EXHIBIT (d)(1)
THE KENSINGTON FUNDS
ON BEHALF OF
KENSINGTON STRATEGIC REALTY FUND
INVESTMENT ADVISORY AGREEMENT
AGREEMENT, effective commencing on April 1, 2003, between Kensington
Investment Group, Inc. (the "Adviser") and The Kensington Funds (the "Trust") on
behalf of Kensington Strategic Realty Fund (the "Fund").
WHEREAS, the Trust is a Delaware statutory trust of the series type
organized under a Declaration of Trust dated January 10, 2003 (the
"Declaration") and is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end, diversified management investment
company, and the Fund is a series of the Trust that offers one or more classes
of its shares (each, a "Class"); and
WHEREAS, the Trust wishes to retain the Adviser to render investment
advisory services to the Fund, and the Adviser is willing to furnish such
services to the Fund; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the Trust and the Adviser as follows:
1. APPOINTMENT. The Trust hereby appoints the Adviser to act as
investment adviser to the Fund for the periods and on the terms set forth in
this Agreement. The Adviser accepts such appointment and agrees to furnish the
services herein set forth, for the compensation herein provided.
2. INVESTMENT ADVISORY DUTIES. Subject to the supervision of the
Trustees of the Trust, the Adviser will (a) provide a program of continuous
investment management for the Fund in accordance with the Fund's investment
objectives, policies and limitations as stated in the Fund's prospectus and
Statement of Additional Information included as part of the Trust's Registration
Statement filed with the Securities and Exchange Commission, as they may be
amended from time to time, copies of which shall be provided to the Adviser by
the Trust; (b) make investment decisions for the Fund; and (c) place orders to
purchase and sell securities for the Fund.
In performing its investment management services to the Fund hereunder,
the Adviser will provide the Fund with ongoing investment guidance and policy
direction, including oral and
written research, analysis, advice, statistical and economic data and judgments
regarding individual investments, general economic conditions and trends and
long-range investment policy. The Adviser will determine the securities,
instruments, repurchase agreements, options and other investments and techniques
that the Fund will purchase, sell, enter into or use, and will provide an
ongoing evaluation of the Fund's portfolio. The Adviser will determine what
portion of the Fund's portfolio shall be invested in securities and other
assets, and what portion if any, should be held uninvested.
The Adviser further agrees that, in performing its duties hereunder, it
will:
(a) comply with the 1940 Act and all rules and regulations thereunder,
the Advisers Act, the Internal Revenue Code (the "Code") and all other
applicable federal and state laws and regulations, and with any applicable
procedures adopted by the Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify,
and continue to qualify, as a regulated investment company under Subchapter M of
the Code and regulations issued thereunder;
(c) place orders pursuant to its investment determinations for the Fund
directly with the issuer, or with any broker or dealer, in accordance with
applicable policies expressed in the Fund's prospectus and/or Statement of
Additional Information and in accordance with applicable legal requirements;
(d) furnish to the Trust whatever statistical information the Trust may
reasonably request with respect to the Fund's assets or contemplated
investments. In addition, the Adviser will keep the Trust and the Trustees
informed of developments materially affecting the Fund's portfolio and shall, on
the Adviser's own initiative, furnish to the Trust from time to time whatever
information the Adviser believes appropriate for this purpose;
(e) make available to the Trust's administrator (the "Administrator"),
and the Trust, promptly upon their request, such copies of its investment
records and ledgers with respect to the Fund as may be required to assist the
Administrator and the Trust in their compliance with applicable laws and
regulations. The Adviser will furnish the Trustees with such periodic and
special reports regarding the Fund as they may reasonably request;
(f) immediately notify the Trust in the event that the Adviser or any of
its affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents the Adviser from serving as investment adviser
pursuant to this Agreement; or (2) becomes aware that it is the subject of an
administrative proceeding or enforcement action by the Securities and Exchange
Commission ("SEC") or other regulatory authority. The Adviser further agrees to
notify the Trust immediately of any material fact known to the Adviser
respecting or relating to the Adviser that is not contained in the Trust's
Registration Statement regarding the Fund, or any amendment or supplement
thereto, but that is required to be disclosed thereon, and of any statement
contained therein that becomes untrue in any material respect;
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(g) in making investment decisions for the Fund, use no inside
information that may be in its possession or in the possession of any of its
affiliates, nor will the Adviser seek to obtain any such information.
3. ALLOCATION OF CHARGES AND EXPENSES. Except as otherwise
specifically provided in this section 3, the Adviser shall pay the compensation
and expenses of all its directors, officers and employees who serve as officers
and executive employees of the Trust (including the Trust's share of payroll
taxes), and the Adviser shall make available, without expense to the Fund, the
service of its directors, officers and employees who may be duly elected
officers of the Trust, subject to their individual consent to serve and to any
limitations imposed by law.
The Adviser shall not be required to pay any expenses of the Fund other
than those specifically allocated to the Adviser in this section 3. In
particular, but without limiting the generality of the foregoing, the Adviser
shall not be responsible, except to the extent of the reasonable compensation of
such of the Trust's employees as are officers or employees of the Adviser whose
services may be involved, for the following expenses of the Fund: organization
and certain offering expenses of the Fund (including out-of-pocket expenses, but
not including the Adviser's overhead and employee costs); fees payable to the
Adviser and to any other Fund advisers or consultants; legal expenses; auditing
and accounting expenses; interest expenses; telephone, telex, facsimile, postage
and other communications expenses; taxes and governmental fees; fees, dues and
expenses incurred by or with respect to the Fund in connection with membership
in investment company trade organizations; cost of insurance relating to
fidelity coverage for the Trust's officers and employees; fees and expenses of
the Fund's Administrator or of any custodian, subcustodian, transfer agent,
registrar, or dividend disbursing agent of the Fund; payments to the
Administrator for maintaining the Fund's financial books and records and
calculating its daily net asset value; other payments for portfolio pricing or
valuation services to pricing agents, accountants, bankers and other
specialists, if any; expenses of preparing share certificates; other expenses in
connection with the issuance, offering, distribution or sale of securities
issued by the Fund; expenses relating to investor and public relations; expenses
of registering shares of the Fund for sale and fees related to notification and
other filings required by states in which Fund shares are sold; freight,
insurance and other charges in connection with the shipment of the Fund's
portfolio securities; brokerage commissions or other costs of acquiring or
disposing of any portfolio securities or other assets of the Fund, or of
entering into other transactions or engaging in any investment practices with
respect to the Fund; expenses of printing and distributing prospectuses,
Statements of Additional Information, reports, notices and dividends to
stockholders; costs of stationery or other office supplies; any litigation
expenses; costs of stockholders' and other meetings; the compensation and all
expenses (specifically including travel expenses relating to the Fund's
business) of officers, Trustees and employees of the Trust who are not
interested persons of the Adviser; and travel expenses (or an appropriate
portion thereof) of officers or Trustees of the Trust who are officers,
directors or employees of the Adviser to the extent that such expenses relate to
attendance at meetings of the Board of Trustees of the Trust with respect to
matters concerning the Fund, or any committees thereof or advisers thereto.
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4. COMPENSATION.
(a) As compensation for the services provided and expenses assumed by
the Adviser under this Agreement, the Trust will arrange for the Fund to pay the
Adviser a fee (the "Total Fee") composed of: (1) a base fee, calculated daily
and paid at the end of each calendar month, at a rate equal on an annual basis
to 1.50% of the Fund's average daily net assets (the "Base Fee"), and (2) a
Performance Adjustment that will add to or subtract from the Base Fee depending
on the performance of Class A shares of the Fund relative to the National
Association of Real Estate Investment Trust ("NAREIT") Composite Index ("Index")
for the preceding twelve month period (which performance, for purposes of this
section 4, shall be deemed to include the performance of the Class A shares of
the Fund's predecessor investment series during the twelve months immediately
prior to the date of this Agreement). A Performance Adjustment will be made at
the end of the each calendar month based on the performance of Class A shares
relative to the Index for the preceding twelve months, to determine the Total
Fee payable for that month. The Base Fee will be at an annual rate equal to
1.50% of the Fund's average daily net assets for the previous twelve month
period. The Performance Adjustment will be a positive or negative amount equal
to 15% (rounded to the third decimal place) of the difference between the
performance of Class A shares of the Fund and the performance of the Index for
the previous twelve month period. The Total Fee rate, composed of the Base Fee
and the Performance Adjustment, will be at an annual rate not less than 0.50% or
greater than 2.50% of the Fund's average daily net assets.
(b) The investment performance of the Fund's Class A shares and the
investment record of the Index will be calculated in accordance with applicable
law and regulation, including Rule 205-1 under the 1940 Act. The investment
performance of the Fund's Class A shares will be measured by comparing (i) the
opening net asset value of one Class A share of the Fund on the first business
day of the applicable twelve month period with (ii) the closing net asset value
of one Class A share of the Fund as of the last business day of such period. The
investment record of the Index will determined by comparing the level of the
Index on the first day of the applicable twelve month period with its level on
the last business day of such period.
(c) The "average daily net assets" of the Fund shall mean the average of
the values placed on the Fund's net assets as of 4:00 p.m. (New York time) on
each day on which the net asset value of the Fund is determined consistent with
the provisions of Rule 22c-1 under the 1940 Act or, if the Fund lawfully
determines the value of its net assets as of some other time on each business
day, as of such other time. The value of net assets of the Fund and of its
Classes shall always be determined pursuant to the applicable provisions of the
Declaration and the Registration Statement. If, pursuant to such provisions, the
determination of net asset value of the Fund or a Class is suspended for any
particular business day, then for the purposes of this section 4, the value of
the net assets of the Fund or Class, as applicable, as last determined shall be
deemed to be the value of its net assets as of the close of the New York Stock
Exchange, or as of such other time as the value of the net assets of the Fund or
such Class may lawfully be determined, on that day. If the determination of the
net asset value of the shares of the Fund or a
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Class has been so suspended for a period including any month end when the
Adviser's compensation is payable pursuant to this section, then the Adviser's
compensation payable at the end of such month shall be computed on the basis of
the value of the net assets of the Fund or Class, as applicable, as last
determined (whether during or prior to such month). If the Fund or Class
determines the value of its net assets more than once on any day, then the last
such determination thereof on that day shall be deemed to be the sole
determination thereof on that day for the purposes of this section 4.
(d) The computation of the Performance Adjustment will not be
cumulative. A positive fee rate will apply even though the performance of a
Class A share has been behind that of the Index, and conversely, a negative fee
rate will apply for a month even though the performance of a Class A share over
some period of time shorter than the preceding twelve months has been ahead of
that of the Index.
5. BOOKS AND RECORDS. The Adviser agrees to maintain such books and
records with respect to its services to the Fund as are required by Section 31
under the 1940 Act, and rules adopted thereunder, and by other applicable legal
provisions, and to preserve such records for the periods and in the manner
required by that Section, and those rules and legal provisions. The Adviser also
agrees that records it maintains and preserves pursuant to Rules 31a-1 and 31a-2
under the 1940 Act and otherwise in connection with its services hereunder are
the property of the Trust and will be surrendered promptly to the Trust upon its
request. And the Adviser further agrees that it will furnish to regulatory
authorities having the requisite authority any information or reports in
connection with its services hereunder which may be requested in order to
determine whether the operations of the Fund are being conducted in accordance
with applicable laws and regulations.
6. STANDARD OF CARE AND LIMITATION OF LIABILITY. The Adviser shall
exercise its best judgment in rendering the services provided by it under this
Agreement. The Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund or the holders of the Fund's shares
in connection with the matters to which this Agreement relates, provided that
nothing in this Agreement shall be deemed to protect or purport to protect the
Adviser against any liability to the Trust, the Fund or to holders of the Fund's
shares to which the Adviser would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence on its part in the performance of its
duties or by reason of the Adviser's reckless disregard of its obligations and
duties under this Agreement. As used in this Section 6, the term "Adviser" shall
include any officers, directors, employees or other affiliates of the Adviser
performing services with respect to the Fund.
7. SERVICES NOT EXCLUSIVE. It is understood that the services of
the Adviser are not exclusive, and that nothing in this Agreement shall prevent
the Adviser from providing similar services to other investment companies or to
other series of investment companies, including the Trust (whether or not their
investment objectives and policies are similar to those of the Fund) or from
engaging in other activities, provided such other services and activities do
not, during the
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term of this Agreement, interfere in a material manner with the Adviser's
ability to meet its obligations to the Fund hereunder. When the Adviser
recommends the purchase or sale of a security for other investment companies and
other clients, and at the same time the Adviser recommends the purchase or sale
of the same security for the Fund, it is understood that in light of its
fiduciary duty to the Fund, such transactions will be executed on a basis that
is fair and equitable to the Fund. In connection with purchases or sales of
portfolio securities for the account of the Fund, neither the Adviser nor any of
its directors, officers or employees shall act as a principal or agent or
receive any commission. If the Adviser provides any advice to its clients
concerning the shares of the Fund, the Adviser shall act solely as investment
counsel for such clients and not in any way on behalf of the Trust or the Fund.
8. DURATION AND TERMINATION. This Agreement shall continue until
April 1, 2004, and thereafter shall continue automatically for successive annual
periods, provided such continuance is specifically approved at least annually by
(i) the Trustees or (ii) a vote of a "majority" (as defined in the 0000 Xxx) of
the Fund's outstanding voting securities (as defined in the 1940 Act), provided
that in either event the continuance is also approved by a majority of the
Trustees who are not parties to this Agreement or "interested persons" (as
defined in the 0000 Xxx) of any party to this Agreement, by vote cast in person
at a meeting called for the purpose of voting on such approval. Notwithstanding
the foregoing, this Agreement may be terminated: (a) at any time without penalty
by the Fund upon the vote of a majority of the Trustees or by vote of the
majority of the Fund's outstanding voting securities, upon sixty (60) days'
written notice to the Adviser or (b) by the Adviser at any time without penalty,
upon sixty (60) days' written notice to the Trust. This Agreement will also
terminate automatically in the event of its assignment (as defined in the 1940
Act).
9. AMENDMENTS. Except to the extent permitted by applicable law,
regulation or regulatory policy, no provision of this Agreement may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought, and, except to the extent permitted by applicable law,
regulation or regulatory policy, no amendment of this Agreement shall be
effective until approved by an affirmative vote of (i) a majority of the
outstanding voting securities of the Fund, and (ii) a majority of the Trustees,
including a majority of Trustees who are not interested persons of any party to
this Agreement, cast in person at a meeting called for the purpose of voting on
such approval, if such approval is required by applicable law.
10. PROXIES. Unless the Trust gives written instructions to the
contrary, the Adviser shall vote all proxies solicited by or with respect to the
issuers of securities in which assets of the Fund may be invested. The Adviser
shall use its best good faith judgment to vote such proxies in a manner which
best serves the interests of the Fund's shareholders.
11. NAME RESERVATION. The Trust acknowledges and agrees that the
Adviser has property rights relating to the use of the term "Kensington" and has
permitted the use of such term by the Trust and the Fund. The Trust agrees that:
(i) it will use the term "Kensington" only
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as a component of the name of the Fund and any other series for which the
Adviser serves as investment adviser, and for no other purposes; (ii) it will
not purport to grant to any third party any rights in such name; (iii) at the
request of the Adviser, the Trust will take such action as may be required to
provide its consent to use of the term by the Adviser, or any affiliate of the
Adviser to whom the Adviser shall have granted the right to such use; and (iv)
the Adviser may use or grant to others the right to use the term, or any
abbreviation thereof, as all or a portion of a corporate or business name or for
any commercial purpose, including a grant of such right to any other investment
company. Upon termination of this Agreement, the Trust shall, upon request of
the Adviser, cease to use the term "Kensington" as part of the name of the Fund
or any series of the Trust or in any way not consented to by the Adviser. In the
event of any request by the Adviser that use of the term "Kensington" shall
cease, the Trust shall cause its officers, Trustees and stockholders to take any
and all such actions which the Adviser may request to effect such request and to
reconvey to the Adviser any and all rights to the term "Kensington."
12. SHAREHOLDER LIST. The Trust grants to the Adviser the
unconditional right to receive, at any time and at no cost to the Adviser, the
list of the registration information pertaining to the shareholders of the Fund
("Shareholder List"). The Shareholder List shall be provided in a printed as
well as an electronic format and shall include the name, last known address and
number of shares held for each shareholder as of the date produced. In addition,
the list shall include, where applicable, identification of beneficial ownership
of shares held of record by depositories, custodians, brokers, or other
institutional holders.
13. MISCELLANEOUS.
a. This Agreement shall be governed by the laws of the State of
California, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act, or rules or orders of the SEC
thereunder.
b. The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect.
c. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected hereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
d. Nothing herein shall be construed as constituting the Adviser as
an agent of the Trust or the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the date first above written.
THE KENSINGTON FUNDS
ON BEHALF OF KENSINGTON STRATEGIC REALTY FUND
By:
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Name:
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Title:
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KENSINGTON INVESTMENT GROUP, INC.
By:
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Name:
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Title:
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