FORM OF
INVESTMENT ADVISORY AGREEMENT
______________ ___, 1999
CDC Investment Management Corporation
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
CDC MPT+ Funds (the "Trust"), a business trust organized and existing
under the laws of the State of Delaware, is an open-end, management investment
company that currently offers three portfolios, one of which is the
_________________ Fund (the "Fund"). The Trust on behalf of the Fund herewith
confirms its agreement with CDC Investment Management Corporation (the
"Adviser") as follows:
1. INVESTMENT DESCRIPTION; APPOINTMENT
The Trust desires to employ the capital of the Fund by investing and
reinvesting in investments of the kind and in accordance with the limitations
specified in its Trust Instrument, as may be amended from time to time, and in
its Prospectus and Statement of Additional Information relating to the Fund as
from time to time in effect (the "Prospectus" and "SAI," respectively), and in
such manner and to such extent as may from time to time be approved by the Board
of Trustees of the Trust. Copies of the Trust's Prospectus and SAI have been or
will be submitted to the Adviser. The Trust desires to employ and hereby
appoints the Adviser to act as investment adviser to the Fund. The Adviser
accepts the appointment and agrees to furnish the services for the compensation
set forth below.
2. SERVICES AS INVESTMENT ADVISER
Subject to the supervision and direction of the Board of Trustees of
the Trust, the Adviser will (a) act in strict conformity with the Trust
Instrument, the Investment Company Act of 1940 (the "1940 Act") and the
Investment Advisers Act of 1940, as the same may from time to time be amended,
(b) manage the Fund in accordance with the Fund's investment objective and
policies as stated in the Trust's Prospectus and SAI relating to the Fund, (c)
make investment decisions for the Fund, (d) place purchase and sale orders for
securities on behalf of the Fund, (e) exercise voting rights in respect of Fund
securities and other investments for the Fund, (f) pledge or assign assets of
the Fund and aggregate orders on behalf of the Fund with orders entered by the
Adviser on behalf of other clients of the Adviser to the extent consistent with
applicable law and (g) monitor and evaluate the services provided by the Fund's
investment sub-adviser(s), if any, under the terms of the applicable investment
sub-advisory agreement(s). In providing those services, the Adviser will
provide investment research and supervision of the Fund's investments and
conduct a continual program of investment, evaluation and, if appropriate, sale
and reinvestment of the Fund's assets. In addition, the Adviser will furnish
the Trust with whatever statistical information the Trust may reasonably request
with respect to the securities that the Fund may hold or contemplate purchasing.
Subject to the approval of the Board of Trustees of the Trust and
where required, the Trust's shareholders, the Adviser may engage an investment
sub-adviser or sub-advisers to provide advisory services in respect of the Fund
and may delegate to such investment sub-adviser(s) the responsibilities
described in subparagraphs (b) through (f) above. In the event that an
investment sub-adviser's engagement has been terminated, the Adviser shall be
responsible for furnishing the Fund with the services required to be performed
by such investment sub-adviser(s) under the applicable investment sub-advisory
agreements or arranging for a successor investment sub-adviser(s) to provide
such services on terms and conditions acceptable to the Trust and the Trust's
Board of Trustees and subject to the requirements of the 1940 Act.
3. BROKERAGE
In executing transactions for the Fund, selecting brokers or dealers
and negotiating any brokerage commission rates, the Adviser will use its best
efforts to seek the best overall terms available. In assessing the best overall
terms available for any portfolio transaction, the Adviser will consider all
factors it deems relevant including, but not limited to, breadth of the market
in the security, the price of the security, the financial condition and
execution capability of the broker or dealer and the reasonableness of any
commission for the specific transaction and for transactions executed through
the broker or dealer in the aggregate. In selecting brokers or dealers to
execute a particular transaction and in evaluating the best overall terms
available, the Adviser may consider the brokerage and research services (as
those terms are defined in Section 28(e) of the Securities Exchange Act of 1934,
as the same may from time to time be amended) provided to the Fund and/or other
accounts over which the Adviser or an affiliate exercises investment discretion.
4. INFORMATION PROVIDED TO THE TRUST
The Adviser will keep the Trust informed of developments materially
affecting the Fund, and will, on its own initiative, furnish the Trust from time
to time with whatever information the Adviser believes is appropriate for this
purpose.
5. STANDARD OF CARE; INDEMNIFICATION
The Adviser shall exercise its best judgment in rendering the services
listed in paragraphs 2, 3 and 4 above. The Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates, provided that
nothing herein shall be deemed to protect or purport to protect the Adviser
against any liability to the Trust or the Fund or to shareholders of the Trust
or the Fund 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 ("disabling conduct"). The Fund will indemnify the
Adviser against, and hold it harmless from, any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses) not
resulting from disabling conduct by the Adviser. Indemnification shall be made
only following: (i) a final decision on the merits by a court or other body
before whom the proceeding was brought that the Adviser was not liable by reason
of disabling conduct or (ii) in the absence of such a decision, a reasonable
determination, based upon a review of the facts, that the Adviser was not liable
by reason of disabling conduct by (a) the vote of a majority of a quorum of
Trustees of the Fund who are neither "interested persons" of the Fund nor
parties to the proceeding ("disinterested non-party Trustees") or (b) an
independent legal counsel in a written opinion. The Adviser shall be entitled
to advances from the Fund for payment of the reasonable expenses incurred by it
in connection with the matter as to which it is seeking indemnification in the
manner and to the fullest extent permissible under Delaware Law. The Adviser
shall provide to the Fund a written affirmation of its good faith belief that
the standard of conduct necessary for indemnification by the Fund has been met
and a written undertaking to repay any such advance if it should ultimately be
determined that the standard of conduct has not been met. In addition, at least
one of the following additional conditions shall be met: (a) the Adviser shall
provide security in form and amount acceptable to the Fund for its undertaking;
(b) the Fund is insured against losses arising by reason of the advance; or (c)
a majority of a quorum of disinterested non-party Trustees, or independent legal
counsel, in a written opinion, shall have determined, based on a review of facts
readily available to the Fund at the time the advance is proposed to be made,
that there is reason to believe that the Adviser will ultimately be found to be
entitled to indemnification.
6. LIMITATION OF LIABILITY
The Trust and the Adviser agree that the obligations of the Trust
under this Agreement will not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future, of the
Trust, individually, but are binding only upon the assets and property of the
Fund, as provided in the Trust Instrument. The execution
and delivery of this Agreement have been authorized by the Trustees of the
Trust, and signed by an authorized officer of the Trust, acting as such, and
neither the authorization by the Trustees nor the execution and delivery by the
officer will be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but will bind only the trust
property of the Trust as provided in the Trust Instrument. No series of the
Trust, including the Fund, will be liable for any claims against any other
series.
7. COMPENSATION
(a) The Fund shall pay to the Adviser and the Adviser agrees to
accept, as full compensation for all investment advisory services furnished or
provided to the Fund pursuant to this Agreement, an investment advisory fee at
the annual rate set forth in the Description of Fees attached hereto as APPENDIX
A.
(b) The investment advisory fee shall be accrued daily by the Fund
and paid to the Adviser on the fifth business day of the succeeding month.
(c) The initial fee under this Agreement shall be payable on the
fifth business day of the first month following the effective date of this
Agreement and shall be prorated as set forth below. If this Agreement is
terminated before the end of any month, the fee to the Adviser shall be prorated
for the portion of any month in which this Agreement is in effect which is not a
complete month according to the proportion which the number of calendar days in
the month during which the Agreement is in effect bears to the number of
calendar days in the month, and shall be payable within ten (10) days after the
date of termination.
8. EXPENSES
The Adviser will bear all expenses in connection with the performance
of its services under this Agreement, including the fees payable to any
investment sub-adviser engaged pursuant to paragraph 2 of this Agreement. The
Fund will bear its proportionate share of certain other expenses to be incurred
in its operation, including: investment advisory and administration fees;
taxes, interest, brokerage fees and commissions, if any; fees of Trustees of the
Trust who are not officers, trustees, or employees of the Adviser or any of its
affiliates; fees of any pricing service employed to value shares of the Fund;
Securities and Exchange Commission fees and state blue sky qualification fees;
charges of custodians and transfer and dividend disbursing agents; the Fund's
proportionate share of insurance premiums; outside auditing and legal expenses;
costs of maintenance of the Fund's existence; costs attributable to investor
services, including, without limitation, telephone and personnel expenses; costs
of preparing and printing prospectuses and statements of additional information
for regulatory purposes and for
distribution to existing shareholders; costs of shareholders' reports and
meetings of the shareholders of the Fund and of the officers or Board of
Trustees of the Trust; and any extraordinary expenses.
The Fund will be responsible for nonrecurring expenses which may
arise, including costs of litigation to which the Fund is a party and of
indemnifying officers and Trustees of the Trust with respect to such litigation
and other expenses as determined by the Trustees.
9. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The Trust understands that the Adviser now acts, will continue to act
and may act in the future as investment adviser to fiduciary and other managed
accounts and to one or more other investment companies or series of investment
companies, and the Trust has no objection to the Adviser so acting, provided
that whenever the Fund and one or more other accounts or investment companies or
portfolios advised by the Adviser have available funds for investment,
investments suitable and appropriate for each will be allocated in accordance
with a formula believed to be equitable to each entity. The Trust recognizes
that in some cases this procedure may adversely affect the size of the position
obtainable for the Fund. In addition, the Trust understands that the persons
employed by the Adviser to assist in the performance of the Adviser's duties
hereunder will not devote their full time to such service and nothing contained
herein shall be deemed to limit or restrict the right of the Adviser or any
affiliate of the Adviser to engage in and devote time and attention to other
businesses or to render services of whatever kind or nature, provided that doing
so does not adversely affect the ability of the adviser to perform its services
under this Agreement.
10. TERM OF AGREEMENT
This Agreement shall continue until December 31, 2000 and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (a) the Board of
Trustees of the Trust or (b) a vote of a "majority" (as defined in the 0000 Xxx)
of the Trust's outstanding voting securities, provided that in either event the
continuance is also approved by a majority of the Board of Trustees who are not
"interested persons" (as defined in said Act) of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. This Agreement is terminable, without penalty, on 60 days' written
notice, by the Board of Trustees of the Trust or by vote of holders of a
majority of the Fund's outstanding voting securities, or upon 90 days' written
notice, by the Adviser. This Agreement will also terminate automatically in the
event of its assignment (as defined in said Act).
11. REPRESENTATION BY THE TRUST
The Trust represents that a copy of its Certificate of Trust and Trust
Instrument, each dated October 8, 1998, together with all amendments thereto,
are on file in the State of Delaware.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
12. POWER OF ATTORNEY
The Trust hereby grants to the Adviser or any authorized person of the
Adviser (an "Authorized Person") the authority to act as its attorney-in-fact
under power of attorney for purposes of accomplishing on its behalf and on
behalf of the Fund any matters which are properly the subject of this Agreement,
including (i) to negotiate, execute, enter into and deliver, on behalf of the
Fund any and all agreements, consents, authorizations, assignments, revocations,
instructions or other instruments which such Authorized Person may think useful
for the sale, transfer, withdrawal or pledge of securities, the making of any
loans or borrowings of securities, the management of the Fund's assets or
generally the accomplishment of any of the purposes enumerated herein or in the
Trust's Prospectus and Statement of Additional Information relating to the Fund;
(ii) to sign or give any order or directions in writing to the Fund's
Administrator or any other service provider at any time for the purchase,
whether from or through the Fund's custodian or otherwise, of any securities or
other assets which may be held by the custodian at any time for or on behalf of
the Fund, whether in safekeeping, as security or otherwise, and for the
collection, deposit, withdrawal, investment or other disposition of all or any
of the proceeds thereof and/or of any dividends, interest or other amounts which
may be declared and/or paid relative thereto; and (iii) in general, to sign any
agreements, make any representations, give any directions or perform any other
acts (which the Fund may do through an attorney-in-fact), incidental to or
deemed by the Adviser to be necessary or proper in exercising any powers hereby
conferred. The Trust intends for this general power of attorney to be construed
in the broadest possible manner and for third parties to accept and rely upon
this power of attorney granted to the Adviser duly without further written
assurances from the Trust.
13. MISCELLANEOUS
The Trust recognizes that directors, officers and employees of the
Adviser may from time to time serve as directors, trustees, officers and
employees of corporations and business trusts (including other investment
companies) and that such other corporations and trusts may include the name
"CDC" as
part of their names, and that the Adviser or its affiliates may enter into
advisory or other agreements with such other corporations and trusts. If the
Adviser ceases to act as the investment adviser of the Fund's shares, the Trust
agrees that, at the Adviser's request, the Trust's license to use the words
"CDC" will terminate and that the Trust will take all necessary action to change
the name of the Trust and the Fund to names not including the words "CDC."
Very truly yours,
CDC MPT+ FUNDS
By:
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Name:
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Title:
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Accepted:
CDC INVESTMENT MANAGEMENT CORPORATION
By:
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Name:
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Title:
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