INVESTMENT ADVISORY AGREEMENT
This Agreement is made and entered into effective as of April 19, 2007,
by and between the NCM Capital Investment Trust, a Delaware statutory trust (the
"Trust") on behalf of the NCM Capital Mid-Cap Growth Fund, a series of shares of
the Trust (the "Fund"), and NCM Capital Advisers, Inc., a Delaware corporation
(hereinafter referred to as "Adviser").
WHEREAS, the Trust is an open-end management investment company,
registered under the Investment Company Act of 1940, as amended ("1940 Act");
WHEREAS, the Trust has designated the Fund as a series of interests in
the Trust; and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act"), and engages in the
business of asset management; and
WHEREAS, the Trust desires to retain the Adviser to render certain
investment management services to the Fund, and the Adviser is willing to render
such services;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Obligations of the Adviser
(a) Services. The Adviser agrees to perform the following services
("Services") for the Trust:
(1) manage the investment and reinvestment of the assets of
the Fund;
(2) continuously review, supervise, and administer the
investment program of the Fund;
(3) determine, in its discretion, the securities to be
purchased, retained, or sold (and implement those decisions) with
respect to the Fund;
(4) provide the Trust and the Fund with records concerning
the Adviser's activities under this Agreement that the Trust and
the Fund are required to maintain;
(5) render regular reports to the Trust's trustees and
officers concerning the Adviser's discharge of the foregoing
responsibilities; and
(6) perform such other services as agreed by the Adviser and
the Trust from time to time.
The Adviser shall discharge the foregoing responsibilities subject to the
control of the trustees and officers of the Trust and in compliance with
(i) such policies as the trustees may from time to time establish; (ii) the
Fund's objectives, policies, and limitations as set forth in its prospectus
("Prospectus") and statement of additional information ("SAI"), as may be
amended from time to time; and (iii) with all applicable laws and
regulations. All Services to be furnished by the Adviser under this
Agreement may be furnished through the medium of any directors, officers,
or employees of the Adviser or through such other parties as the Adviser
may determine from time to time.
(b) Expenses and Personnel. The Adviser agrees, at its own expense or
at the expense of one or more of its affiliates, to render the Services and
provide the office space, furnishings, equipment, and personnel as may be
reasonably required in the judgment of the trustees and officers of the
Trust to perform the Services on the terms and for the compensation
provided herein. The Adviser shall authorize and permit any of its
officers, directors, and employees, who may be elected as trustees or
officers of the Trust, to serve in the capacities in which they are
elected. Except to the extent expressly assumed by the Adviser herein and
except to the extent required by law to be paid by the Adviser, the Trust
shall pay all costs and expenses in connection with its operation.
(c) Books and Records. All books and records prepared and maintained
by the Adviser for the Trust and the Fund under this Agreement shall be the
property of the Trust and the Fund and, upon request therefor, the Adviser
shall surrender to the Trust and Fund such books and records so requested.
2. Fund Transactions. The Adviser is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio securities for
the Fund. With respect to brokerage selection, the Adviser shall seek to obtain
the best overall execution for fund transactions, which is a combination of
price, quality of execution, and other factors. The Adviser may, in its
discretion, purchase and sell portfolio securities from and to brokers and
dealers who provide the Adviser with brokerage, research, analysis, advice, and
similar services, and the Adviser may pay to these brokers and dealers, in
return for such services, a higher commission or spread than may be charged by
other brokers and dealers, provided that the Adviser determines in good faith
that such commission is reasonable in terms either of that particular
transaction or of the overall responsibility of the Adviser to the Fund and its
other clients and that the total commission paid by the Fund will be reasonable
in relation to the benefits to the Fund and its other clients over the
long-term. The Adviser will promptly communicate to the officers and the
trustees of the Trust such information relating to portfolio transactions as
they may reasonably request.
3. Compensation of the Adviser. The Fund will pay monthly to the Adviser an
investment advisory fee ("Fee") based on the Fund's average daily net assets at
the annual rate of 0.85% on the first $250 million of net assets, 0.75% on the
next $500 million of net assets, and 0.65% on net assets over $750 million. The
Fee shall be calculated as of the last business day of each month based upon the
average daily net assets of the Fund determined in the manner
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described in the Fund's Prospectus and/or SAI, and shall be paid to the Adviser
by the Fund within five days after such calculation.
4. Status of Investment Adviser. The services of the Adviser to the Trust
and the Fund are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others so long as its Services to the Trust and the
Fund are not impaired thereby. The Adviser 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 or the Fund in any way or otherwise
be deemed an agent of the Trust or the Fund. Nothing in this Agreement shall
limit or restrict the right of any director, officer, or employee of the
Adviser, who may also be a trustee, officer, or employee of the Trust, to engage
in any other business or to devote his time and attention in part to the
management or other aspects of any other business, whether of a similar or
dissimilar nature.
5. Permissible Interests. Trustees, agents, and stockholders of the Trust
are or may be interested in the Adviser (or any successor thereof) as directors,
partners, officers, or stockholders, or otherwise; and directors, partners,
officers, agents, and stockholders of the Adviser are or may be interested in
the Trust as trustees, stockholders, or otherwise; and the Adviser (or any
successor) is or may be interested in the Trust as a stockholder or otherwise.
6. Limits of Liability; Indemnification. The Adviser assumes no
responsibility under this Agreement other than to render the Services called for
hereunder. The Adviser shall not be liable for any error of judgment or for any
loss suffered by the Trust or the Fund in connection with the matters to which
this Agreement relates, except a loss resulting from a breach of fiduciary duty
with respect to receipt of compensation for services (in which case any award of
damages shall be limited to the period and the amount set forth in Section
36(b)(3) of the Act) or a loss resulting from willful misfeasance, bad faith,
gross negligence, or reckless disregard on its part in the performance of, or
from reckless disregard by it of its obligations and duties under, this
Agreement. It is agreed that the Adviser shall have no responsibility or
liability for the accuracy or completeness of the Trust's registration statement
under the 1940 Act or the Securities Act of 1933, as amended ("1933 Act"),
except for information supplied by the Adviser for inclusion therein. The Trust
agrees to indemnify the Adviser to the full extent permitted by the Trust's
Declaration of Trust.
7. Term. This Agreement shall remain in effect for an initial term of two
years from the date the Fund commences operation, and from year to year
thereafter provided such continuance is approved at least annually by the vote
of a majority of the trustees of the Trust who are not "interested persons" (as
defined in the 0000 Xxx) of the Trust, which vote must be cast in person at a
meeting called for the purpose of voting on such approval; provided, however,
that:
(a) the Trust may, at any time and without the payment of any
penalty, terminate this Agreement upon 60 days' written notice of
a decision to terminate this Agreement by (i) the Trust's
trustees; or (ii) the vote of a majority of the outstanding
voting securities of the Fund;
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(b) the Agreement shall immediately terminate in the event of its
assignment (within the meaning of the 1940 Act and the Rules
thereunder);
(c) the Adviser may, at any time and without the payment of any
penalty, terminate this Agreement upon 60 days' written notice to
the Trust and the Fund; and
(d) the terms of paragraph 6 of this Agreement shall survive the
termination of this Agreement.
8. Amendments. 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 no amendment of this Agreement shall be effective
until approved by vote of the holders of a majority of the Trust's outstanding
voting securities.
9. Applicable Law. This Agreement shall be construed in accordance with,
and governed by, the substantive laws of the State of Delaware without regard to
the principles of the conflict of laws or the choice of laws.
10. Representations and Warranties.
(a) Representations and Warranties of the Adviser. The Adviser hereby
represents and warrants to the Trust as follows: (i) the Adviser
is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware and is fully
authorized to enter into this Agreement and carry out its duties
and obligations hereunder; and (ii) the Adviser is registered as
an investment Adviser with the Securities and Exchange Commission
("SEC") under the Advisers Act, and shall maintain such
registration in effect at all times during the term of this
Agreement.
(b) Representations and Warranties of the Trust. The Trust hereby
represents and warrants to the Adviser as follows: (i) the Trust
has been duly organized as a statutory trust under the laws of
the State of Delaware and is authorized to enter into this
Agreement and carry out its terms; (ii) the Trust is registered
as an investment company with the SEC under the 1940 Act; (iii)
shares of the Fund are (or will be) registered for offer and sale
to the public under the 1933 Act; and (iv) such registrations
will be kept in effect during the term of this Agreement.
11. Structure of Agreement. The Trust is entering into this Agreement
solely on behalf of the Fund. Without limiting the generality of the foregoing:
(a) no breach of any term of this Agreement shall create a right or obligation
with respect to any series of the Trust other than the Fund; (b) under no
circumstances shall the Adviser have the right to set off claims relating to the
Fund by applying property of any other series of the Trust; and (c) the business
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and contractual relationships created by this Agreement, consideration for
entering into this Agreement, and the consequences of such relationship and
consideration relate solely to the Trust and the Fund.
12. Use of Names. The Trust acknowledges that all rights to the name "NCM
CAPITAL " belongs to the Adviser, and that the Trust is being granted a limited
license to use such words in its name, the name of its series, and the name of
its classes of shares.
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 and, to this extent, the provisions of
this Agreement shall be deemed to be severable.
14. Notice. Notices of any kind to be given to the Trust hereunder by the
Adviser shall be in writing and shall be duly given if mailed or delivered to
the NCM Capital Investment Trust at 0000 Xxxxxx-Xxxxxx Xxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx Xxxxxxxx 00000, Attention: (Xxxxx X. Xxxxx), with a copy to
The Nottingham Company at 000 Xxxxx Xxxxxxxx Xxxxxx, Post Xxxxxx Xxx 00, Xxxxx
Xxxxx, XX 00000-0000, Attention: A. Xxxxx Xxxxxxx or to such other address or to
such individual as shall be so specified by the Trust to the Adviser. Notices of
any kind to be given to the Adviser hereunder by the Trust shall be in writing
and shall be duly given if mailed or delivered to NCM Capital Advisers, Inc.,
0000 Xxxxxx-Xxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx Xxxxxxxx 00000, or
at such other address or to such individual as shall be so specified by the
Adviser to the Trust. Notices shall be deemed received when delivered in person
or within four days after being deposited in the United States mail, postage
prepaid, registered or certified mail, return receipt requested or upon receipt
of proof of delivery when sent by overnight mail or overnight courier, addressed
as stated above.
15. Notice of Change in Membership. The Adviser is hereby obligated to
notify the Trust if there is a change in the Adviser's partnership, whether of
general or limited partners, within a reasonable time after such change takes
place.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and the year first written above.
NCM Capital Investment Trust NCM Capital Advisers, Inc.
/s/ Xxxx X. Xxxx, Xx. /s/ Xxxxx X. Xxxxx
__________________________________ ____________________________________
By: Xxxx X. Xxxx, Xx. By: Xxxxx X. Xxxxx
Title: Trustee Title: Chairman
[Seal] [Seal]
The Fund commenced operations on April __, 2007.
