INVESTMENT ADVISORY AGREEMENT with UTC FUND SERVICES, INC.
with
UTC
FUND SERVICES, INC.
THIS
INVESTMENT ADVISORY AGREEMENT (this “Agreement”), executed as of the 26th day of
February, 2009, and made effective as of the 1st day of March, 2009, by and
between UTC North American Fund, Inc. (the “Client”), and UTC Fund Services,
Inc. (the “Adviser”).
WITNESSETH
:
WHEREAS, the Client is the
owner or custodian of, or otherwise has investment authority with respect to,
securities, cash and other property of the UTC North American Fund (such
securities, cash and other property collectively herein referred to as the
“Fund”) held in one or more accounts (collectively, the “Account”);
and
WHEREAS, the Client desires to
appoint the Adviser to serve as investment adviser with respect to the Account
(in such capacity, the Adviser being referred to hereinafter as “Investment
Adviser”); and
WHEREAS, the Adviser is a
“registered investment adviser” under the Investment Advisers Act of
1940;
NOW, THEREFORE, in
consideration of the premises and of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
I.
APPOINTMENT. The
Adviser is hereby appointed to serve as Investment Adviser with respect to the
Account. The Adviser hereby accepts its appointment subject to the
terms and conditions of this Agreement.
II.
DUTIES AND POWERS OF
INVESTMENT ADVISER.
A. Duties
1. Subject
to any restrictions and/or guidelines contained in Exhibit “A” attached
hereto and by this reference incorporated herein, and any additional
restrictions and/or guidelines as may from time to time be communicated in
writing by the Client, the Adviser shall from time to time invest and reinvest
the Fund and keep the same invested, in its sole discretion, without distinction
between principal and income, in any property, real, personal or mixed, or share
or part thereof, or part interest thereof, or part interest therein, wherever
situated, and whether or not productive of income, including, without
limitation, capital, common and preferred stock, and short-term investment
funds.
2. The
Adviser shall discharge its duties with the care, skill, prudence and diligence
under the circumstances then prevailing that a responsible fiduciary acting in a
like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, and by diversifying the
investments under management so as to minimize the risk of large losses, unless
under the circumstances it is clearly prudent not to do so. It is
agreed that the standard set forth in the foregoing sentence constitutes the
sole standard of care imposed upon the Adviser by this Agreement.
3. In
the performance of its duties hereunder, the Adviser shall act in accordance
with the investment guidelines which the Client may, from time to time, have
furnished to the Adviser in writing subject only to such limitations as the
Client may impose, or as may otherwise be imposed by law.
4. The
Adviser will provide the Client with such periodic reports as the Client and the
Adviser may mutually agree; provided, however, that reports as to the status and
investments in the Account shall be provided no less frequently than
quarterly.
X. Xxxxxx. The
Client hereby appoints the Adviser its agent and attorney-in-fact with respect
to, and hereby confers, and the Adviser hereby acknowledges, the following
powers in the performance of its duties as Investment Adviser under this
Agreement:
1. To
direct the purchase or subscription for any securities or property;
2. To
direct the sale, exchange, conveyance, transfer or other disposition of any
stocks, bonds or other securities held in the Account or comprising the Fund, by
private contract or at public auction, with or without advertising;
3. To
vote any stocks, bonds, or other securities; to give general or special proxies
or powers of attorney with or without power of substitution; to exercise any
conversion privileges, subscription rights or other options, and to make any
payments incidental thereto; to oppose or to consent to, or otherwise
participate in, corporate reorganizations or other changes affecting corporate
securities, and to delegate discretionary powers, and to pay any assessments or
charges in connection therewith, and generally to exercise any of the powers of
an owner with respect to stocks, bonds, or other securities of the Fund;
provided, that all such powers shall be exercised by the Adviser in its sole and
absolute discretion subject only to its general fiduciary obligations to the
Client as set forth in Section IIA(2) above;
4. To
direct the writing of covered call options and the purchase or sale of put
options and financial futures contracts;
5. To
make, execute, acknowledge and deliver any and all documents that may be
necessary to carry out the powers of the Adviser, as Investment
Adviser;
6. To
carry out the duties set forth in Subsection IIA of this Agreement;
7. To
direct the placement of brokerage orders with respect to assets comprising the
Fund with such broker or brokers as the Adviser shall select;
8. Investment
Adviser may not act as a principal in any transaction with the Client, but
Investment Adviser may effect any agency cross transaction in compliance with
the provisions of applicable law. From time to time securities to be
sold on behalf of another of Investments Adviser’s clients may be suitable for
purchase on behalf of the Client Account and vice versa. In such
instances, if Investment Adviser determines in good faith that the transaction
is in the best interest of each client, the Client agrees that Investment
Adviser may arrange for the securities to be transferred between the Client
Account and such other Investment Adviser client account at the then
independently determined fair market value (a “cross trade”) provided neither
Investment Adviser nor any broker-dealer affiliated with Investment Adviser
shall receive a commission directly or indirectly in connection with such cross
trade, and provided such transaction is otherwise permissible for the Client
under applicable law; and
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9. Generally,
to do all such acts and to execute and deliver all such instruments as in the
judgment of the Adviser may be necessary or desirable to carry out any powers or
authority of the Adviser under this Agreement, without advertisement and without
order of court, and without having to post bond or make any returns or report of
its doings to any court.
C. Investment
Decisions. The Adviser shall have full power to make and act
upon all investment decisions with respect to the Fund, in its sole discretion,
subject only to the terms of this Agreement, as amended from time to
time.
D. Compensation. The
compensation of the Adviser as Investment Adviser shall be such as is set forth
in the Adviser’s separate published fee schedule in effect from time to time, a
current copy of which is attached hereto, and by this reference incorporated
herein, as Exhibit “B,” except that no increase in fees shall be effective until
90 days after notice thereof to the Client. Unless otherwise provided
in Exhibit “B,” payment to the Adviser shall be made quarterly, based on a
calendar year, and the fee shall be due and payable within 15 days after the end
of each quarterly period. If this Agreement commences at any time
other than at the beginning of a quarterly period, the first quarterly fee shall
be prorated to the end of such first quarterly period. At no time
will the Adviser be compensated on the basis of a share of capital gains or
capital appreciation of the Fund except as based upon the total value of the
Fund in accordance with the Adviser’s aforementioned fee schedule. If
this Agreement is terminated, all fees due to the Adviser shall be prorated to
the date of termination.
III. TRANSACTION
PROCEDURES. All transactions
will be consummated by payment to, or delivery by, the Client, or such other
party as the Client may designate in writing (the “Custodian”), of all cash
and/or securities due to or from the Account. The Adviser shall not
act as custodian for the Account, but may issue such instructions to the
Custodian as may be appropriate in connection with the settlement of
transactions initiated by the Adviser pursuant to the terms of this
Agreement. Instructions of the Adviser to the Client and/or the
Custodian shall be made in writing sent via facsimile (maintaining fax
acknowledgement report as proof of receipt), by first-class mail or, at the
option of the Adviser, orally and confirmed in writing as soon as practical
thereafter, and the Adviser shall instruct all brokers and dealers executing
orders on behalf of the Account to forward to the Client and/or the Custodian
copies of all confirmations promptly after execution of
transactions. The Adviser shall not be responsible for any loss
incurred by reason of any act or omission of any broker or dealer or the
Custodian; provided, however, that the Adviser will make reasonable
efforts to require that brokers and dealers selected by the Adviser perform
their obligations with respect to the Account.
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IV. ALLOCATION
OF BROKERAGE.
Where the Adviser places orders for the execution of portfolio
transactions for the Account, the Adviser may allocate such transactions to such
brokers and dealers for execution on such markets, at such prices and at such
commission rates as in the good faith judgment of the Adviser will be in the
best interest of the Account, taking into consideration in the selection of such
brokers and dealers not only the available prices and rates of brokerage
commissions, but also other relevant factors (such as, without limitation,
execution capabilities, research and other services provided by such brokers or
dealers which are expected to enhance the general portfolio management
capabilities of the Adviser, and the value of an ongoing relationship of the
Adviser with such brokers and dealers) without having to demonstrate that such
factors are of a direct benefit to the Account. The Client may direct
the Adviser to utilize specific brokers or dealers. The Client
represents that such direction shall be for the exclusive purpose of providing
benefits to participants and beneficiaries of the Account and shall not
constitute, or cause the Account to be engaged in any violation of federal or
state law with regard to “prohibited transactions” or
“parties-in-interest”.
V.
SERVICES
TO OTHER CLIENTS OF THE ADVISER. The Adviser may
perform investment advisory services for various clients other than the Client
and for accounts other than the Account. The Adviser may give advice
and take action with respect to other clients that differs from advice given or
action taken with respect to the Fund, so long as the Adviser attempts in good
faith reasonably to allocate investment opportunities to the Client and the
Account over a period of time on a fair and equitable basis compared to
investment opportunities extended to other clients. The Adviser is
not obligated to initiate the purchase or sale for the Client, or the Account,
of any security that the Adviser, its principals, affiliates or employees may
purchase or sell for its or their own accounts or for the account of any other
client, if in the reasonable opinion of the Adviser, such transaction or
investment appears unsuitable or undesirable for the Client or the
Account.
VI. CONFIDENTIAL
RELATIONSHIP. Except as
otherwise provided in this Section, all information and advice furnished by the
Client or the Adviser to the other, with respect to the Account, the Fund or
other matters pertaining to this Agreement, shall be treated as confidential and
shall not be disclosed to third parties except as required by law or as
necessary to carry out responsibilities set forth in this
Agreement.
VII. AUTHORITY
AND STATUS OF THE ADVISER AS INVESTMENT ADVISER. The Adviser
represents and warrants (i) that it is a registered investment adviser
under the Investment Advisers Act of 1940, (ii) that it has full power and
authority to enter into this Agreement, and (iii) that this Agreement has
been duly authorized and when executed and delivered will be binding upon the
Adviser. The Adviser acknowledges that as Investment Adviser it is a
fiduciary with respect to the Fund; provided, however, that the Adviser shall
not be considered a fiduciary to the extent that it does not have investment
discretion under this Agreement as a result of the restrictions, if any,
contained in Exhibit “A.”
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VIII. AUTHORITY
OF THE CLIENT. The Client
represents and warrants (i) that the Client has full power and authority to
enter into this Agreement, and (ii) that this Agreement has been duly
authorized and when executed and delivered will be binding upon the Client, the
Account and the Fund.
IX. DURATION
OF AGREEMENT; ENTIRE AGREEMENT. This Agreement
will remain in effect until terminated by either party hereto in accordance with
Section X hereof. This Agreement constitutes the entire agreement
between the Adviser and the Client, and supersedes any prior agreements or
understanding with respect to the subject matter hereof.
X.
TERMINATION;
PROHIBITION AGAINST ASSIGNMENT.
A. A
party to this Agreement may terminate this Agreement at any time upon notice by
registered or certified mail to the other parties in accordance with
Section XI hereof, which notice shall be given at least thirty (30) days
prior to the effective date of termination. Upon receiving or giving
notice of termination, and (if termination occurs by notice from the Client)
upon receipt by the Adviser of all fees payable to the Adviser pursuant to this
Agreement which are accrued but unpaid as of the date of such termination, the
Adviser shall, if so directed by the Client, make a full accounting to the
Client with respect to all assets managed by it since its appointment as
Investment Adviser.
B. This
Agreement shall terminate automatically in the event of any transfer or
assignment thereof, as defined in the Investment Company Act of
1940.
XI. NOTICES.
A. All
notices, requests and demands after the date of this Agreement, and any other
communications hereunder shall be deemed to have been duly given if in writing
and if delivered or sent by certified or registered mail, return receipt
requested, to the appropriate address indicated below or such other address as
may be given in a notice sent to the other parties hereto in accordance with
this Section XI. Such communication shall be effectively
delivered or received on the date on which delivered or on the date acknowledged
to have been received in return receipt.
B. The
Client hereby acknowledges receipt of the Adviser’s Form ADV, Part II
pursuant to Rule 204-3 under the Investment Advisers Act of
1940. The Adviser annually shall deliver, or offer in writing to
deliver, upon written request of the Client and without charge, Form ADV,
Part II.
XII. INDEMNIFICATION. The Client shall
indemnify and hold harmless the Adviser as Investment Adviser, from and against
any and all claims, losses, costs, expenses (including, without
limitation, attorneys’ fees and court costs), damages, actions or causes of
action arising from, on account of or in connection with the performance by the
Adviser of its duties as Investment Adviser hereunder, or on account of taking,
or in good faith failing to take, any actions in accordance with any
instructions communicated to the Investment Adviser, other than such of the
foregoing arising from, on account of or in connection with the bad faith, gross
negligence or breach of trust of the Adviser. The federal and state
securities laws impose liabilities under certain circumstances on persons who
act in good faith; nothing in this Agreement shall constitute a waiver or
limitation of any rights which the Client may have under applicable federal and
state securities laws.
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XIII. GOVERNING
LAW. The validity,
construction and operation of this Agreement shall be governed by the laws of
the State of Maryland, except where preempted by the provisions of federal
law.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed under seal by their
officers or agents thereunto duly authorized as of the day and year first above
written.
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ATTEST:
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By:
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Title:
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Name:
Title:
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Xxxxx
Xxxxxx
President
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Address:
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UTC
Financial Centre
82
Independence Square,
Port-of-Spain
Trinidad,
West Indies
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(SEAL)
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UTC
FUND SERVICES, INC.:
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ATTEST:
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By:
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Name:
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Xxxxxxx
Xxxxxxxxx
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Title:
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President
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Title:
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Address:
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UTC
Financial Centre
82
Independence Square,
Port-of-Spain
Trinidad,
West Indies
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(SEAL)
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EXHIBIT
A
DESCRIPTION
OF ANY RESTRICTION TO SECTION II(A)(1)
See
Statement of Additional Information.
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Initials
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Date:
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EXHIBIT
B
COMPENSATION
In
accordance with Section II(D) the fee to be paid to the Adviser shall be
computed as follows:
Balanced Account Fee
Schedule:
0.75% on
the first $10,000,000
0.50% on
the next $10,000,000
0.25%
thereafter
The fee
provided above is the annual fee charged by the Adviser for investment advisory
services. Fees are based on the market value of the assets under
management at the end of each calendar or fiscal quarter and are charged in
arrears. The quarterly fee is calculated by applying the annual rate
above to the total market value of the assets and then taking one-quarter of the
total as the quarterly fee. The fee payable to the Adviser may be
revised from time to time but no increase in fees shall be effective until 90
days after notice to the Client.
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Initials
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Date:
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