EXHIBIT 30.10
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT ("Agreement"), is made and entered into by
and between Firstmark Partners, a Delaware business trust (the "Fund"), and
Firstock Financial Services, Inc., a Nebraska corporation (the "Investment
Adviser"). WITNESSETH:
WHEREAS, the Fund, and open-end, non-diversified investment company registered
under the Investment Company Act of 1940 (the "1940 Act"), wishes to retain the
Investment Adviser to provide investment advisory services to the Fund; and
WHEREAS, the Investment Adviser is willing to furnish such services on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed as follows:
1.Employment of the Investment Adviser. The Fund hereby appoints the
Investment Adviser to manage the investment and reinvestment of assets of the
Contrarian Value Fund and any other portfolio of the Fund which may be
hereafter designated as a separate series 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.Obligations of the Fund. The Fund shall at all times inform the Investment
Adviser as to the securities owned by it, the funds available or to become
available for investment by it, and generally as to the condition of its
affairs. It shall furnish the Investment Adviser with such other documents
and information with regard to its affairs as the Investment Adviser may from
time to time reasonably request.
3. Obligations of the Investment Adviser. Subject to the direction and control
of the Fund's Board of Trustees, the Investment Adviser shall regularly
provide the Fund with investment research, advice, management and supervision
and shall furnish a continuous investment program for the Fund's portfolio of
securities consistent with the Fund's investment objective, policies, and
limitations as stated in the Fund's current Prospectus and Statement of
Additional Information. The Investment Adviser shall determine from time to
time what securities will be purchased, retained or sold by the Fund, and
shall implement those decisions, all subject to the provisions of the Fund's
Declaration of Trust, the 1940 Act, the applicable rules and regulations of
the Securities and Exchange Commission, and other applicable federal and
state laws, as well as the investment objectives, policies, and limitations
of the Fund. In placing orders for the Fund with brokers and dealers with
respect to the execution of the Fund's securities transactions, the
Investment Adviser shall attempt to obtain the best net results. In doing
so, the Investment Adviser may consider such factors which it deems relevant
to the Fund's best interest, such as price, the size of the transaction, the
nature of the market for the security, the amount of the commission, the
timing of the transaction, the reputation, experience and financial stability
of the broker-dealer involved and the quality of service rendered by the
broker-dealer in othertransactions. The Investment Adviser shall have the
discretionary authority to utilize certain broker-dealers even though it may
result in the payment by the Fund of an amount of commission for effecting a
securities transaction in excess of the amount of commission another broker-
dealer would have charged for effecting that transaction, providing, however,
that the Investment Adviser had determined that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by the broker-dealer effecting the transaction. In no instance will
portfolio securities be purchased from or sold to the Investment Adviser or
any affiliated person thereof except in accordance with the rules and
regulations promulgated by the Securities and Exchange Commission pursuant to
the 1940 Act. The Investment Adviser shall also provide advice and
recommendations with respect to other aspects of the business and affairs of
the Fund and shall perform such other functions of management and supervision
as may be directed by the Board of Trustees of the Fund, provided that in no
event shall the Investment Adviser be responsible for any expense
occasioned by the performance of such functions.
4.Expenses of the Fund. The Investment Adviser is responsible for (i) the
compensation of any of the Fund's trustees, officers and employees who are
interested persons of the Investment Adviser, (ii) compensation of the
Investment Adviser's personnel and other expenses in connection with the
provisions of portfolio management services under this Agreement, and (iii)
expenses of printing and distributing the Fund's prospectus and sales and
advertising materials to prospective clients. Other than as herein
specifically indicated, the Investment Adviser shall not be responsible for
the Funds expenses. Specifically, the Investment Adviser will not be
responsible, except to the extent of the reasonable compensation of employees
of the Fund whose services may be used by the Investment Adviser hereunder,
for any of the following expenses of the Fund, which expenses shall be borne
by Fund: legal and audit expenses, organizational expenses; interest; taxes;
governmental fees; industry association fees; the cost (including brokerage
commissions or charges, if any) of securities purchased or sold by the Fund
and any losses incurred in connection herewith; fees, if any, of custodians,
transfer agents, registrars or other agents; distribution fees; expenses of
preparing share certificates; expenses relating to the redemption or
repurchase of the Fund's shares; fees and expenses of registering the Fund's
shares under the federal securities laws and of qualifying its shares under
applicable state Blue Sky laws, including expenses attendant upon renewing
such registrations and qualifications; expenses of preparing, setting in
print, printing and distributing prospectuses, proxy statements, reports,
notices, and dividends to fund shareholders; cost of stationary; costs of
shareholders and other meetings of the Fund; compensation and expenses of the
independent trustees of the Fund; fidelity bond and other insurance covering
the Fund and its officers and trustees.
5.Limitations on Salaries. No trustee, officer or employee of the Fund shall
receive from the Fund any salary or other compensation as such trustee,
officer or employee while he is at the same time director, officer or
employee of the Investment Adviser or any affiliated company of the
Investment Adviser. This paragraph shall not apply to trustees, executive
committee members, consultants and other persons who are not regular members
of the Investment Adviser's or any affiliated company's staff.
6.Compensation. As compensation for the services performed by the Investment
Adviser, the Fund shall pay the Investment Adviser, as promptly as possible
after the last day of each month, a fee, accrued each calendar day (including
weekends and holidays) at a rate of 1.25% per annum of the daily net assets
of the Fund. The first payment of fee hereunder shall be prorated on a daily
basis from the date this Agreement takes effect but may be waived by the
Investment Adviser under special circumstances. The Investment Adviser shall
reduce such fee or, if necessary, make payments to the Fund to the extent
required to satisfy any limitations with respect thereto imposed by the
securities laws or regulations thereunder of any state in which the Fund's
shares are qualified for sale. The daily net assets of the Funds shall be
computed as of the time of the regular close of business of the New York
Stock Exchange, or such other time as may be determined by the Board of
Trustees of the Fund. Any of such payments as to which the Investment
Adviser may so request shall be accompanied by a report of the Fund prepared
either by the Fund or by a reputable firm of independent accountants which
shall show the amount properly payable to the Investment Adviser under this
Agreement and detailed computation thereof.
7.Limitation of Liability. The Investment Adviser assumes no responsibility
under this Agreement other than to render the services called for hereunder
in good faith, and shall not be responsible for any action of the Board of
Trustees of the Fund in the following or declining to follow any advice or
recommendation of the Investment Adviser; provided that nothing in this
Agreement shall protect the Investment Adviser against any liability to the
Fund or its stockholders to which it would otherwise be subject 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
hereunder.
8.Independent Contractor. The Investment Adviser shall be an independent
contractor and shall have no authority to act for or represent the Fund in
its investment commitments unless otherwise provided. No agreement, bid,
offer, commitment, contract or other engagement entered into by the
Investment Adviser whether on behalf of the Investment Adviser or whether
purporting to have been entered unto on behalf of the Fund shall be binding
upon the Fund, and all acts authorized to be done by the Investment Adviser
under this Agreement shall be done by it as an independent contractor and not
as an agent.
9.Activities of the Investment Adviser. Nothing in this Agreement shall limit
or restrict the right of any director, officer, or employee of the Investment
Adviser who may also be a trustee, officer, or employee of the Fund, to
engage in any other business or to devote his time and attention in part to
the management or other aspects of any other business, whether of a similar
nature or dissimilar nature, nor to limit or restrict the right of the
Investment Adviser to engage in any other business or to render services of
any kind, including investment advisory services, to any other corporation,
firm, individual or association.
10. Definitions. As used in this Agreement, the terms "assignment,"
"interested person," and "majority of the outstanding voting securities"
shall have meanings given to them by Section 2(a) of the 1940 Act, subject to
such exemptions as may be granted by the Securities and Exchange Commission
by any rule, regulation or order.
11. Termination. This Agreement shall terminate automatically in the event
of its assignment by the Investment Adviser and shall not be assignable by
the Fund without consent of the Investment Adviser. This Agreement may also
be terminated at any time, without payment of penalty (i) by the Fund either
by vote of the Board of Trustees of the Fund or by vote of a majority of the
outstanding voting securities of the Fund, on 60 days written notice to the
Investment Adviser, or (ii) by the Investment Adviser on 60 days written
notice to the Fund. Upon the termination of this agreement, the obligations
of all the parties hereunder shall cease and terminate as of the date of such
termination, except for any obligation to respond for a breach of this
Agreement committed prior to such termination and except or the obligation of
the Fund to pay to the Investment Adviser the fee provided in Paragraph 6
hereof, prorated to the date of termination.
12. Term. This Agreement shall become effective on the effective date of the
first public offering of the Fund's shares and shall continue in effect for
one year and from year to year thereafter only so long as specifically
approved annually by (i) the Fund's Board of Trustees and by a vote of the
holders of a majority of the outstanding voting securities of the Fund, or
(ii) a majority of the Trustees who are not parties to the Agreement or
"interested persons" (as defined in the Act) of any such party cast in person
at a meeting called for the purpose of voting on such approval.
13. Amendments. 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, and no material amendment of this agreement shall be
effective until approved by vote of the holders of a majority of the Fund's
outstanding voting securities.
14. Severability. 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.
15. Governing Law. This agreemennt shall be construed in accordance with and
governed by the Laws of the State of Nebraska.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and sealed by their duly authorized officers this 20th day of November 1998.
FIRSTMARK PARTNERS FIRSTOCK FINANCIAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President Xxxx X. Xxxxxxx, Chairman & CEO
ATTEST ATTEST
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, Secretary Xxxx X. Xxxxxxx, Secretary
