Exhibit 23(d)
DOMINION FUNDS, INC.
(Dominion Insight Growth Fund Series)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made as of the 1st day of November, 1999, by and
between Dominion Funds, Inc., a Texas corporation (the "Company"), and Xxx,
Xxxxxxx & Xxxxxxx Capital Management, Inc., a Delaware corporation (the
"Advisor").
RECITALS
WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the "Act"), as an open-end diversified management investment
company; and
WHEREAS, the Advisor is registered under the Investment Advisers Act of
1940, as amended (the "Advisers Act"), as an investment advisor and engages in
the business of acting as an investment advisor; and
WHEREAS, the Company's Articles of Incorporation authorize the Board of
Directors of the Company to classify or reclassify authorized but unissued
shares of the Company and, as of the date of this Agreement, the Company's Board
of Directors has authorized the issuance of a series of shares representing
interests in a single investment portfolio: Dominion Insight Growth Fund (such
portfolio and any other portfolios hereafter added to the Company being referred
to collectively herein as the "Portfolios"); and
WHEREAS, the Company and the Advisor desire to enter into an agreement to
provide for investment advisory services to the Company's Dominion Insight
Growth Fund series (the "Fund") upon the terms and conditions hereinafter set
forth; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. ADVISORY SERVICES. The Advisor shall act as investment advisor for
the Fund and shall, in such capacity, supervise all aspects of the Fund's
investments, including the investment and reinvestment of the cash, securities
or other properties comprising the Fund's assets, subject at all times to the
policies and control of the Company's Board of Directors. The Advisor shall give
the Company and the Fund the benefit of its best judgment, efforts and
facilities in rendering its services as investment advisor hereunder.
2. INVESTMENT ANALYSIS AND IMPLEMENTATION. In carrying out its duties
under paragraph 1 hereof, the Advisor shall:
(a) obtain and evaluate pertinent information about significant
developments and
economic, statistical and financial data, domestic, foreign, or
otherwise, whether affecting the economy generally or the Fund, and
whether concerning the individual issuers whose securities are
included in the assets of the Fund or the activities in which such
issuers engage, or with respect to securities which the Advisor
considers desirable for inclusion in the Fund;
(b) determine which issuers and securities shall be represented in the
Fund's investment portfolio and regularly report thereon to the
Company's Board of Directors;
(c) formulate and implement continuing programs for the purchases and
sales of the securities of such issuers, and regularly report thereon
to the Company's Board of Directors; and
(d) order or direct the execution of securities transactions on behalf of
the Fund, select broker-dealers and negotiate brokerage commission
rates.
and take, on behalf of the Company and the Fund, all actions which appear to the
Company and the Fund necessary to carry into effect such purchase and sale
programs as aforesaid.
3. CONTROL BY BOARD OF DIRECTORS. Any investment program undertaken by
the Advisor pursuant to this Agreement, as well as any other activities
undertaken by the Advisor on behalf of the Fund, including, but not limited to,
decisions to buy and sell securities for the Fund, broker-dealer selection, and
negotiation of brokerage commission rates, shall at all times be subject to any
directives of the Board of Directors of the Company.
4. COMPLIANCE WITH APPLICABLE REQUIREMENTS. In performing its duties
hereunder, the Advisor shall at all times conform to:
(a) all applicable provisions of the Act and the Advisers Act, and any
rules and regulations adopted thereunder;
(b) the provisions of the registration statement of the Company relating
to the Fund, as the same may be amended from time to time, under the
Securities Act of 1933 and the Act;
(c) the provisions of the Articles of Incorporation of the Company, as the
same may be amended from time to time;
(d) the provisions of the By-laws of the Company, as the same may be
amended from time to time; and
(e) any other applicable provisions of state, federal or foreign law.
5. BROKER-DEALER RELATIONSHIPS. The Advisor's primary consideration in
effecting a security transaction shall be to obtain execution at the most
favorable price. In selecting a broker-dealer to execute each particular
transaction, the Advisor shall 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 Directors
may from time to time 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 and research services to the Advisor an amount of commission
for effecting a portfolio investment 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 overall responsibilities of the Advisor with
respect to the Fund, and other clients of the Advisor as to which the Advisor
exercises investment discretion. The Advisor is further authorized to allocate
the orders placed by it on behalf of the Fund to brokers and dealers who also
provide research or statistical material, or other services to the Fund or the
Advisor. Such allocation shall be in such amounts and proportions as the Advisor
shall determine and the Advisor shall report on said allocations regularly to
the Board of Directors of the Company, indicating the brokers to whom such
allocations have been made and the basis therefor.
6. COMPENSATION. The Company shall pay the Advisor, as compensation for
services rendered hereunder, an annual investment advisory fee, payable monthly,
equal to 1.0% of the average daily net assets of the Fund. The average daily net
assets of the Fund shall be determined in the manner set forth in the Company's
Articles of Incorporation and registration statement relating to the Fund, as
amended from time to time.
7. ADVISOR'S EXPENSES. The Advisor shall furnish at its own expense all
administrative services, office space, equipment and facilities, investment
advisory, statistical and research services, and executive, supervisory and
clerical personnel necessary to perform its duties and obligations hereunder.
8. RECORDS. The Advisor shall comply with the record keeping provisions
of Section 204 of the Advisers Act and Rule 204-2 thereunder, and shall provide
to the Company, upon the Company's request, copies of such records.
9. NON-EXCLUSIVITY. The services of the Advisor to the Company and the
Fund are not to be deemed exclusive, and the Advisor shall be free to render
investment advisory and administrative or other services to others (including
other investment companies) and to engage in other activities. It is understood
and agreed that officers and directors of the Advisor may serve as officers and
directors of the Company, and that officers and directors of the Company may
serve as officers and directors of the Advisor, to the extent permitted by law;
and that officers and directors
of the Advisor are not prohibited from engaging in any other business activity
or from rendering services to any other person, or from serving as partners,
officers, directors or trustees of any other firm or trust, including other
investment advisory companies.
10. TERM AND APPROVAL. This Agreement shall be effective on the date
hereof, and shall thereafter continue for an initial term of 120 days. If this
Agreement is, on or before the end of such initial term, approved by the vote of
"a majority of the outstanding voting securities" of the Fund (as defined under
Section 2(a)(42) of the Act), this Agreement shall thereafter continue in force
and effect for two years, and may be continued from year to year thereafter,
provided that the continuation of the Agreement is specifically approved at
least annually:
(a)(i) by the Company's Board of Directors or (ii) by the vote of "a
majority of the outstanding voting securities" of the Fund (as defined
under Section 2(a)(42) of the Act); and
(b) by the affirmative vote of a majority of the directors of the Company
who are not parties to this Agreement or "interested persons" (as defined
under the Act) of a party to this Agreement (other than as Company
directors), by votes cast in person at a meeting specifically called for
such purpose.
11. TERMINATION. This Agreement may be terminated as to the Fund at any
time, without payment of any penalty, by vote of the Company's Board of
Directors or by vote of a majority of the Fund's outstanding voting securities,
or by the Advisor, on sixty (60) days' written notice to the other party. The
notice herein provided for may be waived by the party entitled to receipt
thereof. This Agreement shall automatically terminate in the event of its
"assignment" (as defined under Section 2(a)(4), of the Act).
12. LIABILITY OF ADVISOR AND INDEMNIFICATION. In the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of obligations or
duties hereunder on the part of the Advisor or any of its officers, directors or
employees, the Advisor shall not be subject to liability to the Company, the
Fund or any shareholder of the Fund for any act or omission in the course of, or
connected with, rendering services hereunder or for any losses than may be
sustained in the purchase, holding or sale of any security. In the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties hereunder on the part of the Advisor or any officer,
director or employee of the Advisor, the Company hereby agrees to indemnify and
hold the Advisor harmless from and against all claims, actions, suits, and
proceedings at law or in equity, whether brought or asserted by a private party
or a governmental agency, instrumentality or entity of any kind, relating to the
sale, purchase, pledge of, advertisement of, or solicitation of sales or
purchases of any security (whether of the Fund or otherwise) by the Company, its
officers, directors, employees or agents in alleged violation of applicable
federal, state or foreign laws, rules or regulations. The Company's obligations
under this paragraph 12 shall be payable only from, and limited to, the assets
of the Fund, and not from the assets of any other series of shares of the
Company.
13. NOTICES. Any notices under this Agreement shall be in writing,
addressed and delivered by hand, telecopied or mailed, postage prepaid, to the
other party at such address as such
other party may designate for the receipt of such notice. Until further notice,
it is agreed that the addresses of the Company and the Fund shall be 0000 Xxxxxx
Xxxxx #000, Xxxxxx, Xxxxx 00000, and that of the Advisor shall be 000 Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000.
14. QUESTIONS OF INTERPRETATION. Questions of interpretation of any term
or provision of this Agreement having a counterpart in or otherwise derived from
a term or provision of the Act shall be resolved by reference to such term or
provision of the Act and to interpretations thereof, if any, by the Courts of
the United States, or in the absence of any controlling decision of any such
court, by rules, regulations or orders of the Securities and Exchange Commission
issued pursuant to the Act. In addition, where the effect of a requirement of
the Act reflected in any provision of the Agreement is revised by rule,
regulation or order of the Securities and Exchange Commission, such provision
shall be deemed to incorporate the effect of such rule, regulation or order.
Subject to the foregoing, this Agreement shall be governed by and construed in
accordance with the laws (without reference to conflicts of law provisions) of
the State of Texas.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective duly authorized officers on the day
and year first written above.
DOMINION FUNDS, INC.
on behalf of its Dominion Insight Growth Fund Series
By:/s/ C. Xxxxx Xxxxxxx, III
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President
XXX, XXXXXXX & XXXXXXX CAPITAL MANAGEMENT, INC.
By:/s/ Xxxx Xxxxxxxx
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President
