EXHIBIT (d)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of May 1, 2001 between the Eureka Funds, a
Massachusetts business trust (hereinafter called the "Trust"), and Eureka
Investment Advisors, Inc., a California corporation registered under the
Investment Adviser's Act of 1940 with its principal office in Los Angeles,
California (hereinafter called the "Investment Adviser").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Trust desires to retain the Investment Adviser to furnish
certain investment advisory and related services described below in connection
with the management of each of the investment portfolios of the Trust identified
on Schedule A hereto (the "Funds"), and the Investment Adviser desires to
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints the Investment Adviser to act
as investment adviser to the Funds for the period and on the terms set forth in
this Agreement. The Investment Adviser accepts such appointment and agrees to
furnish the services herein set forth for the compensation herein provided.
2. Delivery of Documents. The Trust has furnished the Investment
Adviser with copies properly certified or authenticated of each of the following
documents:
(a) the Trust's Agreement and Declaration of Trust, dated
April 7, 1997 and filed with the Secretary of State of The Commonwealth of
Massachusetts, and all amendments thereto or restatements thereof (such
Agreement and Declaration of Trust, as presently in effect and as it shall from
time to time be amended or restated, is herein called the "Declaration of
Trust");
(b) the Trust's Bylaws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing
the appointment of the Investment Adviser and approving this Agreement;
(d) the Trust's original Notification of Registration on Form
N-8A under the 1940 Act as filed with the Securities and Exchange Commission on
July 31, 1997 and all amendments thereto;
(e) the Trust's current Registration Statement on Form N-lA
under the Securities Act of 1933, as amended ("1933 Act"), and under the 1940
Act as filed with the Securities and Exchange Commission; and
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(f) the Funds' most recent prospectuses and the Trust's
Statement of Additional Information relating to the Funds (such prospectuses and
Statement of Additional Information, as presently in effect, and all amendments
and supplements thereto are herein collectively called the "Prospectus" or the
"Prospectuses").
The Trust will promptly furnish the Investment Adviser with copies of
all amendments of or supplements to the foregoing documents.
3. Management. Subject to the supervision of the Trust's Board of
Trustees, the Investment Adviser will provide or cause to be provided a
continuous investment program for each Fund identified on Schedule A hereto,
including investment research and management with respect to all securities and
investments and cash equivalents in such Funds. The Investment Adviser will
determine or cause to be determined from time to time what securities and other
investments will be purchased, retained or sold by the Trust with respect to
each Fund identified on Schedule A hereto and will place or cause to be placed
orders for purchase and sale on behalf of the Trust with respect to such Fund.
The Investment Adviser will provide the services under this Agreement
in accordance with each Fund's investment objective, policies and restrictions
as stated in the Prospectuses, resolutions of the Trust's Board of Trustees, and
any undertakings with regulatory authorities which are provided by the Trust to
the Investment Adviser. The Investment Adviser further agrees that it:
(a) will use the same skill and care in providing such
services as it uses in providing services to fiduciary accounts for which it has
investment responsibilities;
(b) will comply in all material respects with all applicable
Rules and Regulations of the Securities and Exchange Commission under the
Investment Company Act of 1940 and in addition will conduct its activities under
this Agreement in accordance with any applicable regulations pertaining to the
investment advisory activities of the Investment Adviser;
(c) will place or cause to be placed orders for the Funds
identified on Schedule A hereto either directly with the issuer or with any
broker or dealer and, in placing orders with brokers and dealers, the Investment
Adviser or any sub-investment adviser employed by the Investment Adviser will
attempt to obtain prompt execution of orders in an effective manner at the most
favorable price. Consistent with this obligation, when the execution and price
offered by two or more brokers or dealers are comparable, the Investment Adviser
or any sub-investment adviser employed by the Investment Adviser may, in its
discretion, purchase and sell portfolio securities to and from brokers and
dealers who provide the Investment Adviser or any such subinvestment adviser
with research advice and other services; and
(d) will treat confidentially and as proprietary information
of the Trust all records and other information relative to the Trust and prior,
present, or potential shareholders of the Trust learned by, or disclosed to, the
Investment Adviser in the course of its performance of its responsibilities and
duties under this Agreement, and will not use such records and information
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for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Trust, which approval shall not be unreasonably withheld and may not be withheld
where the Investment Adviser may be exposed to civil, regulatory, or criminal
sanctions for failure to comply when requested to divulge such information by
duly constituted authorities, or when so requested by the Trust.
4. Use of Sub-Investment Adviser. The Investment Adviser may, subject
to the approvals required under the 1940 Act, employ a sub-investment adviser to
assist the Investment Adviser in the performance of its duties under this
Agreement. Such use does not relieve the Investment Adviser of any duty or
liability it would otherwise have under this Agreement. Compensation of any such
sub-investment adviser for services provided and expenses assumed under any
agreement between the Investment Adviser and such sub-investment adviser
permitted under this paragraph is the sole responsibility of the Investment
Adviser.
5. Services Not Exclusive. The investment management services furnished
by the Investment Adviser hereunder are not to be deemed exclusive. Except to
the extent necessary to perform the Investment Adviser's obligations under this
Agreement, nothing herein shall be deemed to limit or restrict the right of the
Investment Adviser, or any subsidiary or affiliate of the Investment Adviser, or
any employee of the Investment Adviser, to engage in any other business or to
devote time and attention to any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other person.
6. Books and Records. In compliance with the requirements of Rule 3la-3
under the 1940 Act, the Investment Adviser hereby agrees that all records which
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Investment Adviser further agrees to preserve for the periods prescribed by
Rule 3la-2 under the 1940 Act the records required to be maintained by Rule
3la-1 under the 1940 Act.
7. 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 or charges, if any) purchased for the Trust. The Trust will be
responsible for all of the Trust's expenses and liabilities.
8. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, each of the Funds will pay the Investment Adviser
and the Investment Adviser will accept as full compensation therefor a fee
computed daily and paid monthly on the first business day of each month equal to
the lesser of (i) the fee at the applicable annual rate set forth on Schedule A
hereto or (ii) such fee as may from time to time be agreed upon in writing by
the Trust and the Investment Adviser. If the fee payable to the Investment
Adviser pursuant to this paragraph begins to accrue after the beginning of any
month or if this Agreement terminates before the end of any month, the fee for
the period from such date to the end of such month or from the beginning of such
month to the date of termination, as the case may be, shall be prorated
according to the proportion which such period bears to the full month in which
such effectiveness or termination occurs. For purposes of calculating fees, the
value of a Fund's net
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assets shall be computed in the manner specified in the Prospectus and the
Trust's Declaration of Trust for the computation of the value of the Fund's net
assets in connection with the determination of the net asset value of the Fund's
shares.
9. Limitation of Liability. The Investment Adviser shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the
Funds in connection with the performance of this Agreement, except a loss
resulting from a breach of fiduciary duty under the Investment Company Act of
1940 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. In no case
shall the Investment Adviser be liable for actions taken or nonactions with
respect to the performance of services under this Agreement based upon specific
information, instructions, or requests given or made to the Investment Adviser
by an officer of the Trust thereunto duly authorized. Notwithstanding the
foregoing, nothing in this paragraph should be deemed to be a waiver or
limitation of any rights any Fund may have under the Federal securities laws.
10. Duration and Termination. This Agreement will become effective as
to a particular Fund as of the date first written above, provided that it shall
have been approved by vote of a majority of the outstanding voting securities of
such Fund, in accordance with the requirements under the 1940 Act, and, unless
sooner terminated as provided herein, shall continue in effect until May 31,
2002. Thereafter, if not terminated, this Agreement shall continue in effect as
to a particular Fund for successive periods of twelve months each ending on May
31 of each year, provided such continuance is specifically approved at least
annually (a) by the vote of a majority of those members of the Trust's Board of
Trustees who are not parties to this Agreement or interested persons of any
party to this Agreement, cast in person at a meeting called for the purpose of
voting on such approval, and (b) by the vote of a majority of the Trust's Board
of Trustees or by the vote of a majority of the outstanding voting securities of
such Fund. Notwithstanding the foregoing, this Agreement may be terminated as to
a particular Fund at any time on sixty days' written notice, without the payment
of any penalty, by the Trust (by vote of the Trust's Board of Trustees or by
vote of a majority of the outstanding voting securities of such Fund) or by the
Investment Adviser. 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 persons" and "assignment" shall have
the same meaning of such terms in the 1940 Act.)
11. Amendment of this Agreement. 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.
12. Legal Advice. The Investment Adviser shall notify the Trust at any
time the Investment Adviser believes that it is in need of the advice of counsel
with regard to its responsibilities and duties pursuant to this Agreement; if
the Investment Adviser wishes to seek the advice of legal counsel to the Trust
it must first notify the Trust and seek its approval, which shall not be
unreasonably withheld, such advice to be at the expense of the Trust or Funds
unless
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relating to a matter involving the Investment Adviser's willful misfeasance, bad
faith, gross negligence or reckless disregard with respect to the Investment
Adviser's responsibilities and duties hereunder and the Investment Adviser shall
in no event be liable to the Trust or any Fund or any shareholder or beneficial
owner of the Trust for any action reasonably taken pursuant to such advice.
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.
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 address furnished by the other party to the party giving notice: if to the
Trust, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxx;
and if to the Investment Adviser, at Eureka Investment Advisors, Inc., 000 X.
Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx.
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 State of California.
The names "Eureka Funds" and "Trustees of Eureka Funds" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Agreement and
Declaration of Trust dated as of April 7, 1997 to which reference is hereby made
and a copy of which is on file at the office of the Secretary of State of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any and
all amendments thereto so filed or hereafter filed. The obligations of "Eureka
Funds" entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities, and
are not binding upon any of the Trustees, shareholders or representatives of the
Trust personally, but bind only the assets of the Trust, and all persons dealing
with any series of shares of the Trust must look solely to the assets of the
Trust belonging to such series for the enforcement of any claims against the
Trust.
14. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH PARTY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
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Each party hereby agrees that service of all process in any such proceeding in
any such court may be made by registered or certified mail, return receipt
requested, to such party at its address provided in Section 13, such service
being hereby acknowledged by such party to be sufficient for personal
jurisdiction in any action against such party in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of a party to bring proceedings against any other party in the
courts of any other jurisdiction.
15. WAIVER OF JURY TRIAL. EACH PARTY HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each party acknowledges that this waiver is a material
inducement for the other parties to enter into a business relationship, that
such parties have already relied on this waiver in entering into this Agreement
and that each will continue to rely on this waiver in their related future
dealings. Each party further warrants and represents that it has reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
EUREKA FUNDS
By: /S/ Irimga XxXxx
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Title: President
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EUREKA INVESTMENT ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: President & CEO
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