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EXHIBIT 23(d)-10
INVESTMENT ADVISORY AGREEMENT
▇▇▇▇▇▇ LARGE CAP VALUE FUND
(A SERIES OF ▇▇▇▇▇▇ INVESTMENT PORTFOLIO TRUST)
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this 28th
day of September, 2001, between ▇▇▇▇▇▇ LLC, a Nevada limited liability company
("▇▇▇▇▇▇"), and ▇▇▇▇▇▇ INVESTMENT PORTFOLIO TRUST, a Delaware business trust
(the "Trust"), with respect to the ▇▇▇▇▇▇ LARGE CAP VALUE FUND, a series of the
Trust (the "Fund").
RECITALS
A. The Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and has
registered its shares for public offering under the Securities Act of 1933, as
amended (the "1933 Act").
B. The Trust is authorized to create separate series of shares, each
with its own separate investment portfolio, one of such series created by the
Trust being the Fund.
▇. ▇▇▇▇▇▇ is engaged in the business of rendering investment advisory
services and is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (the "Advisers Act").
D. The Trust and ▇▇▇▇▇▇ deem it mutually advantageous that ▇▇▇▇▇▇
should assist the Trustees and officers of the Trust in the management of the
securities portfolio of the Fund.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints ▇▇▇▇▇▇ as investment adviser
and manager with respect to the Fund for the period and on the terms set forth
in this Agreement. ▇▇▇▇▇▇ hereby accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided.
2. Investment Advisory Functions. In its capacity as investment adviser
to the Fund, ▇▇▇▇▇▇ shall have the following duties and responsibilities:
(a) To manage the investment operations of the Fund and the
composition of its investment portfolio, and to determine
without prior consultation with the Trust, what securities and
other assets of the Fund will be acquired, held, disposed of
or loaned, in conformity with the investment objective,
policies and restrictions and the other statements concerning
the Fund in the Trust's trust instrument, as amended from time
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to time (the "Trust Instrument"), bylaws and registration
statements under the 1940 Act and the 1933 Act, the 1940 Act
and the Advisers Act, the rules and regulations thereunder,
and all other applicable federal and state laws and
regulations, and the provisions of the Internal Revenue Code
of 1986, as amended, applicable to the Fund as a regulated
investment company;
(b) To cause its officers to attend meetings and furnish oral or
written reports, as the Trust may reasonably require, in order
to keep the Trustees and appropriate officers of the Trust
fully informed as to the condition of the investment portfolio
of the Fund, the investment decisions of ▇▇▇▇▇▇, and the
investment considerations which have given rise to those
decisions;
(c) To supervise the purchase and sale of securities for
investments of the Fund and for other related transactions as
directed by the appropriate officers of the Trust or any
sub-adviser engaged by ▇▇▇▇▇▇ pursuant to the authority
granted in this Agreement; to give instructions to the
custodian (including any subcustodian) of the Fund as to
deliveries of securities to and from such custodian and
receipt and payments of cash for the account of the Fund, and
advise the Trust on the same day such instructions are given;
and to submit such reports relating to the valuation of the
Fund's assets and to otherwise assist in the calculation of
the net asset value of shares of the Fund as may reasonably be
requested;
(d) To maintain all books and records required to be maintained by
▇▇▇▇▇▇ pursuant to the 1940 Act and the rules and regulations
promulgated thereunder, as the same may be amended from time
to time, with respect to transactions on behalf of the Fund,
and shall furnish the Trustees with such periodic and special
reports as the Trustees reasonably may request. ▇▇▇▇▇▇ agrees
that all records which it maintains for the Fund or the Trust
are the property of the Trust, agrees to permit the reasonable
inspection thereof by the Trust or its designees and agrees to
preserve for the periods prescribed under the 1940 Act any
records which it maintains for the Trust and which are
required to be maintained under the 1940 Act, and further
agrees to surrender promptly to the Trust or its designees any
records which it maintains for the Trust upon request by the
Trust; and
(e) At such times as shall be reasonably requested by the
Trustees, to provide the Trustees with economic, operational
and investment data and reports, including without limitation
all information and materials reasonably requested by or
requested to be delivered to the Trustees of the Trust
pursuant to Section 15(c) of the 1940 Act, and make available
to the Trustees any economic, statistical and investment
services normally available to similar investment company
clients of ▇▇▇▇▇▇.
3. Further Obligations. In all matters relating to the performance of
this Agreement, ▇▇▇▇▇▇ shall act in conformity with the Trust's Trust
Instrument, bylaws and currently effective registration statements under the
1940 Act and the 1933 Act and any amendments or supplements
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thereto (the "Registration Statements") and with the written policies,
procedures and guidelines of the Fund, and written instructions and directions
of the Trustees of the Trust and shall comply with the requirements of the 1940
Act, the Advisers Act, the rules thereunder, and all other applicable federal
and state laws and regulations. The Trust agrees to provide ▇▇▇▇▇▇ with copies
of the Trust's Trust Instrument, bylaws, Registration Statements, written
policies, procedures and guidelines, and written instructions and directions of
the Trustees, and any amendments or supplements to any of them at, or, if
practicable, before the time such materials become effective. ▇▇▇▇▇▇ shall
maintain errors and omissions insurance in an amount at least equal to that
disclosed to the Trustees in connection with their approval of this Agreement.
4. Sub-Advisers. ▇▇▇▇▇▇ may engage one or more sub-advisers in
furtherance of ▇▇▇▇▇▇'▇ duties and responsibilities under this Agreement,
subject to the approval of the Trustees of the Trust and, if required by law,
the shareholders of the Fund, pursuant in each case to a written agreement with
a party that, if applicable, meets the requirements of Section 15 of the 1940
Act and the rules thereunder applicable to contracts for service as an
investment adviser of a registered investment company, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission. The
engagement of one or more sub-advisers pursuant to this provision shall not
diminish or relieve in any way the liability of ▇▇▇▇▇▇ for any of its duties and
responsibilities under this Agreement. ▇▇▇▇▇▇ shall appropriately oversee,
monitor and evaluate the activities of any sub-adviser engaged hereunder.
5. Obligations of Trust. The Trust shall have the following obligations
under this Agreement:
(a) To keep ▇▇▇▇▇▇ continuously and fully informed as to the
composition of the investment portfolio of the Fund and the
nature of all of the Fund's assets and liabilities from time
to time;
(b) To furnish ▇▇▇▇▇▇ with a certified copy of any financial
statement or report prepared for the Fund by certified or
independent public accountants and with copies of any
financial statements or reports made to the Fund's
shareholders or to any governmental body, securities exchange,
national market, or other self-regulatory organization;
(c) To furnish ▇▇▇▇▇▇ with any further materials or information
which ▇▇▇▇▇▇ may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate ▇▇▇▇▇▇ for its services in accordance with the
provisions of Section 6 hereof.
6. Compensation. The Trust shall pay to ▇▇▇▇▇▇ for its services under
this Agreement a fee, payable in United States dollars, at an annual rate of
0.75% of the first $500 million of average daily net assets of the Fund, 0.70%
of the next $500 million of average daily net assets of the Fund, and 0.65% of
any part of the average daily net assets of the Fund in excess of $1 billion.
This fee
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shall be computed and accrued daily and payable monthly as of the last day of
each month during which or part of which this Agreement is in effect. For the
month during which this Agreement becomes effective and the month during which
it terminates, however, there shall be an appropriate proration of the fee
payable for such month based on the number of calendar days of such month during
which this Agreement is effective.
7. Expenses.
(a) Expenses Paid by the Trust. The Trust assumes and shall pay all
expenses incidental to its operations and business not specifically assumed or
agreed to be paid by ▇▇▇▇▇▇ hereunder or otherwise, including, but not limited
to, any compensation, fees or reimbursements which the Trust pays to its
Trustees who are not interested persons of ▇▇▇▇▇▇; compensation of the Fund's
custodian, transfer agent, registrar and dividend disbursing agent and other
service providers; legal, accounting, audit and printing expenses;
administrative, clerical, recordkeeping and bookkeeping expenses; brokerage
commissions and all other expenses in connection with execution of portfolio
transactions (including any appropriate commissions paid to ▇▇▇▇▇▇ or its
affiliates for effecting exchange listed, over-the-counter or other securities
transactions); interest; all federal, state and local taxes (including stamp,
excise, income and franchise taxes); costs of stock certificates and expenses of
delivering such certificates to the purchasers thereof; expenses of local
representation in Delaware; expenses of shareholders' meetings and of preparing,
printing and distributing proxy statements, notices, and reports to
shareholders; expenses of preparing and filing reports and tax returns with
federal and state regulatory authorities; all expenses incurred in complying
with all federal and state laws and the laws of any foreign country applicable
to the issue, offer or sale of shares of the Fund, including, but not limited
to, all costs involved in preparing, printing and mailing prospectuses and
statements of additional information to shareholders of the Fund; and all fees,
dues and other expenses incurred by the Trust in connection with the membership
of the Trust in any trade association or other investment company organization.
To the extent that ▇▇▇▇▇▇ shall perform any of the above described
administrative and clerical functions, including transfer agency, registry,
dividend disbursing, recordkeeping, bookkeeping, accounting and blue sky
monitoring and registration functions, and the preparation of reports and
returns, the Trust shall pay to ▇▇▇▇▇▇ compensation for, or reimburse ▇▇▇▇▇▇ for
its expenses incurred in connection with, such services as ▇▇▇▇▇▇ and the Trust
shall agree from time to time, any other provision of this Agreement
notwithstanding.
(b) Expenses Paid by ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall pay all its own costs and
expenses incurred in fulfilling its obligations under this Agreement. In
addition to such costs and expenses, ▇▇▇▇▇▇ shall incur and pay the following
expenses relating to the Fund's operations:
(i) Reasonable compensation, fees and related expenses of the
Trust's officers and Trustees, except for such Trustees who are not interested
persons of ▇▇▇▇▇▇;
(ii) Rental of offices of the Trust; and
(iii) Fees of any sub-adviser engaged by ▇▇▇▇▇▇ pursuant to
the authority granted in Section 4 hereof.
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8. Brokerage Commissions. For purposes of this Agreement, brokerage
commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Absent instructions from the Trust to the contrary, ▇▇▇▇▇▇ is
authorized and directed to place Fund portfolio transactions only with brokers
and dealers who render satisfactory service in the execution of orders at the
most favorable prices and at reasonable commission rates, provided, however,
that ▇▇▇▇▇▇ may pay a broker an amount of commission for effecting a securities
transaction in excess of the amount of commission another broker would have
charged for effecting that transaction if ▇▇▇▇▇▇ determines in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services provided by such broker viewed in terms of
either that particular transaction or the overall responsibilities of ▇▇▇▇▇▇.
▇▇▇▇▇▇ is also authorized to consider sales of Fund shares as a factor in
selecting broker-dealers to execute Fund portfolio transactions. In placing
portfolio business with such broker-dealers, ▇▇▇▇▇▇ shall seek the best
execution of each transaction. Subject to the terms of this Agreement and the
applicable requirements and provisions of the law, including the 1940 Act and
the Securities Exchange Act of 1934, as amended, and in the event that ▇▇▇▇▇▇ or
an affiliate is registered as a broker-dealer, ▇▇▇▇▇▇ may select a broker with
which it or any of its affiliates or the Fund is affiliated. ▇▇▇▇▇▇ or such
affiliated broker may effect or execute Fund portfolio transactions, whether on
a securities exchange or in the over-the-counter market, and receive separate
compensation from the Fund therefor. Notwithstanding the foregoing, the Trust
shall retain the right to direct the placement of all portfolio transactions,
and the Trustees of the Trust may establish policies or guidelines to be
followed by ▇▇▇▇▇▇ in placing portfolio transactions for the Trust pursuant to
the foregoing provisions. ▇▇▇▇▇▇ shall report on the placement of portfolio
transactions in the prior fiscal quarter at each quarterly meeting of such
Trustees. To the extent consistent with applicable law, purchase or sell orders
for the Fund may be aggregated with simultaneous purchase or sell orders for
other clients of ▇▇▇▇▇▇. Whenever ▇▇▇▇▇▇ simultaneously places orders to
purchase or sell the same security on behalf of the Fund and one or more other
clients of ▇▇▇▇▇▇, such orders will be allocated as to price and amount among
all such clients in a manner reasonably believed by ▇▇▇▇▇▇ to be fair and
equitable to each client. The Trust recognizes that in some cases, this
procedure may adversely affect the results obtained for the Fund.
9. Termination. This Agreement may be terminated at any time, without
penalty, by the Trustees of the Trust, or by the shareholders of the Fund acting
by vote of at least a majority of its outstanding voting securities, provided in
either case that sixty (60) days' advance written notice of termination be given
to ▇▇▇▇▇▇ at its principal place of business. This Agreement may be terminated
by ▇▇▇▇▇▇ at any time, without penalty, by giving sixty (60) days' advance
written notice of termination to the Trust, addressed to its principal place of
business. The Trust agrees that, consistent with the terms of the Trust's Trust
Instrument, the Trust shall cease to use the name "▇▇▇▇▇▇" in connection with
the Fund as soon as reasonably practicable following any termination of this
Agreement if ▇▇▇▇▇▇ does not continue to provide investment advice to the Fund
after such termination.
10. Assignment. This Agreement shall terminate automatically in the
event of any assignment of this Agreement.
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11. Term. This Agreement shall continue in effect until April 30, 2003,
unless sooner terminated in accordance with its terms, and shall continue in
effect from year to year thereafter only so long as such continuance is
specifically approved at least annually by the vote of a majority of the
Trustees of the Trust who are not parties hereto or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on the
approval of the terms of such renewal, and by either the Trustees of the Trust
or the affirmative vote of a majority of the outstanding voting securities of
the Fund.
12. Amendments. This Agreement may be amended by the parties only if
such amendment is specifically approved (i) by a majority of the Trustees,
including a majority of the Trustees who are not interested persons of the Fund
or ▇▇▇▇▇▇ and, (ii) if required by applicable law, by the affirmative vote of a
majority of the outstanding voting securities of the Fund.
13. Allocation of Expenses. The Trustees shall determine the basis for
making an appropriate allocation of the Trust's expenses (other than those
directly attributable to the Fund) between the Fund and any other series of the
Trust and between the Fund and other investment companies managed by ▇▇▇▇▇▇ or
its affiliates.
14. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN that the
Trust is a business trust organized under the Delaware Business Trust Act
pursuant to a Certificate of Trust filed in the office of the Secretary of State
of the State of Delaware. All parties to this Agreement acknowledge and agree
that the Trust is a series trust and all debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no Trustee,
officer or holder of shares of beneficial interest of the Trust shall be
personally liable for any of the foregoing.
15. Limitation of Liability of ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall not be liable for
any error of judgment or mistake of law or for any loss arising out of any
investment or for any act or omission taken with respect to the Fund, except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder and except to the extent otherwise provided by law. As used in this
Section 15, "▇▇▇▇▇▇" shall include any affiliate of ▇▇▇▇▇▇ performing services
for the Trust contemplated hereunder and managers, members, officers and
employees of ▇▇▇▇▇▇ and such affiliates.
16. Activities of ▇▇▇▇▇▇. The services of ▇▇▇▇▇▇ to the Trust hereunder
are not to be deemed to be exclusive, and ▇▇▇▇▇▇ and its affiliates are free to
render services to other parties, so long as its services under this Agreement
are not materially adversely affected or otherwise impaired thereby. Nothing in
this Agreement shall limit or restrict the right of any manager, member, officer
or employee of ▇▇▇▇▇▇ to engage in any other business or to devote his or her
time and attention in part to the management or other aspects of any other
business, whether of a similar nature or a dissimilar nature. It is understood
that Trustees, officers and shareholders of the Trust are or may
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become interested in ▇▇▇▇▇▇ as managers, members, officers and shareholders of
▇▇▇▇▇▇, that managers, members, officers, employees and shareholders of ▇▇▇▇▇▇
are or may become similarly interested in the Trust, and that ▇▇▇▇▇▇ may become
interested in the Trust as a shareholder or otherwise.
17. Certain Definitions. The terms "vote of a majority of the
outstanding voting securities," "assignment," "approved at least annually" and
"interested persons" when used herein, shall have the respective meanings
specified in the 1940 Act, as now in effect or hereafter amended, and the rules
and regulations thereunder, subject to such orders, exemptions and
interpretations as may be issued by the Securities and Exchange Commission under
said Act and as may be then in effect. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement is made
less restrictive by a rule, regulation, order, interpretation or other authority
of the Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation, order, interpretation or other authority.
18. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Colorado (without giving effect to the conflicts of
laws principles thereof) and the 1940 Act. To the extent that the applicable
laws of the State of Colorado conflict with the applicable provisions of the
1940 Act, the latter shall control.
19. Miscellaneous. The headings in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect their construction or effect. 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.
IN WITNESS WHEREOF, the parties have caused their duly authorized
officers to execute this Investment Advisory Agreement as of the date and year
first above written.
▇▇▇▇▇▇ LLC, a Nevada Limited Liability Company
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
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▇▇▇▇▇▇ INVESTMENT PORTFOLIO TRUST, with
respect to the series known as the ▇▇▇▇▇▇
Large Cap Value Fund
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
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