement.
The Adviser is not prohibited by the Advisers Act or the 1940 Act from
performing the services contemplated by this Agreement, and to the best
knowledge of the Adviser, there is no proceeding or investigation that is
reasonably likely to result in the Adviser being prohibited from performing
the services contemplated by this Agreement. The Adviser agrees to promptly
notify the Trust of the occurrence of any event that would disqualify the
Adviser from serving as an investment adviser to an investment company. The
Adviser is in compliance in all material respects with all applicable
federal and state law in connection with its investment management
operations.
(b) ADV DISCLOSURE. The Adviser has provided the Trust with a copy of
its Form ADV Part I as most recently filed with the SEC and its current
Part II and will, promptly after filing any amendment to its Form ADV with
the SEC updating its Part II, furnish a copy of such amendments or updates
to the Trust. The information contained in the Adviser's Form ADV is
accurate and complete in all material respects and does not omit to state
any material fact necessary in order to make the statements made, in light
of the circumstances under which they were made, not misleading.
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(c) FUND DISCLOSURE DOCUMENTS. The Adviser has reviewed, and will in
the future review, the Registration Statement, summary prospectus,
prospectus, statement of additional information, periodic reports to
shareholders, reports and schedules filed with the Commission (including
any amendment, supplement or sticker to any of the foregoing) and
advertising and sales material relating to the Funds (collectively the
"Disclosure Documents") and represents and warrants that such Disclosure
Documents contain or will contain no untrue statement of any material fact
and do not and will not omit any statement of material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) USE OF THE NAME "XXXXXX". The Adviser has the right to use the
name "Xxxxxx" in connection with its services to the Trust and the Trust
shall have the right to use the name "Xxxxxx" in connection with the
management and operation of the Fund. The Adviser is not aware of any
threatened or existing actions, claims, litigation or proceedings that
would adversely affect or prejudice the rights of the Adviser or the Trust
to use the name "Xxxxxx."
(e) INSURANCE. The Adviser maintains errors and omissions insurance
coverage in an appropriate amount and shall provide prior written notice to
the Trust (i) of any material changes in its insurance policies or
insurance coverage; or (ii) if any material claims will be made on its
insurance policies. Furthermore, the Adviser shall, upon reasonable
request, provide the Trust with any information it may reasonably require
concerning the amount of or scope of such insurance.
(f) NO DETRIMENTAL AGREEMENT. The Adviser represents and warrants that
it has no arrangement or understanding with any party, other than the
Trust, that would influence the decision of the Adviser with respect to its
selection of securities for a Fund, and that all selections shall be done
in accordance with what is in the best interest of the Fund.
(g) CONFLICTS. The Adviser shall act honestly, in good faith and in
the best interests of the Trust including requiring any of its personnel
with knowledge of Fund activities to place the interest of a Fund first,
ahead of their own interests, in all personal trading scenarios that may
involve a conflict of interest with the Fund, consistent with its fiduciary
duties under applicable law.
(h) REPRESENTATIONS. The representations and warranties in this
Section 8 shall be deemed to be made on the date this Agreement is executed
and at the time of delivery of the quarterly compliance report required by
Section 3(a), whether or not specifically referenced in such report.
9. ADVISER'S COMPENSATION. The Funds shall pay to the Adviser, as
compensation for the Adviser's services hereunder, a fee, determined as
described in Schedule A that is attached hereto and made a part hereof. Such
fee shall be computed daily and paid not less than monthly in arrears by the
Funds. To the extent agreed to by a Fund and the Adviser, the Fund shall pay to
any Sub-Adviser, as compensation for such Sub-Adviser's services pursuant to
its respective Sub-Advisory Agreement, the fee set forth in
such Sub-Advisory Agreement;
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provided such Sub-Advisory Agreement has been approved by the Board.
The method for determining net assets of a Fund for purposes hereof
shall be the same as the method for determining net assets for purposes of
establishing the offering and redemption prices of Fund shares as described in
the Fund's prospectus. In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a pro
rata adjustment based on the number of days elapsed in the current month as a
percentage of the total number of days in such month.
10. INDEPENDENT CONTRACTOR. In the performance of its duties
hereunder, the Adviser is and shall be an independent contractor and, unless
otherwise expressly provided herein or otherwise authorized in writing, shall
have no authority to act for or represent the Trust or any Fund in any way or
otherwise be deemed to be an agent of the Trust or any Fund. If any occasion
should arise in which the Adviser gives any advice to its clients concerning
the shares of a Fund, the Adviser will act solely as investment counsel for
such clients and not in any way on behalf of the Fund.
11. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate, without the payment of any penalty, in the event of its assignment
(as defined in section 2(a)(4) of the 1940 Act); provided that such termination
shall not relieve the Adviser of any liability incurred hereunder.
This Agreement 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.
12. DURATION AND TERMINATION.
This Agreement shall become effective as of the date executed and
shall remain in full force and effect continually thereafter, subject to
renewal as provided in Section 12(c) and unless terminated automatically as set
forth in Section 11 hereof or until terminated as follows:
(a) The Trust may cause this Agreement to terminate either (i) by vote
of its Board or (ii) with respect to any Fund, upon the affirmative vote of
a majority of the outstanding voting securities of the Fund; or
(b) The Adviser may at any time terminate this Agreement by not more
than sixty (60) days' nor less than thirty (30) days' written notice
delivered or mailed by registered mail, postage prepaid, to the Trust; or
(c) This Agreement shall automatically terminate two years from the
date of its execution unless its renewal is specifically approved at least
annually thereafter by (i) a majority vote of the Trustees, including a
majority vote of such Trustees who are not interested persons of the Trust
or the Adviser, at a meeting called for the purpose of voting on such
approval; or (ii) the vote of a majority of the outstanding voting
securities of each Fund; provided, however, that if the continuance of this
Agreement is submitted
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to the shareholders of the Funds for their approval and such shareholders
fail to approve such continuance of this Agreement as provided herein, the
Adviser may continue to serve hereunder as to the Funds in a manner
consistent with the 1940 Act and the rules and regulations thereunder; and
(d) Termination of this Agreement pursuant to this Section shall be
without payment of any penalty.
In the event of termination of this Agreement for any reason, the
Adviser shall, immediately upon notice of termination or on such later date as
may be specified in such notice, cease all activity on behalf of the Funds and
with respect to any of its assets, except as otherwise required by any
fiduciary duties of the Adviser under applicable law. In addition, the Adviser
shall deliver the Fund Books and Records to the Trust by such means and in
accordance with such schedule as the Trust shall direct and shall otherwise
cooperate, as reasonably directed by the Trust, in the transition of portfolio
asset management to any successor of the Adviser.
13. CERTAIN DEFINITIONS. For the purposes of this Agreement:
(a) "Affirmative vote of a majority of the outstanding voting securities of
the Fund" shall have the meaning as set forth in the 1940 Act, subject, however,
to such exemptions as may be granted by the Commission under the 1940 Act or any
interpretations of the Commission staff.
(b) "Interested persons" and "Assignment" shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions
as may be granted by the Commission under the 1940 Act or any
interpretations of the Commission staff.
14. LIABILITY OF THE ADVISER.
(a) The Adviser shall have responsibility for the accuracy and
completeness (and liability for the lack thereof) of statements in the
Funds' Disclosure Documents.
(b) The Adviser shall be liable to each Fund for any loss (including
transaction costs) incurred by the Fund as a result of any investment made
by the Adviser in contravention of: (i) any investment policy, guideline or
restriction set forth in the Registration Statement or as approved by the
Board from time to time and provided to the Adviser; or (ii) applicable
law, including but not limited to the 1940 Act and the Code (including but
not limited to the Fund's failure to satisfy the diversification or source
of income requirements of Subchapter M of the Code) (the investments
described in this subsection (b) collectively are referred to as "Improper
Investments").
(c) The Adviser shall indemnify and hold harmless the Trust, each
affiliated person of the Trust within the meaning of Section 2(a)(3) of the
1940 Act, and each person who controls the Trust within the meaning of
Section 15 of the 1933 Act (any such person, an "Indemnified Party")
against any and all losses, claims, damages, expenses or liabilities
(including the reasonable cost of investigating and defending any
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alleged loss, claim, damage, expense or liability and reasonable counsel
fees incurred in connection therewith) to which any such person may become
subject under the 1933 Act, the 1934 Act, the 1940 Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) a breach by the
Adviser of this Agreement or of the representations and warranties made by
the Adviser herein; (ii) any Improper Investment; (iii) any untrue
statement or alleged untrue statement of a material fact contained in any
Disclosure Document prepared by the Adviser or the omission or alleged
omission from a Disclosure Document prepared by the Adviser of a material
fact required to be stated therein or necessary to make the statements
therein not misleading; or (iv) the Adviser's performance or
non-performance of its duties hereunder; provided, however, that nothing
herein shall be deemed to protect any Indemnified Party who is a Trustee or
officer of the Trust against any liability to the Trust or to its
shareholders to which such Indemnified Party would otherwise be subject by
reason or willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such person's office
with the Trust.
15. ENFORCEABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
16. LIMITATION OF LIABILITY. The parties to this Agreement
acknowledge and agree that all litigation arising hereunder, whether direct or
indirect, and of any and every nature whatsoever shall be satisfied solely out
of the assets of the affected Fund and that no Trustee, officer or holder of
shares of beneficial interest of the Fund shall be personally liable for any of
the foregoing liabilities. The Trust's Certificate of Trust, as amended from
time to time, is on file in the Office of the Secretary of State of the
Commonwealth of Massachusetts. Such Certificate of Trust and the Trust's
Agreement and Declaration of Trust describe in detail the respective
responsibilities and limitations on liability of the Trustees, officers, and
holders of shares of beneficial interest.
17. CHANGE IN THE ADVISER'S OWNERSHIP. The Adviser agrees that it
shall notify the Trust of any anticipated or otherwise reasonably foreseeable
change in the ownership of the Adviser within a reasonable time prior to such
change being effected.
18. JURISDICTION. This Agreement shall be governed by and construed
in accordance with the substantive laws of Commonwealth of Massachusetts and
the Adviser consents to the jurisdiction of courts, both state or federal, in
Massachusetts, with respect to any dispute under this Agreement.
19. PARAGRAPH HEADINGS. The headings of paragraphs contained in this
Agreement are provided for convenience only, form no part of this Agreement and
shall not affect its construction.
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20. COUNTERPARTS. 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 instrument to
be signed on their behalf by their duly authorized officers as of the date
first above written.
THE KP FUNDS, on behalf of the Funds listed on Schedule A
By: ___________________
Name: Xxxxxxx Xxxxxxx
Title: President
By: ___________________
Name:
Title:
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SCHEDULE A
TO THE
INVESTMENT ADVISORY AGREEMENT
DATED , 2013 BETWEEN
THE KP FUNDS
AND
XXXXXX ASSOCIATES INC.
For the KP Large Cap Equity Fund, the KP Small Cap Equity Fund, the KP
International Equity Fund and the KP Fixed Income Fund, the Trust will pay to
the Adviser as compensation for the Adviser's services rendered, a fee,
computed daily at an annual rate based on the average daily net assets of each
Fund in accordance with the following fee schedule. For the KP Retirement Path
2015 Fund, the KP Retirement Path 2020 Fund, the KP Retirement Path 2025 Fund,
the KP Retirement Path 2030 Fund, the KP Retirement Path 2035 Fund, the KP
Retirement Path 2040 Fund, the KP Retirement Path 2045 Fund, the KP Retirement
Path 2050 Fund, the KP Retirement Path 2055 Fund and the KP Retirement Path
2060 Fund, the Trust will pay to the Adviser as compensation for the Adviser's
services rendered, computed daily at an annual rate based on each Fund's
average daily net assets invested in underlying funds to which the Adviser does
not serve as investment adviser.
FUND RATE
KP Large Cap Equity Fund .............................................. 0.05%
KP Small Cap Equity Fund .............................................. 0.05%
KP International Equity Fund .......................................... 0.05%
KP Fixed Income Fund .................................................. 0.05%
KP Retirement Path 2015 Fund .......................................... 0.05%
KP Retirement Path 2020 Fund .......................................... 0.05%
KP Retirement Path 2025 Fund .......................................... 0.05%
KP Retirement Path 2030 Fund .......................................... 0.05%
KP Retirement Path 2035 Fund .......................................... 0.05%
KP Retirement Path 2040 Fund .......................................... 0.05%
KP Retirement Path 2045 Fund .......................................... 0.05%
KP Retirement Path 2050 Fund .......................................... 0.05%
KP Retirement Path 2055 Fund .......................................... 0.05%
KP Retirement Path 2060 Fund .......................................... 0.05%
A-1
