INVESTMENT ADVISORY AGREEMENT
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WPG GROWTH FUND
AGREEMENT made as of the 1st day of May, 1993, by and between WPG
GROWTH FUND, a Massachusetts business trust (the "Trust"), and XXXXX, XXXX &
XXXXX, a New York limited partnership (the "Investment Adviser" or "WPG").
The Trust is an open-end, management investment company, registered
under the Investment Company Act of 1940, as amended (the "1940 Act"). The
Investment Adviser is an investment adviser registered under the Investment
Advisers Act of 1940, as amended, and is a broker-dealer registered under the
Securities Exchange Act of 1934, as amended.
The Trust desires the Investment Adviser to render services to the
Trust, and the Investment Adviser is willing to render such services upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. INVESTMENT ADVISER. The Trust will, and hereby does, retain
the Investment Adviser to act as the investment adviser of the
Trust and to provide certain services, as more fully set forth
below, and the Investment Adviser hereby accepts such
retainer.
2. SUB-ADVISERS. The Investment Adviser may engage one or more
investment advisers which are either registered as such or
specifically exempt from registration under the Investment
Advisers Act of 1940, as amended, to act as sub-advisers to
provide with respect to the Trust certain services set forth
in Section 4 of this Agreement, all as shall be set forth in a
written contract to which the Trust and the Investment Adviser
shall be parties, which contract shall be subject to approval
by the vote of a majority of the Trustees of the Trust who are
not interested persons of the Investment Adviser, the
sub-adviser or of the Trust, cast in person at a meeting
called for the purpose of voting on such approval and by the
vote of a majority of the outstanding voting securities of the
Trust and otherwise consistent with the terms of the 1940 Act.
3. INFORMATION SUPPLIED BY THE TRUST. The Trust will, from time
to time, deliver to the Investment Adviser detailed statements
of the assets and resources of the Trust and information as to
its investment objectives.
4. ADVISORY SERVICES.
(a) The Investment Adviser will regularly provide the
Trust with investment research, advice and
supervision and will furnish continuously an
investment program for the Trust consistent with the
investment objectives and policies of the Trust. The
Investment Adviser will determine from time to time
what securities shall be purchased for the Trust,
what securities shall be held or sold by the Trust
and what portion of the Trust's assets shall be held
uninvested as cash, subject always to the provisions
of the Trust's Declaration of Trust, By-Laws and its
registration statement under the 1940 Act and under
the Securities Act of 1933 covering the Trust's
shares, as filed with the Securities and Exchange
Commission, and to the investment objectives,
policies and restrictions of the Trust, as each of
the same shall be from time to time in effect, and
subject, further, to such policies and instructions
as the Board of Trustees of the Trust may from time
to time establish. To carry out such determinations,
the Investment Adviser will place orders for the
investment and reinvestment of Trust assets. The
Investment Adviser will exercise full discretion and
act for the Trust in the same manner and with the
same force and effect as the Trust itself might or
could do with respect to purchases, sales or other
transactions, as well as with respect to all other
things necessary or incidental to the furtherance or
conduct of such purchases, sales or other
transactions.
(b) The Investment Adviser will, to the extent reasonably
required in the conduct of the business of the Trust
and upon its request, furnish to the Trust research,
statistical and advisory reports upon the industries,
businesses, corporations or securities as to which
such requests shall be made, whether or not the Trust
shall at the time have any investment in such
industries, businesses, corporations or securities.
The Investment Adviser will use its best efforts in
the preparation of such reports and will endeavor to
consult the persons and sources believed by it to
have information available with respect to such
industries, businesses, corporations or securities.
(c) The Investment Adviser will maintain all books and
records with respect to the Trust's securities
transactions required by sub-paragraphs
(b)(5),(6),(9) and (10) and paragraph (f) of Rule
31a-1 under the 1940 Act (other than those records
being maintained by the Trust's custodian or transfer
agent) and preserve such records
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for the periods prescribed therefor by Rule 31a-2 of
the 1940 Act. The Investment Adviser will also
provide to the Trust's Board of Trustees such
periodic and special reports as the Board may
reasonably request.
5. ALLOCATION OF CHARGES AND EXPENSES. The Investment Adviser
will pay all costs incurred by it in connection with the
performance of its duties under Section 4. The Investment
Adviser will pay the compensation and expenses of all of its
personnel and will make available, without expense to the
Trust, the services of such of its partners, officers and
employees as may duly be elected officers or Trustees of the
Trust, subject to their individual consent to serve and to any
limitations imposed by law. The Investment Adviser will not be
required to pay any expenses of the Trust other than those
specifically allocated to the Investment Adviser in this
paragraph 5. In particular, but without limiting the
generality of the foregoing, the Investment Adviser will not
be required to pay: (i) fees and expenses of any administrator
of the Trust; (ii) organization expenses of the Trust; (iii)
fees and expenses incurred by the Trust in connection with
membership in investment company organizations; (iv) brokers'
commissions; (v) payment for portfolio pricing services to a
pricing agent, if any; (vi) legal, accounting or auditing
expenses (including an allocable portion of the cost of its
employees rendering legal services to the Trust); (vii)
interest, insurance premiums, taxes or governmental fees;
(viii) the fees and expenses of the transfer agent of the
Trust; (ix) the cost of preparing stock certificates or any
other expenses, including clerical expenses of issue,
redemption or repurchase of shares of the Trust; (x) the
expenses of and fees for registering or qualifying shares for
sale and of maintaining the registration of the Trust and
registering the Trust as a broker or a dealer; (xi) the fees
and expenses of Trustees of the Trust who are not affiliated
with the Investment Adviser; (xii) the cost of preparing and
distributing reports and notices to shareholders, the
Securities and Exchange Commission and other regulatory
authorities; (xiii) the fees or disbursements of custodians of
the Trust's assets, including expenses incurred in the
performance of any obligations enumerated by the Declaration
of Trust or By-Laws of the Trust insofar as they govern
agreements with any such custodian; (xiv) costs in connection
with annual or special meetings of shareholders, including
proxy material preparation, printing and mailing; or (xv)
litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of
the Trust's business. The Investment Adviser shall not be
required to pay expenses of activities which are primarily
intended to result in sales of shares of the Trust.
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6. LIMITATION OF LIABILITY.
(a) THE INVESTMENT ADVISER. The Investment Adviser will
not be liable for any error of judgment or mistake of
law or for any loss sustained by reason of the
adoption of any investment policy or the purchase,
sale, or retention of any security on the
recommendation of the Investment Adviser, whether or
not such recommendation shall have been based upon
its own investigation and research or upon
investigation and research made by any other
individual, firm or corporation; but nothing
contained herein will be construed to protect the
Investment Adviser against any liability to the Trust
or its shareholders by reason of willful misfeasance,
bad faith or gross negligence in the performance of
its duties or by reason of its reckless disregard of
its obligations and duties under this Agreement.
(b) THE TRUST. It is understood and expressly stipulated
that none of the Trustees or shareholders of the
Trust shall be personally liable hereunder. Neither
the Trustees, officers, agents nor shareholders of
the Trust assume any personal liability for
obligations entered into on behalf of the Trust. All
persons dealing with the Trust must look solely to
the property of the Trust for the enforcement of any
claims against the Trust. No series of the Trust
shall be liable for any claims against any other
series.
7. COMPENSATION OF THE INVESTMENT ADVISER. Neither the Investment
Adviser nor any affiliate of the Investment Adviser will act
as principal or receive directly or indirectly any
compensation in connection with the purchase or sale of
investment securities by the Trust, other than the
compensation provided for in this Section and such brokerage
commissions as are permitted by the 1940 Act, it being
contemplated that WPG will act as principal broker for the
Trust in U.S. securities transactions.
(a) Except as provided in Subsection (b) below, the Trust
will pay the Investment Adviser an annual fee,
payable monthly, which varies in accordance with the
total amount of daily net assets of the Trust under
the management of the Investment Adviser. The annual
advisory fee expressed as a percentage of the average
daily net assets of the Trust is 0.75% of the average
daily net assets. For any period less than a full
month during which this Agreement is in effect, the
fee shall be prorated according to the proportion
which such period bears to a full month. For the
purposes hereof, the net assets of the Trust shall be
computed in
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the manner specified in the Trust's prospectus for
the computation of the value of such net assets in
connection with the determination of the net asset
value of its shares. On any day that the net asset
value calculation is suspended as specified in the
Trust's prospectus, the net asset value for purposes
of calculating the advisory fee shall be calculated
as of the date last determined.
(b) If the operating expenses of the Trust in any year
(including the investment advisory fee referred to in
Subsection (a) above, but excluding taxes, brokerage
commissions, interest, dividends on securities sold
short, distribution expenses, and extraordinary legal
fees and expenses) exceed the limits set by certain
state securities administrators in states in which
shares of the Trust are sold, the amount payable to
the Investment Adviser under Subsection (a) above
will be reduced (but not below $0) by the amount of
such excess. If amounts have already been advanced to
the Investment Adviser under this Agreement, the
Investment Adviser will return such amounts to the
Trust to the extent required by the preceding
sentence.
(c) In addition to the foregoing, the investment Adviser
may from time to time agree not to impose all or a
portion of its fee otherwise payable hereunder (in
advance of the time such fee or portion thereof would
otherwise accrue) and/or undertake to pay or
reimburse the Trust for all or a portion of its
expenses not otherwise required to be borne or
reimbursed by the Investment Adviser. Any such fee
reduction or undertaking may be discontinued or
modified by the Investment Adviser at any time.
8. ADVERTISING MATERIAL. The Trust will not approve or authorize
the use or distribution, in connection with the offering of
its shares for sale, of any literature or advertisements in
any form or through any medium, written or oral, unless not
less than ten (10) days prior to the giving of such approval
or authorization by the Trust, the Trust shall have submitted
such literature or advertising to the Investment Adviser and
the Investment Adviser, within ten (10) days, shall either
have specifically approved or shall have failed to disapprove
such literature or advertising.
9. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) DURATION. This Agreement shall remain in force until
April 30, 1995 and from year to year thereafter, but
only so long as such
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continuance is specifically approved at least
annually by a vote of a majority of the Trustees,
including a majority of the Trustees who are not
parties hereto or "interested persons" (as defined by
the 0000 Xxx) of the Investment Adviser, or by vote
of a "majority of the outstanding voting shares" (as
defined in the 0000 Xxx) of the Trust, subject to the
provisions for termination and all of the other terms
and conditions hereof.
(b) VOLUNTARY TERMINATION. This Agreement may be
terminated without the payment of any penalty by (a)
the Trust, upon sixty (60) days notice in writing to
the Investment Adviser provided such termination is
authorized by resolution of the Trustees of the Trust
or by a vote of a "majority of its outstanding voting
shares" of the Trust (as defined in the Act) and (b)
the Investment Adviser upon sixty (60) days notice in
writing to the Trust.
(c) AUTOMATIC TERMINATION. This Agreement will
automatically and immediately terminate in the event
of its "assignment," as that term is used in the 1940
Act and rules and regulations promulgated thereunder,
by the Investment Adviser.
10. TRADING, SERVICES TO OTHERS, BROKERAGE. Nothing in this
Agreement will in any way limit or restrict the Investment
Adviser or any of its officers, directors, partners or
employees from buying, selling or trading in any securities
for its own or other accounts. The Investment Adviser may act
as an investment adviser to any other person, firm or
corporation, and may perform management and any other services
for any other person, association, corporation, firm or other
entity pursuant to any contract or otherwise, and take any
action or do anything in connection therewith or related
thereto; and no such performance of management or other
services or taking of any such action or doing of any such
thing shall be in any manner restricted or otherwise affected
by any aspect of any relationship of the Investment Adviser to
or with the Trust or deemed to violate or give rise to any
duty or obligation of the Investment Adviser to the Trust;
provided, however, that it is understood that any advice
rendered to the Trust by the Investment Adviser will be used
solely for the benefit of the Trust. The Trust recognizes that
Investment Adviser, in effecting transactions for their
various accounts, may not always be able to take or liquidate
investment positions in the same security at the same time and
at the same price.
11. NAME OF THE TRUST. The Trust hereby agrees that in the event
that neither the Investment Adviser nor any of its affiliates
acts as
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investment adviser to the Trust, the name of the Trust will be
changed to one that does not contain the name "Xxxxx, Xxxx &
Xxxxx" or the initials "WPG" or otherwise suggest an
affiliation with the Investment Adviser.
12. SERIES OF THE TRUST. The Investment Adviser recognizes that
the Trust may terminate any series of the Trust, and may
create new series.
13. CHANGE OF MEMBERSHIP OF INVESTMENT ADVISER. The Investment
Adviser hereby agrees to notify the Trust of any change in the
membership of its partnership within a reasonable time after
such change.
14. INDEPENDENT CONTRACTOR. The Investment Adviser is an
independent contractor and not an employee of the Trust for
any purpose.
15. ENTIRE AGREEMENT. This Agreement states the entire agreement
of the parties hereto, and is intended to be the complete and
exclusive statement of the terms hereof. It may not be added
to or changed orally, and may not be modified or rescinded
except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
16. NOTICES. Any notices sent pursuant to this Agreement may be
sent by mail (postage prepaid) as follows, or to such other
address or addresses as the party may advise in writing:
(a) In the case of notices sent to the Trust to:
WPG GROWTH FUND
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
(b) In the case of notices sent to the Investment Adviser to:
XXXXX, XXXX & XXXXX
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
17. GOVERNING LAW. This Agreement and all performance hereunder
shall be governed by the laws of the State of New York, which
apply to contracts made and to be performed in the State of
New York.
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18. 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. This Agreement may be executed
simultaneously in two or more counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
WPG GROWTH FUND
By:________________________________
Its:
XXXXX, XXXX & XXXXX
By:________________________________
Its:
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