MANAGEMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of March, 2004, by and between Westlakes
Institutional Portfolios, a Delaware business trust (the "Trust"), and
Constellation Investment Management, LP, a Pennsylvania limited partnership (the
"Investment Manager or "CIMCO").
WHEREAS, the Trust is a diversified, open-end management investment company
under the Investment Company Act of 1940, as amended (the "Investment Company
Act").
WHEREAS, the Trust desires to retain the Investment Manager to render
administration and investment management services with respect to the portfolios
set forth in Schedule A attached hereto and such other portfolios as the Trust
and the Investment Manager may agree upon (the "Portfolios"), and the Investment
Manager is willing to render such services.
NOW, THEREFORE, in consideration of mutual covenants herein contained, the
parties hereto agree as follows:
1. DUTIES OF INVESTMENT MANAGER. The Investment Manager shall furnish the Trust
investment management and administrative services. The Trust employs the
Investment Manager to manage the investment and reinvestment of the assets of
the Trust, and to continuously review, supervise and (where appropriate)
administer the investment program of the Trust, to determine in its discretion
(where appropriate) the investments to be purchased or sold, to provide the
Trust with records concerning the Investment Manager's activities which the
Trust is required to maintain, and to render regular reports to the Trust's
officers and Trustees concerning the Investment Manager's discharge of the
foregoing responsibilities. The retention of a sub-adviser by the Investment
Manager shall not relieve the Investment Manager of its responsibilities under
this Agreement.
Administrative services provided by the Investment Manager shall include the
services and compensation of such members of the Investment Manager's
organization as shall be duly elected officers and or trustees of the Trust and
such other personnel as shall be necessary to carry out its normal operations;
fees of the independent Trustees, the custodian, the independent public
accountant and legal counsel (but not legal and audit fees and other costs in
contemplation of or arising out of litigation or administrative actions to which
the Portfolios, its officers or Trustees are a party or incurred in anticipation
of becoming a party); the cost of a transfer and dividend disbursing agent or
similar in-house services; bookkeeping; accounting and all other clerical and
administrative functions as may be reasonable and necessary to maintain the
Trust's records and for it to operate as an open-end management investment
company. The Investment Manager will provide the Trust with all physical
facilities and personnel required to carry on the business of each class of each
series of the Trust's shares that it shall manage, including but not limited to
office space, office furniture, fixtures and equipment, office supplies,
computer hardware and software and salaried and hourly paid personnel. The
Investment Manager may hire other service providers, including its affiliates,
to perform these administrative services; provided, however, that the retention
of such service providers shall not relieve the Investment Manager of its
responsibilities under this Agreement.
Exclusive of the management fee, the Trust shall bear the cost of any interest,
taxes, dues, fees and other charges of governments and their agencies including
the costs of qualifying the Trust's shares for sale in any jurisdiction,
brokerage commissions, or any other expenses incurred by it which are not
assumed herein by the Investment Manager.
All property, equipment and information used by the Investment Manager in the
management and administration of the Trust shall belong to the Investment
Manager. Should the management and administrative relationship between the Trust
and the Investment Manager terminate, the Trust shall be entitled to, and the
Investment Manager shall provide the Trust, a copy of all information and
records in the Investment Manager's file necessary for the Trust to continue its
functions, which shall include computer systems and programs in use as of the
date of such termination; but nothing herein shall prohibit thereafter the use
of such information, systems or programs by the Investment Manager, so long as
such does not unfairly interfere with the continued operation of the Trust.
The Investment Manager shall discharge the foregoing responsibilities subject to
the control of the Board of Trustees of the Trust and in compliance with such
policies as the Trustees may from time to time establish, and in compliance with
the objectives, policies, and limitations of the Trust set forth in its
Prospectus and Statement of Additional Information, as amended from time to
time, and applicable laws and regulations.
2. PORTFOLIO TRANSACTIONS. The Investment Manager is authorized to select the
brokers or dealers that will execute the purchases and sales of the Trust's
investments and is directed to use its best efforts to obtain the best net
results as described from time to time in the Portfolios' Prospectuses and
Statement of Additional Information. The Investment Manager will promptly
communicate to the officers and the Trustees of the Trust such information
relating to the Trust's investment transactions as they may reasonably request.
It is understood that the Investment Manager will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or be in breach of
any obligation owing to the Trust under this Agreement, or otherwise, by reason
of its having directed a securities transaction on behalf of the Trust to a
broker-dealer in compliance with the provisions of Section 28(e) of the
Securities Exchange Act of 1934 or as described from time to time by the
Portfolios' Prospectuses and Statement of Additional Information.
3. COMPENSATION OF THE INVESTMENT MANAGER. For the services to be rendered by
the Investment Manager as provided in this Agreement, the Trust shall pay to the
Investment Manager compensation at the rate specified in Schedule B which is
attached hereto and made a part of this Agreement. Such compensation shall be
paid to the Adviser at the end of each month, and calculated by applying a daily
rate, based on the annual percentage rates as specified in Schedule B, to the
assets. The fee shall be based on the average daily net assets for the month
involved (less any assets of such Portfolios held in non-interest bearing
special deposits with a Federal Reserve Bank).
All rights of compensation under this Agreement for services performed as of the
termination date shall survive the termination of this Agreement.
In the event that the Board of Trustees of the Trust shall determine to issue
any additional series or classes of shares for which it is proposed that the
Investment Manager serve as investment manager, the Trust and the Investment
Manager may enter into an Addendum to this Agreement setting forth the name of
the series, the applicable fee and such other terms and conditions as are
applicable to the management of such series of shares.
4. OTHER EXPENSES. The Investment Manager shall pay all expenses of printing and
mailing reports, prospectuses, statements of additional information, and sales
literature relating to the solicitation o f prospective clients. The Trust shall
pay all expenses relating to printing and mailing to existing shareholders
prospectuses, statements of additional information, proxy solicitation material
and shareholder reports.
5. EXCESS EXPENSES. If the expenses for the Trust for any fiscal year (including
fees and other amounts payable to the Investment Manager, but excluding
interest, taxes, brokerage costs, litigation, and other extraordinary costs) as
calculated every business day would exceed the expense limitations imposed on
investment companies by any applicable statute or regulatory authority of any
jurisdiction in which shares of a Portfolio are qualified for offer and sale,
the Investment Manager shall bear such excess cost. However, the Investment
Manager will not bear expenses of any Portfolio which would result in the
Portfolio' s inability to qualify as a regulated investment company under
provisions of the Internal Revenue Code.
Payment of expenses by the Investment Manager pursuant to this Section 5 shall
be settled on a monthly basis (subject to fiscal year end reconciliation) by a
reduction in the fee payable to the Investment Manager for such month pursuant
to Section 3 and, if such reduction shall be insufficient to offset such
expenses, by reimbursing the Trust.
6. REPORTS. The Trust and the Investment Manager agree to furnish to each other,
if applicable, current prospectuses, proxy statements, reports to shareholders,
certified copies of their financial statements, and such other information with
regard to their affairs as each may reasonably request.
7. STATUS OF THE INVESTMENT MANAGER. The services of the Investment Manager to
the Trust are not to be deemed exclusive, and the Investment Manager shall be
free to render similar services to others so long as its services to the Trust
are not impaired thereby. The Investment Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust.
8. CERTAIN RECORDS. Any records required to be maintained and preserved pursuant
to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the Investment
Company Act which are prepared or maintained by the Investment Manager on behalf
of the Trust are the property of the Trust and will be surrendered promptly to
the Trust on request.
9. LIMITATION OF LIABILITY OF INVESTMENT MANAGER. The duties of the Investment
Manager shall be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against the Investment Manager
hereunder. The Investment Manager 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 carrying out its duties hereunder, except a loss resulting from
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, except as may otherwise be provided under provisions of applicable
state law or Federal securities law which cannot be waived or modified hereby.
(As used in this Paragraph 9, the term "Investment Manager" shall include
directors, officers, employees and other corporate agents of the Investment
Manager as well as the corporation itself).
10. PERMISSIBLE INTERESTS. Trustees, agents and shareholders of the Trust are or
may be interested in the Investment Manager (or any successor thereof) as
directors, partners, officers, or Members, or otherwise; directors, partners,
officers, agents and shareholders of the Investment Manager are or may be
interested in the Trust as Trustees, shareholders or otherwise; and the
Investment Manager (or any successor) is or may be interested in the Trust as a
shareholder or otherwise. In addition, brokerage transactions for the Trust my
be effected through affiliates of the Investment Manager if approved by the
Board of Trustees, subject to the rules and regulations of the Securities and
Exchange Commission.
11. DURATION, AMENDMENT AND TERMINATION. This Agreement, unless sooner
terminated as provided herein, shall remain in effect until two years from date
of execution, and thereafter, for periods of one year so long as such
continuance thereafter is specifically approved at least annually (a) by the
vote of a majority of those Trustees of the Trust 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, and (b) by the Trustees of
the Trust or by vote of a majority of the outstanding voting securities of the
Trust, provided, however, that if the shareholders of the Trust fail to approve
the Agreement as provided herein, the Investment Manager may continue to serve
hereunder in the manner and to the extent permitted by the Investment Company
Act and rules and regulations thereunder. The foregoing requirement that
continuance of this Agreement be "specifically approved at least annually" shall
be construed in a manner consistent with the Investment Company Act and the
rules and regulations thereunder.
No amendment to this Agreement shall be effective unless the terms thereof have
been approved by the vote of a majority of outstanding shares of the Trust as
prescribed by the Investment Company Act and by vote of a majority of the
Trustees of the Trust who are not parties to the Agreement or interested persons
of any such party, cast in person at a meeting called for the purpose of voting
on such approval. It shall be the duty of the Trustees of the Trust to request
and evaluate, and the duty of the Investment Manager to furnish, such
information as may reasonably be necessary to evaluate the terms of this
Agreement and any amendment thereto.
This Agreement may be terminated at any time, without the payment of any penalty
by vote of a majority of the Trustees of the Trust or by vote of a majority of
the outstanding voting securities of the Trust on not less than 30 days nor more
than 60 days written notice to the Investment Manager, or by the Investment
Manager at any time without the payment of any penalty, on 90 days written
notice to the Trust. This Agreement will automatically and immediately terminate
in the event of its assignment. Any notice under this Agreement shall be given
in writing, addressed and delivered, or mailed postpaid, to the other party at
any office of such party.
As used in this Section 11, the terms "assignment," "interested persons," and a
"vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in the Investment Company Act and the rules and
regulations thereunder; subject to such exemptions as may be granted by the
Securities and Exchange Commission under said Act.
12. NOTICE. Any notice required or permitted to be given by either party to the
other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last addressed furnished by the other party to the party giving notice: if to
the Trust, 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention:
President, and if to the Investment Manager at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: President.
13. SEVERABILITY. 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 thereby.
14. GOVERNING LAW. This Agreement shall be construed in accordance with the laws
of the Commonwealth of Pennsylvania and the applicable provisions of the
Investment Company Act. To the extent that the applicable laws of the
Commonwealth of Pennsylvania, or any of the provisions herein, conflict with the
applicable provisions of the Investment Company Act, the latter shall control.
A copy of the Certificate of Trust of the Trust is on file with the Secretary of
the State of Delaware, and notice is hereby given that this instrument is
executed on behalf of the Trustees of the Trust as Trustees, and are not binding
upon any of the Trustees, officers, or shareholders of the Trust individually
but binding only upon the assets and property of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized officers as of the day and year first above
written.
WESTLAKES INSTITUTIONAL CONSTELLATION INVESTMENT PORTFOLIOS
MANAGEMENT COMPANY, LP
By:_____________________________ By:________________________________
Attest:_________________________ Attest:____________________________
SCHEDULE A, AS AMENDED _________, 2004
TO THE
INVESTMENT MANAGEMENT AGREEMENT
DATED MARCH 1, 2004
BETWEEN
WESTLAKES INSTITUTIONAL PORTFOLIOS
AND
CONSTELLATION INVESTMENT MANAGEMENT COMPANY, LP
PORTFOLIOS
----------
TIP MidCap Core Portfolio
TIP MidCap Growth Portfolio
Sands Capital Institutional Growth Portfolio
Clover Capital Institutional Small Cap Value Portfolio
Clover Capital Institutional Fixed Income Portfolio
Clover Capital Institutional Income Plus Portfolio
SCHEDULE B, AS AMENDED ___________, 2004
TO THE
INVESTMENT MANAGEMENT AGREEMENT
DATED MARCH 1, 2004
BETWEEN
WESTLAKES INSTITUTIONAL PORTFOLIOS
AND
CONSTELLATION INVESTMENT MANAGEMENT COMPANY, LP
Pursuant to Section 3, the Trust shall pay the Investment Manager compensation
at an annual rate as follows:
PORTFOLIO FEE (IN BASIS POINTS)
--------- ---------------------
TIP MidCap Core Portfolio 0.90% of the average daily net assets
TIP MidCap Growth Portfolio 0.85% of the average daily net assets
Sands Capital Institutional Growth Portfolio 0.78% of the average daily net assets
Clover Capital Institutional Small Cap Value Portfolio 0.95% of the average daily net assets
Clover Capital Institutional Fixed Income Portfolio 0.45% of the average daily net assets
Clover Capital Institutional Income Plus Portfolio 0.95% of the average daily net assets
