WINTEGREEN FUND, INC.
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of the ____th day of September, 2005, by and between
Wintergreen Fund, Inc., a Maryland corporation, with its principal office and
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Fund"), and Wintergreen Advisers, LLC, a Delaware limited liability company,
with its principal office and place of business at ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Adviser").
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment company
and may issue its shares of beneficial interest, $0.001 par value (the
"Shares"); and
WHEREAS, the Fund desires that the Adviser perform investment advisory
services for the Fund, and the Adviser is willing to provide those services on
the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Fund and the Adviser hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Fund hereby employs the Adviser, subject to the
direction and control of the board of directors of the Fund (the "Board"), to
manage the investment and reinvestment of the assets in the Fund and, without
limiting the generality of the foregoing, to provide other services as specified
herein. The Adviser accepts this employment and agrees to render its services
for the compensation set forth herein.
(b) In connection therewith, the Fund has delivered to the
Adviser copies of: (i) the Fund's Articles of Incorporation and By-Laws, each as
amended from time to time (the "Organizational Documents"); (ii) the Fund's
Registration Statement and all amendments thereto filed with the U.S. Securities
and Exchange Commission ("SEC") pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), or the 1940 Act (the "Registration Statement");
(iii) the Fund's current Prospectuses and Statements of Additional Information
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"); and (iv) all procedures adopted by the Fund, and shall promptly
furnish the Adviser with all amendments of or supplements to the foregoing. The
Fund shall deliver to the Adviser any other documents, materials or information
that the Adviser shall reasonably request to enable it to perform its duties
pursuant to this Agreement.
(c) The Adviser has delivered, or will deliver to the Fund a
copy of its code of ethics complying with the requirements of Rule 17j-1 under
the 1940 Act (the "Code"). The Adviser shall promptly furnish the Fund with all
amendments of or supplements to the foregoing at least annually.
SECTION 2. DUTIES OF THE FUND
In order for the Adviser to perform the services required by
this Agreement, the Fund: (i) shall cause all service providers to the Fund to
furnish information to the Adviser and to assist the Adviser as may be required;
and (ii) shall ensure that the Adviser has reasonable access to all records and
documents maintained by the Fund or any service provider to the Fund.
SECTION 3. DUTIES OF THE ADVISER
(a) The Adviser will make decisions with respect to all
purchases and sales of securities and other investment assets for the Fund. To
carry out such decisions, the Adviser is hereby authorized, as agent and
attorney-in-fact for the Fund, for the account of, at the risk of and in the
name of the Fund, to place orders and issue instructions with respect to those
transactions. In all purchases, sales and other transactions in securities and
other investments for the Fund, the Adviser is authorized to exercise full
discretion and act for the Fund in the same manner and with the same force and
effect as the Fund might or could do with respect to such 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.
Consistent with Section 28(e) of the Securities
Exchange Act of 1934, as amended,
the Adviser may allocate brokerage on behalf of the Fund to broker-dealers who
provide research services. The Adviser may aggregate sales and purchase orders
of the assets of the Fund with similar orders being made simultaneously for
other accounts advised by the Adviser or its affiliates. Whenever the Adviser
simultaneously places orders to purchase or sell the same asset on behalf of the
Fund and one or more other accounts advised by the Adviser, the orders will be
allocated as to price and amount among all such accounts in a manner believed to
be equitable over time to each account.
(b) The Adviser will report to the Board at each meeting
thereof as requested by the Board all material changes in the Fund since the
prior report, and will also keep the Board informed of important developments
affecting the Fund and the Adviser, and on its own initiative, will furnish the
Board from time to time with such information as the Adviser may believe
appropriate for this purpose, whether concerning the individual companies whose
securities are included in the Fund's holdings, the industries in which they
engage, the economic, social or political conditions prevailing in each country
in which the Fund maintains investments, or otherwise. The Adviser will also
furnish the Board with such statistical and analytical information with respect
to investments of the Fund as the Adviser may believe appropriate or as the
Board reasonably may request. In making purchases and sales of securities and
other investment assets for the Fund, the Adviser will bear in mind the policies
set from time to time by the Board as well as the limitations imposed by the
Fund's Organizational Documents and Registration Statement, the limitations in
the 1940 Act, the Securities Act, the Internal Revenue Code of 1986, as amended,
and other applicable laws and the investment objectives, policies and
restrictions of the Fund.
(c) The Adviser will from time to time employ or associate
with such persons as the Adviser believes to be particularly fitted to assist in
the execution of the Adviser's duties
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hereunder, the cost of performance of such duties to be borne and paid by the
Adviser. No obligation may be incurred on the Fund's behalf in any such respect.
(d) The Adviser will report to the Board all material matters
related to the Adviser. On an annual basis, the Adviser shall report on its
compliance with its Code to the Board and upon the written request of the Fund,
the Adviser shall permit the Fund, or its representatives to examine the reports
required to be made to the Adviser under the Code. The Adviser will notify the
Fund of any change of control of the Adviser and any changes in the key
personnel who are either the portfolio manager(s) of the Fund or senior
management of the Adviser, in each case prior to or promptly after such change.
(e) The Adviser will maintain records relating to its
portfolio transactions and placing and allocation of brokerage orders as are
required to be maintained by the Fund under the 1940 Act. The Adviser shall
prepare and maintain, or cause to be prepared and maintained, in such form, for
such periods and in such locations as may be required by applicable law, all
documents and records relating to the services provided by the Adviser pursuant
to this Agreement required to be prepared and maintained by the Adviser or the
Fund pursuant to applicable law. To the extent required by law, the books and
records pertaining to the Fund which are in possession of the Adviser shall be
the property of the Fund. The Fund, or its representatives, shall have access to
such books and records at all times during the Adviser's normal business hours.
Upon the reasonable request of the Fund, copies of any such books and records
shall be provided promptly by the Adviser to the Fund or its representatives.
(f) The Adviser will cooperate with the Fund's independent public
accountants and shall take reasonable action to make all necessary information
available to those accountants for the performance of the accountants' duties.
(g) The Adviser will provide the Fund's custodian and fund accountant on
each business day with such information relating to all transactions concerning
the Fund's assets as the custodian and fund accountant may reasonably require.
In accordance with procedures adopted by the Board, the Adviser is responsible
for assisting in the fair valuation of all Fund assets and will use its
reasonable efforts to arrange for the provision of prices from parties who are
not affiliated persons of the Adviser for each asset for which the Fund's fund
accountant does not obtain prices in the ordinary course of business.
(h) The Adviser shall authorize and permit any of its directors, officers
and employees who may be duly elected as Directors or officers of the Fund to
serve in the capacities in which they are elected.
(i) Subject to written instructions from the Fund, the Adviser is hereby
appointed the Fund's agent and attorney-in-fact in its discretion to vote,
convert or tender in an exchange or tender offer any securities in the Fund's
portfolio, to execute proxies, waivers, consents and other instruments with
respect to such securities, to endorse, transfer or deliver such securities and
to participate in or consent to any plan of reorganization, merger, combination,
consolidation, liquidation or similar plan with reference to such securities
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SECTION 4. COMPENSATION; EXPENSES
(a) In consideration of the foregoing, the Fund shall pay the Adviser, with
respect to the Fund, a fee at an annualized rate equal to 1.5% of the aggregate
average daily net assets of the Fund. Such fees shall be accrued by the Fund
daily and shall be payable monthly in arrears on the first day of each calendar
month for services performed hereunder during the prior calendar month. If fees
begin to accrue in the middle of a month or if this Agreement terminates before
the end of any month, all fees for the period from that date to the end of that
calendar month or from the beginning of that month to the date of termination,
as the case may be, shall be prorated according to the proportion that the
period bears to the full month in which the effectiveness or termination occurs.
Upon the termination of this Agreement, the Fund shall pay to the Adviser such
compensation as shall be payable prior to the effective date of termination.
(b) The Fund shall be responsible for and assumes the obligation for
payment of all of its expenses, including: (i) the fee payable under this
Agreement; (ii) the fees payable to the administrator under an agreement between
the administrator and the Fund; (iii) expenses of issue, repurchase and
redemption of Shares; (iv) interest charges, taxes and brokerage fees and
commissions; (v) premiums of insurance for the Fund, its Directors and officers,
and fidelity bond premiums; (vi) fees and expenses of third parties, including
the Fund's independent public accountant, custodian, transfer agent, dividend
disbursing agent and fund accountant; (vii) fees of pricing, interest, dividend,
credit and other reporting services; (viii) costs of membership in trade
associations; (ix) telecommunications expenses; (x) funds' transmission
expenses; (xi) auditing, legal and compliance expenses; (xii) costs of forming
the Fund and maintaining its existence; (xiii) costs of preparing, filing and
printing the Fund's Prospectuses, subscription application forms and shareholder
reports and other communications and delivering them to existing shareholders,
whether of record or beneficial; (xiv) expenses of meetings of shareholders and
proxy solicitations therefor; (xv) costs of maintaining books of original entry
for portfolio and fund accounting and other required books and accounts, of
calculating the net asset value of Shares and of preparing tax returns; (xvi)
costs of reproduction, stationery, supplies and postage; (xvii) fees and
expenses of the Fund's Directors and officers; (xviii) the costs of personnel
(who may be employees of the Adviser, an administrator or their respective
affiliated persons) performing services for the Fund; (xix) costs of Board,
Board committee, shareholder and other corporate meetings; (xx) SEC registration
fees and related expenses; (xxi) state, territory or foreign securities laws
registration fees and related expenses; and (xxii) all fees and expenses paid by
the Fund in accordance with any distribution or service plan or agreement
related to similar matters.
SECTION 5. STANDARD OF CARE
(a) The Fund shall expect of the Adviser, and the Adviser will give the
Fund the benefit of, the Adviser's best judgment and efforts in rendering its
services to the Fund. The Adviser shall not be liable hereunder for mistake of
judgment or mistake of law or in any event whatsoever, except for lack of good
faith, provided that nothing herein shall be deemed to protect, or purport to
protect, the Adviser against any liability to the Fund or to the Fund's
shareholders to which the Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of the
Adviser's duties hereunder, or by reason of the Adviser's reckless disregard of
its obligations and duties hereunder.
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(b) The Adviser shall not be responsible or liable for any failure or delay
in performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties (other than those related to the Adviser's
employees), fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
SECTION 6. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date above after approval
by (1) a majority of the outstanding voting securities of the Fund and (2) a
majority of the Board who are not interested parties of the Fund.
(b) This Agreement shall remain in effect for a period of two years from
the date of its effectiveness and shall continue in effect for successive annual
periods; provided that such continuance is specifically approved at least
annually: (i) by the Board or by the vote of a majority of the outstanding
voting securities of the Fund, and, in either case; (ii) by a majority of the
Fund's Directors who are not parties to this Agreement or interested persons of
any such party (other than as Directors of the Fund); provided further, however,
that if the continuation of this Agreement is not approved, the Adviser may
continue to render the services described herein in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder.
(c) This Agreement may be terminated at any time, without the payment of
any penalty: (i) by the Board or by a vote of a majority of the outstanding
voting securities of the Fund on 60 days' written notice to the Adviser; or (ii)
by the Adviser upon 60 days' written notice to the Fund. This Agreement shall
terminate immediately upon its assignment.
SECTION 7. ACTIVITIES OF THE ADVISER
Except to the extent necessary to perform its obligations hereunder,
nothing herein shall be deemed to limit or restrict the Adviser's right, or the
right of any of the Adviser's directors, officers or employees to engage in any
other business or to devote time and attention to the management or other
aspects of any other business, whether of a similar or dissimilar nature, or to
render services of any kind to any other corporation, trust, firm, individual or
association.
SECTION 8. REPRESENTATIONS OF ADVISER.
The Adviser represents and warrants that: (i) it is either registered
as an investment adviser under the Investment Advisers Act of 1940, as amended
("Advisers Act") (and will continue to be so registered for so long as this
Agreement remains in effect) or exempt from registration under the Advisers Act;
(ii) is not prohibited by the 1940 Act or the Advisers Act from performing the
services contemplated by this Agreement; (iii) has met, and will seek to
continue to meet for so long as this Agreement remains in effect, any other
applicable federal or state requirements, or the applicable requirements of any
self-regulatory agency, necessary to be met in order to perform the services
contemplated by this Agreement; and (iv) will promptly notify the Fund of the
occurrence of any event that would disqualify the Adviser from serving as
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an investment adviser of an investment company pursuant to Section 9(a) of the
1940 Act or otherwise.
SECTION 10. LIMITATION OF SHAREHOLDER AND DIRECTOR LIABILITY
The Directors of the Fund and the shareholders of the Fund shall not be
liable for any obligations of the Fund under this Agreement, and the Adviser
agrees that, in asserting any rights or claims under this Agreement, it shall
look only to the assets and property of the Fund to which the Adviser's rights
or claims relate in settlement of such rights or claims, and not to the
Directors or shareholders of the Fund.
SECTION 11. RIGHTS TO NAME
If the Adviser ceases to act as investment adviser to the Fund whose
name includes the term "Wintergreen" (the "▇▇▇▇") or if the Adviser requests in
writing, the Fund shall take prompt action to change the name of the Fund to a
name that does not include the ▇▇▇▇. The Adviser may from time to time make
available without charge to the Fund for the Fund's use any marks or symbols
owned by the Adviser, including marks or symbols containing the ▇▇▇▇ or any
variation thereof, as the Adviser deems appropriate. Upon the Adviser's request
in writing, the Fund shall cease to use any such ▇▇▇▇ or symbol at any time. The
Fund acknowledges that any rights in or to the ▇▇▇▇ and any such marks or
symbols which may exist on the date of this Agreement or arise hereafter are,
and under any and all circumstances shall continue to be, the sole property of
the Adviser. The Adviser may permit other parties, including other investment
companies, to use the ▇▇▇▇ in their names without the consent of the Fund. The
Fund shall not use the ▇▇▇▇ in conducting any business other than that of an
investment company registered under the 1940 Act without the permission of the
Adviser.
SECTION 12. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified
in any manner except by a written agreement properly authorized and executed by
both parties hereto and, if required by the 1940 Act, by a vote of a majority of
the outstanding voting securities of the Fund.
(b) Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this Agreement.
(c) This Agreement shall be governed by, and the provisions of
this Agreement shall be construed and interpreted under and in accordance with,
the laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement between those parties with
respect to the subject matter hereof, whether oral or written.
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(e) This Agreement may be executed by the parties hereto on
any number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held
to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(g) Section headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications
received by the parties at their respective principal places of business, or at
such other address as a party may have designated in writing, shall be deemed to
have been properly given.
(i) No affiliated person, employee, agent, director, officer
or manager of the Adviser shall be liable at law or in equity for the Adviser's
obligations under this Agreement.
(j) The terms "vote of a majority of the outstanding voting
securities", "interested person", "affiliated person," "control" and
"assignment" shall have the meanings ascribed thereto in the 1940 Act.
(k) Each of the undersigned warrants and represents that they
have full power and authority to sign this Agreement on behalf of the party
indicated and that their signature will bind the party indicated to the terms
hereof and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding obligation of
the party, enforceable against the party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
WINTERGREEN FUND, INC.
By: ________________________
Name:
Title:
WINTERGREEN ADVISERS, LLC
By: ________________________
Name:
Title:
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APPENDIX A
WINTERGREEN FUND, INC.
INVESTMENT ADVISORY AGREEMENT
COMPENSATION:
The Fund will pay the Adviser a fee at an annualized rate equal to 1.5%
of the aggregate average daily net assets of the Fund.