Exhibit 5(v) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of , 1993 by and between BT PACIFIC BASIN EQUITY
PORTFOLIO, a series of BT INVESTMENT PORTFOLIOS, a New York trust (herein called
the "Portfolio") and BANKERS TRUST COMPANY (herein called the "Investment
Adviser").
WHEREAS, the Portfolio is registered as an open-end diversified management
investment company under the Investment Company Act of 1940;
WHEREAS, the Portfolio desires to retain the Investment Adviser to render
investment advisory and other services, and the Investment Adviser is willing to
so render such services on the terms hereinafter set forth;
NOW, THEREFORE, this Agreement
W I T N E S S E T H:
In consideration of the promises and mutual covenants herein contained, it
is agreed between the parties as follows:
1. Appointment. The Portfolio hereby appoints the Investment Adviser to
act as investment adviser to the Portfolio for the period and on the terms set
forth in this Agreement. The Investment Adviser accepts such appointment and
agrees to render the services herein set forth for the compensation herein
provided.
2. Management. Subject to the supervision of the Board of Trustees of the
Portfolio, the Investment Adviser will provide a continuous investment program
for the Portfolio, including investment research and management with respect to
all securities, investments, cash and cash equivalents in the Portfolio. The
Investment Adviser will determine from time to time what securities and other
investments will be purchased, retained or sold by the Portfolio. The Investment
Adviser will provide the services rendered by it hereunder in accordance with
the Portfolio's investment objective(s) and policies as stated in the
Portfolio's then-current Registration Statement on Form N-1A. The Investment
Adviser further agrees that it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission (herein called the "Rules") and with the
Securities Act of 1933, the Securities Exchange Act of 1934, the Investment
Company Act of 1940 (the "1940 Act") and the Investment Advisers Act of 1940,
all as amended, and will in addition conduct its activities under this Agreement
in accordance with regulations of the Board of Governors of the Federal Reserve
System pertaining to the investment advisory activities of bank holding
companies and their subsidiaries;
(b) will place orders pursuant to its investment determinations for the
Portfolio either directly with the issuer or with any broker or dealer selected
by it. In placing orders with brokers and dealers, the Investment Adviser will
use its reasonable best efforts to obtain the best net price and the most
favorable execution of its orders, after taking into account all factors it
deems relevant, including the 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 the commission, if any, both for the
specific transaction and on a continuing basis. Consistent with this obligation,
the Investment Adviser may, to the extent permitted by law, purchase and sell
portfolio securities to and from brokers and dealers who provide brokerage and
research services (within the meaning of Section 28(e) of the Securities
Exchange Act of 1934) to or for the benefit of any fund and/or other accounts
over which the Investment Adviser or any of its affiliates exercises investment
discretion. Subject to the review of the Portfolio's Board of Trustees from time
to time with respect to the extent and continuation of the policy, the
Investment Adviser is authorized to pay to a broker or dealer who provides such
brokerage and research services a commission for effecting a securities
transaction which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Investment
Adviser determines in good faith that such 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 Investment Adviser with respect to the accounts as to
which it exercises investment discretion;
(c) will maintain books and records with respect to the Portfolio's
securities transactions and will render to the Portfolio's Board of Trustees
such periodic and special reports as the Board may request; and
(d) upon the approval of a majority of the outstanding voting
securities of the Portfolio and the Portfolio's Board of Trustees in the manner
specified in Section 8 hereof, and subject to the supervision of the Portfolio's
Board of Trustees, the Investment Adviser may cause to be furnished to the
Portfolio the foregoing investment management services by delegating such
services to a sub-investment adviser (the "Sub-Adviser"). In the event of such
delegation, included among the specific services to be provided directly by the
Investment Adviser are: the selection and compensation of the Sub-Adviser; the
review of all purchases and sales of portfolio instruments made by the Portfolio
to assess compliance with its stated investment objective and policies; the
monitoring of the selection of brokers and dealers effecting transaction on
behalf of the Portfolio; the maintenance and furnishing of all required records
or reports pertaining to the Portfolio to the extent those records or reports
are not maintained or furnished by the Sub-Adviser or other agents employed by
the Portfolio; and the providing of general administrative services to the
Portfolio not otherwise provided by the Sub-Adviser or other agents employed by
the Portfolio.
3. Services Not Exclusive. The investment management services rendered by
the Investment Adviser hereunder are not to be deemed exclusive, and the
Investment Adviser shall be free to render similar services to others so long as
its services under this Agreement are not impaired thereby.
4. Books and Records. In compliance with the requirements of Rule 31a-3 of
the Rules under the 1940 Act, the Investment Adviser hereby agrees that all
records which it or any Sub-Adviser maintains for the Portfolio are the property
of the Portfolio and further agrees to surrender, or cause to be surrendered,
promptly to the Portfolio any of such records upon the Portfolio's request. The
Investment Adviser further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31a-1
under the 1940 Act and to comply in full with the requirements of Rule 204-2
under the Investment Advisers Act of 1940 pertaining to the maintenance of books
and records.
5. Expenses. During the term of this Agreement, the Investment Adviser
will pay all expenses incurred by it in connection with its activities under
this Agreement other than the cost of securities (including brokerage
commissions, if any) purchased for the Portfolio.
In addition, if the aggregate expenses borne by the Portfolio in any
fiscal year of the Portfolio exceed the applicable expense limitations imposed
by the securities regulations of any state in which the beneficial interests in
the Portfolio are registered or qualified for sale to the public, the Investment
Adviser shall reimburse the Portfolio for the excess expense to the extent
required by state law.
6. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, the Portfolio will pay the Investment Adviser and
the Investment Adviser will accept as full compensation therefor a fee, computed
daily and payable monthly, in an amount equal to the annual rate of .75% of the
Portfolio's average daily net assets.
7. Limitation of Liability of the Investment Adviser; Indemnification.
(a) The Investment Adviser shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Portfolio in
connection with the matters to which this Agreement relates, except a loss
resulting from a breach of fiduciary duty with respect to the receipt of
compensation for services or a loss resulting from willful misfeasance, bad
faith or gross negligence on the part of the Investment Adviser in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
(b) Subject to the exceptions and limitations contained in Section 7(c)
below:
(i) the Investment Adviser (hereinafter referred to as a "Covered
Person") shall be indemnified by the Portfolio to the fullest extent
permitted by law, against liability and against all expenses reasonably
incurred or paid by him in connection with any claim, action, suit or
proceeding in which he becomes involved, as a party or otherwise, by
virtue of his being or having been the Investment Adviser of the
Portfolio, and against amounts paid or incurred by him in the
settlement thereof;
(ii) the words "claim," "action," "suit," or "proceeding" shall
apply to all claims, actions, suits or proceedings (civil, criminal or
other, including appeals), actual or threatened while in office or
thereafter, and the words "liability" and "expenses" shall include,
without limitation, attorneys' fees, costs, judgments, amounts paid in
settlement, fines, penalties and other liabilities.
(c) No indemnification shall be provided hereunder to a Covered Person:
(i) who shall have been adjudicated by a court or body before which
the proceeding was brought (A) to be liable to the Portfolio or its
investors by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of his
office or (B) not to have acted in good faith in the reasonable belief
that his action was in the best interest of the Portfolio; or
(ii) in the event of a settlement, unless there has been a
determination that such Covered Person did not engage in willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of his office,
(A) by the court or other body approving the settlement; or
(B) by at least a majority of those Trustees who are neither
Interested Persons of the Portfolio nor are parties to the matter
based upon a review of readily available facts (as opposed to a full
trial-type inquiry); or
(C) by written opinion of independent legal counsel based upon a
review of readily available facts (as opposed to a full trial-type
inquiry); provided, however, that any investor in the Portfolio may,
by appropriate legal proceedings, challenge any such determination
by the Trustees or by independent counsel.
(d) The rights of indemnification herein provided may be insured
against by policies maintained by the Portfolio, shall be severable, shall not
be exclusive of or affect any other rights to which any Covered Person may now
or hereafter be entitled, shall continue as to a person who has ceased to be a
Covered Person and shall inure to the benefit of the successors and assigns of
such person. Nothing contained herein shall affect any rights to indemnification
to which Portfolio personnel and any other persons, other than a Covered Person,
may be entitled by contract or otherwise under law.
(e) Expenses in connection with the preparation and presentation of a
defense to any claim, suit or proceeding of the character described in
subsection (b) of this Section 7 may be paid by the Portfolio from time to time
prior to final disposition thereof, upon receipt of an undertaking by or on
behalf of such Covered Person that such amount will be paid over by him to the
Portfolio if it is ultimately determined that he is not entitled to
indemnification under this Section 7; provided, however, that either (i) such
Covered Person shall have provided appropriate security for such undertaking or
(ii) the Portfolio shall be insured against losses arising out of any such
advance payments, or (iii) either a majority of the Trustees who are neither
Interested Persons of the Portfolio nor parties to the matter, or independent
legal counsel in a written opinion, shall have determined, based upon a review
of readily available facts as opposed to a trial-type inquiry or full
investigation, that there is reason to believe that such Covered Person will be
entitled to indemnification under this Section 7.
8. Duration and Termination. This Agreement shall be effective as to the
Portfolio as of the date the Portfolio commences investment operations after
this Agreement shall have been approved by the Board of Trustees of the
Portfolio and the investor(s) in the Portfolio in the manner contemplated by
Section 15 of the 1940 Act and, unless sooner terminated as provided herein,
shall continue until the second anniversary of such date. Thereafter, if not
terminated, this Agreement shall continue in effect as to the Portfolio for
successive periods of 12 months each, provided such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Board of Trustees of the Portfolio 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 Board of Trustees of the
Portfolio or by vote of a Majority of the Outstanding Voting Securities of the
Portfolio; provided, however, that this Agreement may be terminated by the
Portfolio at any time, without the payment of any penalty, by the Board of
Trustees of the Portfolio, by vote of a Majority of the Outstanding Voting
Securities of the Portfolio on 60 days' written notice to the Investment
Adviser, or by the Investment Adviser as to the Portfolio at any time, without
payment of any penalty, on 90 days' written notice to the Portfolio. This
Agreement will immediately terminate in the event of its Assignment. (As used in
this Agreement, the terms "Majority of the Outstanding Voting Securities,"
"Interested Person" and "Assignment" shall have the same meanings as such terms
have in the 1940 Act and the rules and regulatory constructions thereunder.)
9. Amendment of this Agreement. No material term 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 a material term of this
Agreement shall be effective until approved by vote of a Majority of the
Outstanding Voting Securities of the Portfolio.
10. (a) Representations and Warranties. The Investment Adviser hereby
represents and warrants as follows:
(i) The Investment Adviser is exempt from registration under the
Investment Advisers Act of 1940;
(ii) The Investment Adviser has all requisite authority to enter
into, execute, deliver and perform its obligations under, this
Agreement;
(iii) This Agreement is legal, valid and binding, and enforceable
in accordance with its terms; and
(iv) The performance by the Investment Adviser of its obligations
under this Agreement does not conflict with any law to which it is
subject.
(b) Covenants. The Investment Adviser hereby covenants and agrees
that, so long as this Agreement shall remain in effect,
(i) The Investment Adviser shall remain either exempt from, or
registered under, the registration provisions of the Investment
Advisers Act of 1940; and
(ii) The performance by the Investment Adviser of its obligations
under this Agreement shall not conflict with any law to which it is
then subject.
11. Notices. Any notice required to be given pursuant to this Agreement
shall be deemed duly given if delivered or mailed by registered mail, postage
prepaid, (a) to the Investment Adviser at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or (b) to the Portfolio at 0 Xx. Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
12. Waiver. With full knowledge of the circumstances and the effect of its
action, the Investment Adviser hereby waives any and all rights which it may
acquire in the future against the property of any investor in the Portfolio,
other than beneficial interests in the Portfolio at their then net asset value,
which arise out of any action or inaction of the Portfolio under this Agreement.
13. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. 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.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and shall be governed by the laws
of the State of New York, without reference to principles of conflicts of law
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their offices designated below as of the day and year first above
written.
Attest: BT INVESTMENT PORTFOLIOS
By:
Name:
Title:
Attest: BANKERS TRUST COMPANY
By:
Name:
Title:
