THE WEISS FUND
Weiss Treasury Only Money Market Fund
Weiss Millennium Opportunity Fund
Dear Valued Shareholder:
On behalf of the Board of Trustees (the "Board") of The Weiss Fund (the
"Trust"), comprised of Weiss Treasury Only Money Market Fund ("Money Market
Fund") and Weiss Millennium Opportunity Fund ("Opportunity Fund") (each a "Fund"
and, collectively, the "Funds"), we are pleased to invite you to a special
meeting of the shareholders ("Special Meeting") of the Funds, to be held at 9:30
a.m. Eastern time, on January 29, 2002, at the Embassy Suites PGA, 4380 PGA
Blvd., Palm Beach Gardens, Florida 33410.
At the Special Meeting you will be asked to consider and approve the
following proposals: (i) to elect members of the Board; (ii) for shareholders of
Money Market Fund, to approve an amended and restated Investment Management
Agreement between the Trust, on behalf of Money Market Fund, and Weiss Money
Management, Inc. ("Weiss"); (iii) to approve a Subadvisory Agreement between
Weiss and Delray Financial Corporation; and (iv) to attend to such other
business as may properly come before the Special Meeting or any adjournment(s)
or postponement(s) thereof.
Each proposal is discussed in detail in the enclosed Proxy Statement.
All of the proposals have been approved by the Board. We are asking you to
consider them carefully and express your vote on the enclosed proxy ballot or at
the Special Meeting.
Because of the importance of these proposals, AlamoDirect, Inc.
("Alamo"), a professional solicitation firm, has been employed to assist
shareholders in the voting process. As the date of the Special Meeting
approaches, if we have not already heard from you, you may receive a telephone
call from a representative of Alamo reminding you to exercise your right to
vote.
THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE
IN FAVOR OF EACH OF THE PROPOSALS.
The formal Notice of Special Meeting, a proxy statement and a proxy
ballot are enclosed. If you are a shareholder of more than one Fund, or have
more than one account registered in your name, you will receive one proxy ballot
for each account. Please vote and return each ballot that you receive.
We look forward to your attendance at the Special Meeting or to
receiving your proxy ballot(s) so that your shares may be voted at the Special
Meeting. If you have any questions, please do not hesitate to call us at
1-800-289-8100.
Sincerely,
/s/ Clara A. Maxcy
Clara A. Maxcy
Vice President and Secretary
December 21, 2001
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS OF
THE WEISS FUND
Weiss Treasury Only Money Market Fund
Weiss Millennium Opportunity Fund
To Shareholders:
PLEASE TAKE NOTE THAT a special meeting of the shareholders ("Special
Meeting") of The Weiss Fund (the "Trust"), consisting of Weiss Treasury Only
Money Market Fund ("Money Market Fund") and Weiss Millennium Opportunity Fund
("Opportunity Fund") (each a "Fund" and, collectively, the "Funds"), will be
held at 9:30 a.m. Eastern time, on January 29, 2002, at the Embassy Suites PGA,
4380 PGA Blvd., Palm Beach Gardens, Florida 33410 for the following purposes:
1. To elect members of the Board of Trustees of the Trust;
2. For shareholders of Money Market Fund, to approve an amended and
restated Investment Management Agreement between the Trust, on
behalf of Money Market Fund, and Weiss Money Management, Inc.
("Weiss");
3. To approve a Subadvisory Agreement between Weiss and Delray
Financial Corporation; and
4. To attend to such other business as may properly come before the
Special Meeting or any adjournment(s) or postponement(s) thereof.
Please read the enclosed proxy statement carefully for information
concerning the proposals to be placed before the Special Meeting.
THE BOARD OF TRUSTEES UNANIMOUSLY RECOMMENDS THAT YOU VOTE IN FAVOR
OF EACH OF THE PROPOSALS.
Shareholders of record as of the close of business on December 6, 2001,
are entitled to notice of, and to vote at, the Special Meeting or any
adjournment(s) or postponement(s) thereof.
In the event that the necessary quorum to transact business or the vote
required to approve any Proposal is not obtained at the Special Meeting, the
persons named as proxies may propose one or more adjournments of the Special
Meeting in accordance with applicable law to permit further solicitation of
proxies with respect to that Proposal. Any such adjournment as to a matter will
require the affirmative vote of the holders of a majority of the shares of the
Trust (for a Trust-wide vote) or Fund (for a Fund-wide vote) in person or by
proxy at the Special Meeting. The persons named as proxies will vote FOR any
such adjournment those proxies they are entitled to vote in favor of that
Proposal, and will vote AGAINST any such adjournment those proxies to be voted
against that Proposal.
By Order of the Board of Trustees,
/s/ Clara A. Maxcy
- ------------------------------------
Clara A. Maxcy
Vice President and Secretary
December 21, 2001
YOUR VOTE IS IMPORTANT TO US REGARDLESS OF THE NUMBER
OF SHARES THAT YOU OWN. PLEASE VOTE BY RETURNING YOUR
PROXY BALLOT(S) TODAY IN THE ENCLOSED POSTAGE-PAID ENVELOPE (OR TAKE
ADVANTAGE OF THE ELECTRONIC OR TELEPHONIC VOTING PROCEDURES
DESCRIBED IN THE PROXY BALLOT(S)). YOUR PROMPT RETURN OF THE ENCLOSED
BALLOT(S) (OR YOUR VOTING BY OTHER AVAILABLE MEANS) MAY SAVE THE
NECESSITY AND EXPENSE OF FURTHER SOLICITATIONS. IF YOU WISH TO ATTEND
THE SPECIAL MEETING AND VOTE YOUR SHARES IN PERSON AT THAT TIME, YOU
WILL STILL BE ABLE TO DO SO.
PROXY STATEMENT
December 21, 2001
WEISS TREASURY ONLY MONEY MARKET FUND ("Money Market Fund")
WEISS MILLENNIUM OPPORTUNITY FUND ("Opportunity Fund")
Each a Separate Series of
THE WEISS FUND (the "Trust")
Toll Free: (800) 289-8100
4176 Burns Road
Palm Beach Gardens, Florida 33410
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SPECIAL MEETING OF SHAREHOLDERS
To be Held on January 29, 2002
- ------------------------------------------------------------------------------
Introduction
This proxy statement is being furnished to shareholders of Money Market
Fund and Opportunity Fund (each a "Fund" and, collectively, the "Funds") in
connection with three proposals (each a "Proposal" and, collectively, the
"Proposals"). In accordance with the requirements of the Investment Company Act
of 1940, as amended (the "1940 Act"), the Board of Trustees of the Trust (the
"Board") is soliciting your vote for a special meeting of shareholders of each
Fund (the "Special Meeting") to be held at 9:30 a.m. Eastern time, on January
29, 2002, at the Embassy Suites PGA, 4380 PGA Blvd., Palm Beach Gardens, Florida
33410. Proposal 1 proposes the election of Trustees. Proposal 2 proposes the
approval of an amendment to the Investment Management Agreement between the
Trust, on behalf of Money Market Fund, and Weiss Money Management, Inc.
("Weiss"), the Funds' investment adviser. Proposal 3 proposes the approval of a
Subadvisory Agreement between Weiss and Delray Financial Corporation ("Delray").
What's new with the Weiss Funds?
The Funds and Weiss have undergone organizational changes that have
implications for the way the Funds are managed. John N. Breazeale, the portfolio
manager for the Funds, recently resigned from his position at Weiss in order to
form his own investment management firm, Delray. The Board has determined that
retaining Delray as subadviser to the Funds is in the best interests of the
Funds and their shareholders. Accordingly, the Board is asking shareholders to
approve a Subadvisory Agreement between Weiss and Delray, thereby allowing the
Funds to continue to receive the benefit of Mr. Breazeale's investment advice.
Weiss would remain the Funds' investment manager, providing compliance
monitoring and oversight in light of the Funds' obligations under the 1940 Act
and other federal, state and local laws, providing reports to the Board, and
implementing the execution of transactions recommended by Delray in the exercise
of Weiss' independent judgment regarding the appropriateness of Delray's
investment recommendations for each Fund in accordance with its investment
objectives, policies and restrictions.
Mr. Breazeale also resigned from the Board, and following his
resignation, the Board appointed a new Trustee to fill the vacancy. The Board is
soliciting the election of the full five member slate of Board members.
Notwithstanding these changes, the Funds and their shareholders will
receive the same services as they currently enjoy. As you read this proxy
statement, please keep in mind the following:
Management of your Fund will not change significantly. These proposals
will not result in a significant change in the actual management of
your Fund. Delray will become the Funds' subadviser and Mr. Breazeale
will continue to have responsibility for making portfolio
recommendations for the Funds, while Weiss will continue to have
responsibility for the day-to-day management of the Funds and the
implementation of investment advice according to the objectives and
policies of each Fund.
The objectives and policies of your Fund will not change. Your Fund's
investment objectives and policies will remain the same.
The advisory fees paid by your Fund will not increase.
Which Proposals apply to my Fund?
The following table identifies each Proposal to be presented at the
Special Meeting and the Funds whose shareholders the Board is soliciting with
respect to that Proposal:
Proposal Affected Funds
1. To elect members of the Board. Money Market Fund and
Opportunity Fund
2. To approve an amended and restated Money Market Fund only
Investment Management Agreement between
the Trust, on behalf of Money Market
Fund, and Weiss.
3. To approve a Subadvisory Agreement between Money Market Fund and
Weiss and Delray. Opportunity Fund
Who is asking for my vote?
The Board is sending this proxy statement and the enclosed proxy
ballot(s) to all shareholders of the Funds. The Board is soliciting your proxy
to vote at the Special Meeting.
Why did you send me this booklet?
This proxy statement provides you with information you should review
before voting on the matters listed above and in the Notice of Special Meeting
for the Funds. You are receiving these proxy materials - a booklet that includes
the proxy statement and one proxy ballot for each Fund you own - because you
have the right to vote on important proposals concerning your investment in the
Fund.
When and where will the Special Meeting be held?
The Special Meeting will be held at the Embassy Suites PGA, 4380 PGA
Blvd., Palm Beach Gardens, Florida 33410, on January 29, 2002, at 9:30 a.m.,
Eastern time, and, if the Special Meeting is postponed or adjourned, at any
postponement or adjournment of that Meeting. If you expect to attend the Special
Meeting in person, please notify the Funds by calling 1-800-289-8100.
Who is eligible to vote?
The Board is sending this proxy statement, the attached Notice of
Special Meeting and the enclosed proxy ballot(s) on or about December 21, 2001
to all shareholders of record who are eligible to vote. Shareholders who owned
shares in any Fund at the close of business on December 6, 2001 ("Record Date")
are eligible to vote. Appendix 1 sets forth the number of shares of each Fund
issued and outstanding as of the Record Date. To the best of the Trust's
knowledge, as of December 6, 2001, no person owned beneficially more than 5% of
any class of any Fund, except as set forth in Appendix 2. The word "you" is used
in this proxy statement to refer to the person or entity who owns the Fund
shares and who, therefore, has voting rights in connection with the shares. For
pension plans, this usually means the trustees for the plan.
Who votes on each Proposal?
Shareholders of both Funds will vote as a group on Proposal 1 (i.e., a
Trust-wide vote). Shareholders of Money Market Fund only will vote on Proposal
2, and shareholders of each Fund will vote separately on Proposal 3 (i.e.,
Fund-wide votes).
How do I vote?
In addition to solicitation by mail, certain officers and
representatives of the Trust, officers and employees of Weiss or its affiliates
and certain financial services firms and their representatives, who will receive
no extra compensation for their services, may solicit proxies by telephone,
telegram or personally.
AlamoDirect, Inc. ("Solicitor") has been engaged to assist in the
solicitation of proxies, at an estimated cost of $7,000. As the date of the
Special Meeting approaches, certain Fund shareholders may receive a telephone
call from a representative of the Solicitor if their votes have not yet been
received. Authorization to permit the Solicitor to execute proxies may be
obtained by telephonic instructions from shareholders of a Fund. Proxies that
are obtained telephonically, electronically or via facsimile will be recorded in
accordance with certain procedures, as explained further in the "General
Information" section of this proxy statement. The Board believes that these
procedures are reasonably designed to ensure that both the identity of the
shareholder casting the vote and the voting instructions of the shareholder are
accurately determined.
Can I revoke my proxy after I vote it?
Any shareholder giving a proxy has the power to revoke it by mail
(addressed to the Secretary at the principal executive office of the Trust at
the address shown at the beginning of this proxy statement) or in person at the
Special Meeting, by executing a superseding proxy ballot or by submitting a
notice of revocation to the Trust.
Who pays for this proxy solicitation?
Weiss will pay for the costs associated with the Special Meeting and
the preparation and solicitation of proxies.
How can I obtain more information about the Funds?
Copies of each Fund's Annual Report for the fiscal year ended December
31, 2000, and its Semi-Annual Report for the period ended June 30, 2001, have
previously been mailed to shareholders. This proxy statement should be read in
conjunction with the Annual and Semi-Annual Reports. You can obtain copies of
those Reports, without charge, by writing to Weiss Money Management, Inc., 4176
Burns Road, Palm Beach Gardens, Florida 33410, or by calling 1-800-289-8100.
How does the Board recommend that I vote?
The Board recommends that shareholders vote FOR each of the Proposals
described in this proxy statement.
PROPOSAL 1
ELECTION OF TRUSTEES
What is the Proposal?
At the Special Meeting, shareholders will be asked to elect five
individuals nominated by the Board ("Nominees") to constitute the Board.
Information about each Nominee is set forth below. All of the Nominees are
currently Trustees of the Trust and each has consented to continue to serve as a
Trustee if re-elected by shareholders.
Who are the Nominees?
For election of Trustees at the Special Meeting, the Board has
nominated Martin D. Weiss, Esther S. Gordon, Robert Z. Lehrer, Donald Wilk and
Clara A. Maxcy.
The proxies will vote for the election of each of these Nominees unless
you withhold authority to vote for any or all of them in the proxy. If any or
all of the Nominees should become unavailable for election due to events not now
known or anticipated, the persons named as proxies will vote for such other
nominee or nominees as the current Trustees may recommend, or the Board may
reduce the number of Trustees in accordance with the terms of the Declaration of
Trust.
No Nominee is a party adverse to the Trust or any of its affiliates in
any material pending legal proceedings, nor does any Nominee have an interest
materially adverse to the Trust. Except as disclosed in the tables below, no
Nominee serves as a member of any other board of trustees or directors.
The following table sets forth information concerning the Nominees who
are not "interested persons" of the Trust within the meaning of Section 2(a)(19)
of the 1940 Act:
Name, Address and Age Position(s) with the Length of Time Served Principal Occupation(s) During Past
Trust 5 Years
Esther S. Gordon, 59 Trustee Since November 30, President, Esther's Natural, Inc.
4176 Burns Road 1995 (November 1999 - present) (vitamin
Palm Beach Gardens, FL 33410 and supplements distributor); Office
Manager, Nutrition S'Mart (February
2001 - present)(natural food market).
Robert Z. Lehrer, 67 Trustee Since November 30, President, Wyndmoor Sales Co. Inc.
P.O. Box 1679 1995 (1985 - present) (textiles).
107 Commodore Drive
Jupiter, FL 33468
Donald Wilk, 63 Trustee Since November 30, President, Donald Wilk Corporation
6044 Petaluma Drive 1995 (1990 - present) (computer sales
Boca Raton, FL 33433 and credit card processing).
The following table sets forth information concerning the officers, and
the Nominees who are interested persons of the Trust within the meaning of
Section 2(a)(19) of the 1940 Act:
Name, Address and Age Position(s) with the Length of Time Served Principal Occupation(s) During Past
Trust 5 Years
Martin D. Weiss, 54 President and Trustee* Trustee since Editor of "Safe Money Report";
4176 Burns Road November 30, 1995, President and Director, Weiss Group,
Palm Beach Gardens, FL 33410 President since Inc. (1971 - present); Sole
November 19, 2001 Director, Weiss (November 1980 -
present).
Clara A. Maxcy, 43 Vice President, Secretary since Vice President, Weiss (February 2001
4176 Burns Road Secretary and Trustee* February 11, 2000, - present). Operations Manager,
Palm Beach Gardens, FL 33410 Vice President and Compliance Administrator and
Trustee since Corporate Secretary, Weiss (August
November 19, 2001 1996 - February 2001);
Financial/Operations Principal,
Weiss Funds, Inc. (principal
underwriter of the Funds) (January
1996 - present); President, Weiss
Funds, Inc. (November 2001 -
present); Operations
Manager/Research Assistant, Weiss
Research, Inc. (November 1993 -
August 1996).
J. Barry Clause, 37 Treasurer July 27, 2000 Vice President and Director of
103 Bellevue Parkway Accounting, PFPC Inc. (2000 -
Wilmington, DE 19809 present); Assistant Vice President
and Accounting Manager, PFPC Inc.
(1992-2000).
*Dr. Weiss and Ms. Maxcy are deemed to be "interested persons" of the Trust by
virtue of their employment by Weiss. Trustees who are not "interested persons"
are referred to herein as "Independent Trustees."
Do the Nominees own shares of the Funds?
Appendix 3 sets forth the dollar range of shares of each class of each
Fund held directly or indirectly by the Nominees. To the best of the Trust's
knowledge, as of December 6, 2001 the Nominees and officers of the Trust as a
group owned less than 1% of the outstanding shares of each class of each Fund.
There have been no purchases or sales of any securities of Weiss or any
subsidiary thereof by any Nominee since the beginning of the most recently
completed fiscal year.
Why are Trustees being elected at the present time?
The Trustees have determined that a Board consisting of five members,
three of whom are Independent Trustees, has been an effective size in overseeing
the Funds. Therefore, the Trustees nominated to the Board all of the individuals
who currently serve as trustees of the Trust.
In connection with his resignation from Weiss, John N. Breazeale
resigned from the Board effective October 3, 2001. Four of the current Trustees
were elected to the Board by the sole shareholder of the Trust at the Trust's
inception. Under the 1940 Act, the Board may fill vacancies or appoint new
trustees if, immediately thereafter, at least two-thirds of the directors have
been elected by shareholders. Accordingly, the Board filled the vacancy created
by Mr. Breazeale's resignation by appointing an additional Trustee without a
shareholder election. After such appointment, 80% of the Board has been elected
by shareholders. However, if one more of the Trustees elected by shareholders
should later vacate the Board, this would necessitate that the Funds undergo the
expense of a separate proxy statement to elect new Board members in order to
retain a full slate of five Trustees. Because of this risk, the Board has
determined that it is in the best interests of the Funds and their shareholders
to include a proposal to elect all five members of the Board in this proxy
statement. The Board met to discuss Board candidates and, after due
consideration, recommend to shareholders the Nominees indicated above. In making
such recommendation, the Board took into consideration the knowledge,
background, and experience of the Nominees with the Funds.
The compensation arrangements for the Trust have not been changed by
the Board, so if shareholders elect the Nominees, their compensation as Trustees
would be the same as that currently in effect, as discussed later in this proxy
statement. If these measures are approved by shareholders, the newly constituted
Board may choose to consider whether the compensation of the Trustees should be
changed.
How long can Trustees serve on the Board?
Trustees generally hold office until their successors are elected and
qualified. A Trustee may resign or may be removed by a vote of two-thirds of the
Trustees or by two-thirds of the holders of the outstanding shares of the Trust
at any time.
Are there any Committees of the Board?
The Board has an Audit Committee, an Executive Committee and a
Valuation Committee.
The function of the Audit Committee is to assist the Board in
fulfilling its responsibilities to shareholders of the Funds relating to
accounting and reporting, internal controls and the adequacy of auditing
relative thereto. The Audit Committee currently consists of the Independent
Trustees, who are Esther S. Gordon, Robert Z. Lehrer and Donald Wilk. Mr. Wilk
serves as Chairman of the Committee. During the last year, the Audit Committee
held two meetings.
The function of the Executive Committee is to enable the Board to take
action if necessary in the absence of the full Board. The Executive Committee
currently consists of Martin D. Weiss and Clara A. Maxcy. During the last year,
the Executive Committee held no meetings.
The function of the Valuation Committee is to consider the valuation of
securities which may be difficult to price, although pricing difficulties are
infrequent given the nature of the Funds' portfolio securities. The Valuation
Committee currently consists of Martin D. Weiss and Clara A. Maxcy. During the
last year, the Valuation Committee held no meetings.
How often does the Board meet?
The Board currently conducts regular meetings four times a year. The
Audit Committee currently meets two times per year. In addition, the Board or
the Committees may hold special meetings by telephone or in person to discuss
specific matters that may require action prior to the next regular meeting.
During 2000, the Board held four meetings, and the Audit Committee held two
meetings, including regularly scheduled meetings and special meetings, whether
in person or by telephone. The Executive and Valuation Committees held no
meetings in 2000. All of the Independent Trustees attended all of the Board and
Audit Committee meetings in 2000. Mr. Breazeale attended all of the Board
meetings in 2000. Mr. Weiss attended fewer than 75% of the Board meetings in
2000.
What are the Trustees paid for their services?
Each Independent Trustee receives an annual fee of $1,500, $500 for
each Board meeting attended, $250 for each Audit Committee or other meeting
attended, plus reimbursement for out-of-pocket expenses for serving in that
capacity. Unless changed by the Board, the Trustees will continue to be
compensated under the arrangements that are currently in place. None of the
Trustees currently is entitled to receive pension or retirement benefits. Weiss
pays the compensation and certain expenses of their personnel who serve as
Trustees of the Trust, and receives management fees for its services. The
Trustees who are employees of Weiss participate in the fees paid to Weiss, and
the Trust makes no direct payments to them.
The following table sets forth information regarding the compensation
paid from the Trust to the Independent Trustees during 2000 for service on the
Board:
Pension or
Retirement Total Compensation
Aggregate Benefits Accrued Estimated Annual from Trust and
Compensation as Part of Trust Benefits Upon Fund Complex
Name (Position) from Trust Expenses Retirement Paid to Trustee
- --------------- ---------- -------- --------- ----------------
Esther S. Gordon $3,500 None None $3,500
(Trustee)
Robert Z. Lehrer $3,500 None None $3,500
(Trustee)
Donald Wilk $3,500 None None $3,500
(Trustee)
What are officers paid for their services?
The Trust does not pay its officers for the services they provide to
the Trust. Instead, the officers, who are also officers or employees of Weiss or
PFPC Inc., the administrator to the Funds ("PFPC"), are compensated by Weiss or
PFPC. The Trust's officers are appointed by the Board and hold office until they
resign, are removed or are otherwise disqualified to serve.
What is the vote required?
The affirmative vote of a plurality of the shares of the Trust voting
at the Special Meeting, in person or by proxy, is required to approve the
election of each Nominee to the Board.
What is the Board's recommendation on Proposal 1?
The Board recommends that shareholders VOTE FOR the election of each of
the Nominees.
PROPOSAL 2
APPROVAL OF AMENDED INVESTMENT MANAGEMENT AGREEMENT
(Money Market Fund Shareholders Only)
What is the Proposal?
On November 19, 2001 the full Board, including all of the Independent
Trustees, voted to approve an amended and restated Investment Management
Agreement between the Trust, on behalf of Money Market Fund, and Weiss (the
"amended management agreement"), subject to the approval of shareholders. A form
of the proposed amended management agreement is included as Exhibit A. The
following discussion of the amended management agreement is qualified in its
entirety by reference to the agreement set forth in Exhibit A.
If approved by shareholders, the amended management agreement would,
unless terminated early, continue from year to year thereafter, provided that
each such continuance is approved annually (i) by the Board, or by the vote of a
majority of the outstanding voting securities of Money Market Fund, and (ii) by
a majority of the Independent Trustees who are not parties to the amended
management agreement.
What are the new terms of the amended management agreement?
The terms of the amended management agreement are related to the
advisory services to be provided to Money Market Fund and are substantially
similar in all material respects to the terms of the current management
agreement, except that a provision is being added to that agreement to allow
Money Market Fund to utilize the services of a subadviser. This amendment to the
current agreement will permit Weiss to hire Delray to act as subadviser to Money
Market Fund, subject to shareholder approval of the arrangement (described below
in Proposal 3).
Like the current agreement, the amended management agreement provides
that Weiss is not subject to liability to Money Market Fund for any act or
omission in the course of, or connected with, rendering services under the
agreement, except by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of its obligations and duties under the agreement. In
addition, the amended management agreement provides that Weiss would not be
subject to liability to Money Market Fund for any act or omission in the course
of, or in connection with, a subadviser's rendering services under a subadvisory
agreement, except by reason of Weiss' willful misfeasance, bad faith, gross
negligence, or reckless disregard of its obligations and duties under the
agreement.
The amended management agreement may be terminated by Money Market Fund
without penalty on 60 days' notice by the Board or by a vote of the shareholders
of a majority of the Fund's outstanding shares, or on 60 days' notice by Weiss.
The amended management agreement would terminate automatically in the event of
its "assignment" (as defined in the 1940 Act).
What is the effective date for the amended management agreement?
Money Market Fund commenced operations on June 28, 1996. The current
management agreement is dated January 16, 1996 and was last approved by the
Board on November 19, 2001, and the Fund's sole initial shareholder on November
30, 1995 so that Money Market Fund could commence operations. The anticipated
effective date for the amended management agreement is January 29, 2002.
Will the investment advisory fees increase?
No. There will be no change in the advisory fees to be paid by Money
Market Fund. If Money Market Fund's shareholders approve the subadvisory
arrangement with Delray, Weiss will pay a portion of its fees received from
Money Market Fund to Delray for its services to the Fund. Under the current and
amended management agreements, the Fund pays Weiss a monthly fee at the annual
rate of 0.50% of the Fund's average net assets.
For the most recent fiscal year ended December 31, 2000, Weiss received
advisory fees of $111,041 from the Fund after waiving fees of $464,086 in order
to maintain total Fund operating expenses at 0.50% of the Fund's average net
assets. Weiss does not act as investment adviser to any other investment
companies with investment objectives similar to those of the Fund.
Will there be expense limitations imposed on the Fund?
Yes. Weiss has contractually agreed to limit the total operating
expenses of the Fund (excluding interest, taxes, brokerage commissions,
litigation, indemnification, and extraordinary expenses) to an annual rate of
0.60% of the Fund's average net assets, which lowers the Fund's expenses and
increases its yield. This contractual expense limitation is currently in effect
through April 30, 2002 and may be terminated or revised each year, at which
point the Fund's expenses may increase and its yield may be reduced.
Who is Weiss?
Weiss is registered as an investment adviser with the Securities and
Exchange Commission ("SEC"). The firm manages mutual funds and private and
institutional accounts. It has its principal offices at 4176 Burns Road, Palm
Beach Gardens, Florida 33410. As of November 30, 2001, Weiss manages over $275
million in assets. Weiss is a wholly-owned subsidiary of Weiss Group, Inc., also
located at 4176 Burns Road, Palm Beach Gardens, Florida 33410. Appendix 4
contains a list of the principal executive officers and the sole director of
Weiss and identifies those individuals who are officers and/or Trustees of the
Trust that are also officers and/or the sole director of Weiss. Martin D. Weiss
is the sole director and majority shareholder of Weiss Group, Inc. The Radcliffe
Family Investment Co. Limited, 4176 Burns Road, Palm Beach Gardens, Florida
33410, owns 10% of Weiss Group, Inc.
What factors did the Board consider?
In approving the amended management agreement, the Board considered a
number of factors, including: (1) Weiss' experience in overseeing a subadviser
for Opportunity Fund; (2) the benefits to the Fund and its shareholders that
would arise from retaining the Fund's former portfolio manager to provide
subadvisory services to the Fund; (3) the performance of the Fund; (4) the fact
that the advisory fees will not increase; (5) the commonality of terms of the
amended management agreement and the current agreement; and (6) the fairness of
the compensation payable to Weiss under the amended management agreement in
light of the services provided.
Based upon their review, the Board has determined that the amended
management agreement is in the best interests of Money Market Fund and its
shareholders. Accordingly, after consideration of the factors described above,
and such other factors and information it considered relevant, the Board,
including the unanimous vote of the Independent Trustees, approved the amended
management agreement and recommended that Money Market Fund's shareholders vote
in favor of the amended management agreement.
What is the required vote?
Approval of the amended management agreement requires the affirmative
vote of a majority of the outstanding voting securities of Money Market Fund,
which, for this purpose, means the affirmative vote of the lesser of (1) more
than 50% of the outstanding shares of the Fund, or (2) 67% or more of the shares
of the Fund present at the meeting, if more than 50% of the outstanding shares
of the Fund are represented at the meeting in person or by proxy.
What is the Board's recommendation on Proposal 2?
The Board recommends that you VOTE FOR this Proposal. Should the
amended management agreement not be approved by shareholders, or if the proposed
subadvisory agreement in Proposal 3 is not approved by shareholders, Weiss may
continue to serve as the investment adviser under the current agreement until
such time as the Trustees determine an appropriate course of action.
PROPOSAL 3
APPROVAL OF SUBADVISORY AGREEMENT
What is the Proposal?
John N. Breazeale, the portfolio manager for the Funds, recently
resigned from his position at Weiss in order to form his own investment
management firm, Delray. The Board has determined that retaining Delray as
subadviser to the Funds is in the best interests of the Funds and their
shareholders. Accordingly, the Board is asking shareholders to approve a
Subadvisory Agreement between Weiss and Delray, thereby allowing the Funds to
continue to receive the benefit of Mr. Breazeale's investment advice. Weiss
would remain the Funds' investment manager, providing compliance monitoring and
oversight in light of the Funds' obligations under the 1940 Act and other
federal, state and local laws, providing reports to the Board, and implementing
the execution of transactions recommended by Delray in the exercise of Weiss'
independent judgment regarding the appropriateness of Delray's investment
recommendations for each Fund in accordance with its investment objectives,
policies and restrictions.
The Board has approved the engagement of Delray as subadviser to each
of the Funds. Accordingly, on November 19, 2001, the Board approved a
Subadvisory Agreement between Weiss and Delray for the Funds (the "Proposed
Subadvisory Agreement"). Under the Proposed Subadvisory Agreement, Weiss would
have overall responsibility for the management of the Funds. As the subadviser,
Delray would make portfolio recommendations to Weiss for the Funds, and Weiss
would implement those recommendations based on the exercise of its independent
judgment. A form of the Proposed Subadvisory Agreement is included as Exhibit B.
The following discussion of the Proposed Subadvisory Agreement is qualified in
its entirety by reference to the agreement set forth in Exhibit B.
If approved by shareholders, the Proposed Subadvisory Agreement will
remain in effect for two years from the date it takes effect unless terminated
early, and will continue from year to year thereafter with respect to a Fund,
provided that each such continuance is approved annually (i) by the Board, or by
the vote of a majority of the outstanding voting securities of the applicable
Fund, and in either case, (ii) by a majority of the Independent Trustees who are
also not parties to the Proposed Subadvisory Agreement.
What are the terms of the Proposed Subadvisory Agreement?
Under the Proposed Subadvisory Agreement, Delray would act as
subadviser to the Funds. In this capacity, Delray, subject to the supervision of
the Board and Weiss, would render continuous investment advice to Weiss as to
the investment of each Fund's assets.
Pursuant to the Proposed Subadvisory Agreement, Delray is paid a
specified fee by Weiss. This fee is not paid directly by the Funds, so the
adviser/subadviser arrangement would not increase the cost of advisory services
to the Funds. The Proposed Subadvisory Agreement provides that Delray will not
be liable for any act or omission related to any services provided except by
reason of willful misfeasance, bad faith or gross negligence in the performance
of those duties, or by reason of reckless disregard of its obligations and
duties under the Proposed Subadvisory Agreement. The Proposed Subadvisory
Agreement can be terminated with respect to a Fund by either party on 60 days'
notice, and by the Fund or by vote of the Fund's shareholders on 60 days'
notice.
Who is Delray?
Delray is a Delaware corporation registered as an investment adviser
with the SEC. It has its principal offices at 10356 St. Andrews Road, Boynton
Beach, Florida 33436. John N. Breazeale, 10356 St. Andrews Road, Boynton Beach,
Florida 33436, is the sole owner, principal executive officer and sole director
of Delray. Mr. Breazeale is the former portfolio manager for both of the Funds,
and is currently acting as a consultant to Weiss. There are no individuals who
serve as officers and/or trustees of the Trust that are also officers and/or
directors of Delray. Delray does not act as investment adviser to any other
investment company.
What are the proposed subadvisory fees?
As compensation for its services as investment adviser, Money Market
Fund pays Weiss a monthly advisory fee as set forth under Proposal 2, and
Opportunity Fund pays Weiss a monthly advisory fee at the annual rate of 1.50%
of Opportunity Fund's average net assets. Weiss would pay Delray a quarterly
subadvisory fee at the rate of 10% of all fees payable during that period by
each Fund to Weiss, net of any fee waivers or expense reimbursements. The
investment subadvisory fee would be paid by Weiss, not the Funds.
Consistent with its obligation to seek best execution of Fund
securities transactions, Weiss from time to time directs brokerage transactions
to broker-dealers who provide research and execution products and services
("soft dollar benefits") to Weiss. Pursuant to the Proposed Subadvisory
Agreement, Weiss will make available certain of such soft dollar benefits to
Delray to assist Delray in its provision of services to the Funds.
What factors did the Board consider?
In considering whether to recommend that the Proposed Subadvisory
Agreement be approved by shareholders, the Board considered, among other things,
that the Proposed Subadvisory Agreement would allow Mr. Breazeale, through
Delray, to continue to provide investment advisory services to the Funds. The
Board also considered the nature and quality of the portfolio management
services that had been rendered by Mr. Breazeale and, in particular, Mr.
Breazeale's qualifications as the previous portfolio manager for the Funds and
information related to Mr. Breazeale's past record of performance with the
Funds. In addition, the Board considered the importance of maintaining
continuity of advisory services from Mr. Breazeale, through Delray. The Board
also noted that the overall advisory fees would remain the same and that the
advisory services to be provided by Delray under the Proposed Subadvisory
Agreement would be substantially the same as the advisory services previously
provided by Mr. Breazeale as portfolio manager for the Funds, although Weiss
would retain ultimate discretion concerning whether to implement Mr. Breazeale's
recommendations.
What is the required vote?
Approval of the Proposed Subadvisory Agreement with respect to a Fund
will require the affirmative vote of a "majority of the outstanding voting
securities" of that Fund, which, for this purpose, means the affirmative vote of
the lesser of (1) more than 50% of the Fund's outstanding shares, or (2) 67% or
more of the Fund's shares present at the meeting, if more than 50% of the Fund's
outstanding shares are represented at the meeting in person or by proxy.
What is the Board's recommendation on Proposal 3?
The Board recommends that you VOTE FOR the approval of the Proposed
Subadvisory Agreement between Weiss and Delray. If the Proposed Subadvisory
Agreement is not approved, the Trustees will determine what action, if any,
should be taken. The Trustees may consider proposing a different subadviser, or
having no subadviser.
GENERAL INFORMATION
Who is the distributor and administrator of the Funds?
Weiss Funds, Inc., located at 4176 Burns Road, Palm Beach Gardens,
Florida 33410, serves as the distributor of the Funds. PFPC, located at 103
Bellevue Parkway, Wilmington, Delaware 19809, serves as the administrator to the
Funds.
What are the voting procedures?
In all cases where a telephonic proxy is solicited, the Solicitor
representative is required to ask for each shareholder's full name and address,
or the last four digits of the shareholder's social security or employer
identification number, or both, and to confirm that the shareholder has received
the proxy materials in the mail. If the shareholder is a corporation or other
entity, the Solicitor is required to ask for the person's title and confirmation
that the person is authorized to direct the voting of the shares. If the
information solicited agrees with the information provided to the Solicitor,
then the Solicitor representative has the responsibility to explain the process,
read the Proposals on the proxy ballot(s), and ask for the shareholder's
instructions on the Proposals. Although the Solicitor representative is
permitted to answer questions about the process, he or she is not permitted to
recommend to the shareholder how to vote, other than to read any recommendation
set forth in the proxy statement. The Solicitor will record the shareholder's
instructions on the ballot. Within 72 hours, the shareholder will be sent a
letter or mailgram to confirm his or her vote and asking the shareholder to call
the Solicitor immediately if his or her instructions are not correctly reflected
in the confirmation.
In addition to returning the enclosed proxy ballot(s) by mail,
shareholders may provide their voting instructions through telephone touch-tone
voting at 1-800-597-7836 or Internet voting at https://vote.proxy-direct.com.
These options require shareholders to input a control number which is located on
each proxy ballot. After inputting this number, shareholders will be prompted to
provide their voting instructions on the Proposals. Shareholders will have an
opportunity to review their voting instructions and make any necessary changes
before submitting their voting instructions and terminating their telephone call
or Internet link.
Shareholders may also provide their voting instructions via facsimile.
The number to submit the proxy ballot(s) via facsimile is 1-888-796-9932. Please
be sure to fax both sides of the proxy ballot(s). If the side of the proxy
ballot on which you mark your votes is not faxed, your shares will be voted on
each Proposal as recommended by the Board.
If a shareholder wishes to participate in the Special Meeting, but
does not wish to give a proxy by telephone, facsimile or electronically, the
shareholder may still submit the proxy ballot(s) originally sent with the proxy
statement or attend in person. Should shareholders require additional
information regarding the proxy or replacement proxy ballot(s), they may contact
the Solicitor toll-free at 1-800-606-0479. As explained above, any proxy given
by a shareholder is revocable until voted at the Special Meeting.
What happens to my proxy once I vote it?
The Board has named Martin D. Weiss and Clara A. Maxcy as proxies. If
you followed the instructions when you voted, your shares will be voted as you
have directed. If you submitted your proxy but did not vote on any Proposal,
your shares will be voted on that Proposal as recommended by the Board.
What if a Proposal that is not in the proxy statement comes up at the Special
Meeting?
If any other matter is properly presented, the individuals named as
proxies will vote in accordance with their best judgment. At the time this proxy
statement was printed, the Board knew of no matter that needed to be acted on at
the Special Meeting other than those discussed in this proxy statement.
I want to attend the Special Meeting and vote in person. How do I do this?
If you attend the Special Meeting and wish to vote in person, you will
be given a ballot when you arrive. However, if your shares are held in the name
of your broker, bank or other nominee, you must bring a letter from the nominee
indicating that you are the beneficial owner of the shares on the record date
and authorizing you to vote.
What are my voting rights and the quorum requirements?
As of the Record Date, Money Market Fund offered one class of shares to
the public, and Opportunity Fund offered two classes of shares, Class A and
Class S shares. Each class of shares has the same rights, privileges and
preferences, except with respect to: (a) the effect of sales charges, if any;
(b) the different distribution and/or service fees, if any, borne by each class;
(c) the expenses allocable exclusively to each class; (d) voting rights on
matters exclusively affecting a single class; and (e) the exchange privilege of
each class. Appendix 1 sets forth the number of shares of each class of each
Fund issued and outstanding as of the Record Date. Shareholders of Opportunity
Fund will vote on each applicable Proposal as a single class regardless of the
class of shares they own.
The presence in person or by proxy of a Fund's shareholders entitled to
cast a majority in number of votes is necessary to constitute a quorum for the
transaction of business. In the event that a quorum of shareholders is not
represented at the Special Meeting with respect to one or both Funds, the
Meeting may be adjourned by a majority of the shares of the Trust (for a
Trust-wide vote) or applicable Fund (for a Fund-wide vote) present in person or
by proxy until a quorum exists. If there are insufficient votes to approve a
Proposal, the persons named as proxies may propose one or more adjournments of
the Special Meeting to permit additional time for the solicitation of proxies,
in accordance with applicable law. Adjourned meetings must be held within a
reasonable time after the date originally set for the meeting (but not more than
120 days after the record date). Solicitation of votes may continue to be made
without any obligation to provide any additional notice of the adjournment. The
persons named as proxies will vote in favor of such adjournment those proxies
which they are entitled to vote in favor of the Proposal and will vote against
any such adjournment those proxies to be voted against the Proposal.
For purposes of determining the presence of a quorum for transacting
business at the Special Meeting, abstentions and broker "non-votes" will be
treated as shares that are present but which have not been voted in favor of the
Proposal. Broker non-votes are proxy ballots received by a Fund from brokers or
nominees when the broker or nominee has neither received instructions from the
beneficial owner or other persons entitled to vote nor has discretionary power
to vote on a particular matter. Accordingly, shareholders are urged to forward
their voting instructions promptly. Abstentions and broker non-votes will not be
counted in favor of, but will have no other effect on, Proposal 1, and will have
the effect of a "no" vote on Proposals 2 and 3.
The Funds expect that, before the Special Meeting, broker-dealer firms
holding shares of the Funds in "street name" for their customers will request
voting instructions from their customers and beneficial owners. If these
instructions are not received by the date specified in the broker-dealer firms'
proxy solicitation materials, the Funds understand that the broker-dealers that
are members of the New York Stock Exchange may vote on the items to be
considered at the Special Meeting on behalf of their customers and beneficial
owners under rules of the New York Stock Exchange.
The number of shares that you may vote is the total of the number shown
on the proxy ballot(s) accompanying this proxy statement. Shareholders are
entitled to one vote for each full share and a proportionate vote for each
fractional share held.
PLEASE COMPLETE, SIGN AND RETURN THE ENCLOSED PROXY BALLOT(S) (OR TAKE ADVANTAGE
OF AVAILABLE ELECTRONIC OR TELEPHONIC VOTING PROCEDURES) PROMPTLY. NO POSTAGE IS
REQUIRED IF MAILED IN THE UNITED STATES.
By Order of the Board,
/s/ Clara A. Maxcy
- ----------------------------
Clara A. Maxcy
Vice President and Secretary
Appendix 1
Number of Shares Outstanding as of the Record Date, December 6, 2001
Total Shares
Fund Class A Class S Outstanding
- ---- ------- ------- -----------
Opportunity Fund 1,017,747.274 15,343.616 1,033,090.840
Total Shares
Fund Outstanding
- ---- -----------
Money Market Fund 138,216,805.140
Appendix 2
Beneficial Owners of More than 5% of a Fund
As of December 6, 2001
Amount and Nature
of Beneficial Percent
Fund Name and Class Name and Address of Beneficial Owner Ownership* of Class
- ------------------- ------------------------------------ --------- --------
Opportunity Fund - Class A None N/A N/A
Opportunity Fund - Class S George E. Campsen Jr., 9 19th Ave., Isle of Palms, 1,925.444 12.55%
South Carolina 29451
Opportunity Fund - Class S Roaul E. Somers TTEE, Roaul E. Somers Rev. Living 1,025.641 6.68%
TR, UA 8/4/94, 700 Pebble Creek Dr., Warrenton,
Missouri 63383
Opportunity Fund - Class S Mira L. Kozel, Danielle Kozel, 1150 Scottsville 978.474 6.38%
Rd., Rochester, New York 14624
Opportunity Fund - Class S Jeff C. Whittington, 721 Seaboard St., Ste. 3, 978.474 6.38%
Myrtle Beach, South Carolina 29577
Opportunity Fund - Class S James Donald Carmichael TTEE, Doncar Defined 978.474 6.38%
Benefit, PSP Rolloversub Account, 833 St.
Vincent's Dr., Ste. 500 Birmingham, Alabama 35205
Opportunity Fund - Class S Henry H. Brooks, Jr., Kay B. Brooks, P.O. Box 118, 978.474 6.38%
Dripping Springs, Texas 78620
Opportunity Fund - Class S John R. Weir TTEE, Joyce M. Weir TTEE, Weir Family 978.474 6.38%
Trust, 621 Woodbridge St., San Luis Obispo,
California 93401
Opportunity Fund - Class S Ercell L. Miller, Virginia S. Miller, 5420 N. 978.474 6.38%
Ocean Dr., Apt. 2403, Singer Island, Florida 33404
Opportunity Fund - Class S Douglas R. Townsend, 19 Richard Rd., Rye, New 2,606.791 16.99%
Hampshire 03870
Opportunity Fund - Class S FMT Co. Cust. IRA Rollover, FBO Burton Kozel, 1150 978.474 6.38%
Scottsville Rd., Rochester, New York 14624
Opportunity Fund - Class S FMT Co. Cust. IRA Rollover, FBO F. Allen Ledward, 978.474 6.38%
480 Upper Larkspur Rd., Estes Park, Colorado 80517
Opportunity Fund - Class S FMT Co. Cust. IRA Rollover, FBO Raymond L. Moyer, 978.474 6.38%
Jr., 7418 Atlantic Dr., Rowlett, Texas 75088
Opportunity Fund - Class S FMT Co., Cust. IRA Rollover, FBO Arthur S. Benton, 978.474 6.38%
145 15th St. NE, Apt. 1206, Atlanta, Georgia
30309-3569
Money Market Fund National Financial Services Corp. (for the 30,161,229.22 21.82%
exclusive benefit of its customers),
Attn: Mutual Funds Dept.
1 World Financial Center
200 Liberty Street, 5th Floor
New York, New York 10281
*Each of these entities is the shareholder of record and may be deemed to be the
beneficial owner of the shares listed for certain purposes under the securities
laws, although in certain instances they may not have an economic interest in
these shares and would, therefore, ordinarily disclaim any beneficial ownership
therein.
APPENDIX 3
Nominee Shareholdings
As of December 6, 2001
Dollar Range of Dollar Range of Aggregate Dollar
Equity Securities Equity Range in all Funds
in Money Market Securities in Overseen in the
Fund Opportunity Fund Weiss Fund Complex
Name of Nominee
Esther S. Gordon None None None
Robert Z. Lehrer None None None
Donald Wilk $1 - $10,000 None $1 - $10,000
Martin D. Weiss* None None None
Clara A. Maxcy $1 - $10,000 None $1 - $10,000
* Mr. Weiss may be deemed to indirectly own shares of Money Market Fund. Mr.
Weiss is the majority shareholder of Weiss, which owns between $50,001 -
$100,000 worth of shares of Money Market Fund.
APPENDIX 4
Additional Information about Weiss Money Management, Inc.
Weiss Money Management, Inc. ("Weiss"), a Florida corporation
registered as an investment adviser with the Securities and Exchange Commission,
serves as the investment adviser to The Weiss Fund (the "Trust"). Weiss is a
wholly-owned subsidiary of Weiss Group, Inc. which is located at 4176 Burns
Road, Palm Beach Gardens, Florida 33410.
Principal Executive Officers and Directors of Weiss
Name Positions and Offices with Other Principal
Investment Adviser Position(s) Held
Martin D. Weiss*# Director; Investment President and Trustee,
Committee Member The Weiss Fund (November
2001 - present); Editor
of "Safe Money Report";
President, Weiss Group,
Inc. (1971 - present).
Dana Nicholas* President Vice President, Weiss
Group, Inc. (November 1994
- present).
Clara A. Maxcy*# Vice President Vice President, Secretary
and Trustee, The Weiss Fund
(November 2001 - present);
President and Financial/
Operations Principal,
Weiss Funds, Inc.
(November 2001 - present).
* 4176 Burns Road, Palm Beach Gardens, Florida 33410
# Common Officer and/or Trustee of the Trust and Weiss.
EXHIBIT A
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made the 16th day of January, 1996, and amended and restated
on the ___ day of ___________, 2002, between THE WEISS FUND, a Massachusetts
business trust (the "Trust"), on behalf of the Weiss Treasury Only Money Market
Fund, and Weiss Money Management Inc., a corporation organized under the laws of
Florida (the "Adviser")
W I T N E S S E T H:
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to issue shares of beneficial
interest (hereafter referred to as "Shares") in separate series with each such
series representing the interests in a separate portfolio of securities and
other assets;
WHEREAS, the Trust has established and presently offers Shares of
beneficial interest in a portfolio currently known as the Weiss Treasury Only
Money Market Fund (the "Fund"); and
WHEREAS, the Trust desires to retain the Adviser to render investment
advisory services to the Trust with respect to the Fund as indicated herein and
the Adviser is willing to so render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
I. Appointment of Adviser. The Trust hereby appoints the Adviser to act as
investment adviser to the Trust and the Fund for the periods and on the terms
herein set forth. The Adviser accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
II. Delivery of Documents. The Trust has delivered (or will deliver as soon as
is possible) to the Adviser copies properly certified or authenticated of each
of the following documents:
A. Agreement and Declaration of Trust of the Trust dated as of August 10,
1995 (such Agreement and Declaration of Trust, as presently in effect and as
amended from time to time, is herein called the "Trust Agreement"), copies of
which are also on file with the Secretary of the Commonwealth of Massachusetts;
B. By-Laws of the Trust (such By-Laws, as presently in effect and as
amended from time to time, are herein called the "By-Laws");
C. Certified resolutions of the Shareholder(s) and the Trustees of the
Trust approving the terms of this Agreement;
D. Custodian Agreement (including related fee schedule) dated January 15,
1996 between the Trust and PNC Bank (such Agreement, as presently in effect and
as amended and/or superseded from time to time, is herein called the "Custodian
Agreement");
E. Prospectus and Statement of Additional Information of the Trust with
respect to the Fund as currently in effect (such Prospectus and Statement of
Additional Information, as currently in effect and as amended, supplemented
and/or superseded from time to time, is herein called the "Prospectus"); and
F. Registration Statement of the Trust under the Securities Act of 1933
(the "1933 Act"), and the 1940 Act on Form N-lA as filed with the Securities and
Exchange Commission (the "Commission") on August 10, 1995, and as amended on
Form N-lA (such Registration Statement, as presently in effect and as amended
from time to time, is herein called the "Registration Statement").
The Trust agrees to promptly furnish the Adviser from time to time with copies
of all amendments of or supplements to or otherwise current versions of any of
the foregoing documents not heretofore furnished.
III. Name of Trust or Fund. The Trust and the Fund may use any name derived from
the name "Weiss Money Management Inc.", if the Trust elects to do so, only for
so long as this Agreement, any other investment advisory or management agreement
between the Adviser and the Trust or any extension, renewal or amendment hereof
or thereof remains in effect, including any similar agreement with any
organization which shall have succeeded to the Adviser's business as investment
adviser. At such time as such an agreement shall no longer be in effect, the
Fund (to the extent the Trust has the legal power to cause it to be done) shall
cease to use such a name or any other name indicating that it is advised or
managed by or otherwise connected with the Adviser or any organization which
shall have so succeeded to the Adviser's business.
IV. Duties of Adviser.
A. Subject to the general supervision of the Trustees of the Trust, the
Adviser shall manage the investment operations of the Fund and the composition
of the Fund's assets, including the purchase, retention and disposition thereof.
In this regard, the Adviser:
1. shall provide supervision of the Fund's assets, furnish a
continuous investment program for the Fund, determine from time to time what
investments or securities will be purchased, retained or sold by the Fund, and
what portion of the assets will be invested or held uninvested as cash;
2. shall place orders with broker-dealers, foreign currency dealers,
futures commissions merchants or others pursuant to the Adviser's determinations
in accordance with the Fund's policies as expressed in the Registration
Statement; and
3. may, on occasions when it deems the purchase or sale of a security
to be in the best interests of the Fund as well as its other customers
(including any other Fund or any other investment company or trust or advisory
account for which the Adviser acts as adviser), aggregate, to the extent
permitted by applicable laws and regulations, the securities to be sold or
purchased in order to obtain the best net price and the most favorable
execution. In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the Adviser in
the manner it considers to be the most equitable and consistent with its
fiduciary obligations to the Fund and to such other customers.
B. The Adviser, in the performance of its duties hereunder, shall act in
conformity with the Trust Agreement, By-Laws, Registration Statement and
Prospectus and with the instructions and directions of the Trustees of the
Trust, and will use its best efforts to conform to the requirements of the 1940
Act, the Investment Advisers Act of 1940 (to the extent applicable), the
Internal Revenue Code of 1986, as amended, (the "Code") relating to regulated
investment companies and all rules and regulations thereunder, the Insider
Trading and Securities Fraud Enforcement Act of 1988 (to the extent applicable)
and all other applicable federal and state laws, regulations and rulings,
subject always to policies and instructions adopted by the Trust's Board of
Trustees. In connection therewith, the Adviser shall use reasonable efforts to
manage the Fund so that it will qualify as a regulated investment company under
Subchapter M of the Code and regulations issued thereunder.
C. The Adviser shall render to the Trustees of the Trust such periodic and
special reports as the Trustees may reasonably request.
D. The Adviser shall notify the Trust of any material change in the
management of the Adviser within a reasonable time after such change.
E. The Adviser shall immediately notify the Trust in the event that the
Adviser or any of its affiliates: (1) becomes aware that it is subject to a
statutory disqualification that prevents the Adviser from serving as investment
adviser pursuant to this Agreement; or (2) becomes aware that it is the subject
of an administrative proceeding or enforcement action by the Securities and
Exchange Commission or other regulatory authority. The Adviser further agrees to
notify the Trust immediately of any material fact known to the Adviser
respecting or relating to the Adviser that is not contained in the Trust's
Registration Statement regarding the Trust, or any amendment or supplement
thereto, but that is required to be disclosed therein, and of any statement
contained therein that becomes untrue in any material respect.
F. The services of the Adviser hereunder are not deemed exclusive and the
Adviser shall be free to render similar services to others so long as its
services under this Agreement are not impaired thereby.
V. Allocation of Charges and Expenses. Except as otherwise specifically provided
in this section 5, the Adviser shall pay the compensation and expenses of all
trustees, officers and executive employees of the Trust (including the Fund's
share of payroll taxes) who are affiliated persons of the Adviser, and the
Adviser shall make available, without expense to the Fund, the services of such
of its directors, officers and employees as may duly be elected officers of the
Trust, subject to their individual consent to serve and to any limitations
imposed by law. The Adviser shall provide at its expense the portfolio
management services described in section 4 hereof, other than the cost
(including taxes and brokerage commissions, if any) of securities purchased for
the Fund.
The Adviser shall not be required to pay any expenses of the Fund other
than those specifically allocated to it in this section 5.
VI. Management Fee. For all services to be rendered, payments to be made and
costs to be assumed by the Adviser as provided in sections 4 and 5 hereof, the
Trust on behalf of the Fund shall pay the Adviser on the last day of each month
the unpaid balance of a fee equal to 0.50% of the average daily net assets as
defined below of the Fund for such month.
The "average daily net assets" of the Fund shall mean the average of
the values placed on the Fund's net assets as of 4:00 p.m. (New York time) on
each day on which the net asset value of the Fund is determined consistent with
the provisions of Rule 22c-l under the 1940 Act or, if the Fund lawfully
determines the value of its net assets as of some other time on each business
day, as of such time. The value of the net assets of the Fund shall always be
determined pursuant to the applicable provisions of the Declaration and the
Registration Statement. If the determination of net asset value does not take
place for any particular day, then for the purposes of this section 6, the value
of the net assets of the Fund as last determined shall be deemed to be the value
of its net assets as of 4:00 p.m. (New York time), or as of such other time as
the value of the net assets of the Fund's portfolio may be lawfully determined
on that day. If the Fund determines the value of the net assets of its portfolio
more than once on any day, then the last such determination thereof on that day
shall be deemed to be the sole determination thereof on that day for the
purposes of this section 6.
The Adviser agrees that its gross compensation for any fiscal year
shall not be greater than an amount which, when added to the other expenses of
the Fund, shall cause the aggregate expenses of the Fund to equal the maximum
expenses under the lowest applicable expense limitation established pursuant to
the statutes or regulations of any jurisdiction in which the Shares of the Fund
may be qualified for offer and sale. Such calculation shall not take into
account expenses which may be excluded as provided under applicable law. Except
to the extent that such amount has been reflected in reduced payments to the
Adviser, the Adviser shall refund to the Fund the amount of any payment received
in excess of the limitation pursuant to this section 6 as promptly as
practicable after the end of such fiscal year, provided that the Adviser shall
not be required to pay the Fund an amount greater than the fee paid to it in
respect of such year pursuant to this Agreement. As used in this section 6,
"expenses" shall mean those expenses included in the applicable expense
limitation having the broadest specifications thereof, and "expense limitation"
means a limit on the maximum annual expenses which may be incurred by an
investment company determined (i) by multiplying a fixed percentage by the
average, or by multiplying more than one such percentage by different specified
amounts of the average, of the values of an investment company's net assets for
a fiscal year or (ii) by multiplying a fixed percentage by an investment
company's net investment income for a fiscal year. The words "lowest applicable
expense limitation" shall be construed to result in the largest reduction of the
Adviser's compensation for any fiscal year of the Fund; provided, however, that
nothing in this Agreement shall limit the Adviser's fees if not required by an
applicable statute or regulation referred to above in this section 6.
The Adviser may waive all or a portion of its fees provided for
hereunder and such waiver shall be treated as a reduction in purchase price of
its services. The Adviser shall be contractually bound hereunder by the terms of
any publicly announced waiver of its fee, or any limitation of the Fund's
expenses, as if such waiver or limitation were fully set forth herein.
VII. Avoidance of Inconsistent Position; Services Not Exclusive. In connection
with purchases or sales of portfolio securities and other investments for the
account of the Fund, neither the Adviser nor any of its directors, officers or
employees shall act as a principal or agent or receive any commission. The
Adviser or its agent shall arrange for the placing of all orders for the
purchase and sale of portfolio securities and other investments for the Fund's
account with brokers or dealers selected by the Adviser in accordance with Fund
policies as expressed in the Registration Statement. If any occasion should
arise in which the Adviser gives any advice to its clients concerning the Shares
of the Fund, the Adviser shall act solely as investment counsel for such clients
and not in any way on behalf of the Fund.
The Adviser's services to the Fund pursuant to this Agreement are not
to be deemed to be exclusive and it is understood that the Adviser may render
investment advice, management and services to others. In acting under this
Agreement, the Adviser shall be an independent contractor and not an agent of
the Trust.
VIII. Limitation of Liability of Manager. As an inducement to the Adviser's
undertaking to render services pursuant to this Agreement, the Trust agrees that
the Adviser shall not be liable under this Agreement for any error of judgment
or mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, provided that nothing in this Agreement
shall be deemed to protect or purport to protect the Adviser against any
liability to the Trust, the Fund or its shareholders to which the Adviser 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. Any person, even though also
employed by the Adviser, who may be or become an employee of and paid by the
Fund shall be deemed when acting within the scope of his or her employment by
the Fund, to be acting in such employment solely for the Fund and not as the
Adviser's employee or agent.
IX. Duration and Termination of This Agreement. This Agreement shall remain in
force until January 15, 1998, and continue in force from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually (a) by the vote of a majority of the Trustees who are not parties
to this Agreement or interested persons of any party to this agreement, cast in
person at a meeting called for the purpose of voting on such approval and (b) by
the Trustees of the Trust, or by the vote of a majority of the outstanding
voting securities of the Fund. The aforesaid requirement that continuance of
this Agreement be "specifically approved at least annually" shall be construed
in a manner consistent with the 1940 Act and the rules and regulations
thereunder.
This Agreement may be terminated with respect to the Fund at any time,
without the payment of any penalty, by the vote of a majority of the outstanding
voting securities of the Fund or by the Trust's Board of Trustees on 60 days'
written notice to the Adviser, or by the Adviser on 60 days' written notice to
the Fund. This Agreement shall terminate automatically in the event of its
assignment .
X. Retention of Sub-Advisers. Subject to the Fund's obtaining any initial and
periodic approvals that are required under Section 15 of the 1940 Act, the
Adviser may retain a sub-adviser or sub-advisers with respect to the Fund, at
the Adviser's own cost and expense.
XI. Amendment of this Agreement. 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 whom enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved by the vote of a majority of the Trustees who are not parties to
this Agreement or interested persons of any party to this Agreement, cast in
person at a meeting called for the purpose of voting on such approval.
XII. Miscellaneous. The captions in this Agreement are included for convenience
of reference only and in no way define or limit 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 interpreting the provisions of this Agreement, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"affiliated person," "assignment" and "majority of the outstanding voting
securities"), as from time to time amended, shall be applied, subject, however,
to such exemptions as may be granted by the SEC by any rule, regulation or
order.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts, provided that nothing herein shall be construed
in a manner inconsistent with the 1940 Act, or in a manner which would cause the
Fund to fail to comply with the requirements of Subchapter M of the Code.
This Agreement shall supersede all prior investment advisory or
management agreements entered into between the Adviser and the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
THE WEISS FUND, ON BEHALF OF
WEISS TREASURY ONLY MONEY
MARKET FUND
Attest:
______________________ By: __________________
Title: President
WEISS MONEY MANAGEMENT INC.
Attest:
_______________________ By: _________________
Title: President
EXHIBIT B
SUBADVISORY AGREEMENT
AGREEMENT made as of the ___ day of _________, 2002, between WEISS
MONEY MANAGEMENT, INC., 4176 Burns Road, Palm Beach Gardens, Florida 33410
(hereinafter called the "Manager"), and DELRAY FINANCIAL CORPORATION, 10356 St.
Andrews Road, Boynton Beach, Florida 33436 (hereinafter called the
"Subadviser").
WHEREAS, The Weiss Fund (the "Trust") is a Massachusetts business trust
organized with one or more series of shares, and is registered as an investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Manager has entered into Investment Advisory Agreement(s)
(the "Advisory Agreement") with the Trust, pursuant to which the Manager acts as
investment adviser to the portfolio assets of certain series of the Trust listed
on Schedule A hereto, as amended from time to time (each a "Fund" and,
collectively, the "Funds"); and
WHEREAS, the Manager desires to utilize the services of the Subadviser
as investment subadviser with respect to each Fund; and
WHEREAS, the Subadviser is willing to perform such services on the
terms and conditions hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
XIII. Duties of the Subadviser. The Subadviser will serve the Manager as
investment subadviser with respect to each Fund.
A. As investment subadviser to the Funds, the Subadviser is hereby
authorized and directed and hereby agrees, in accordance with the Subadviser's
best judgment and subject to the stated investment objectives, policies and
restrictions of the Funds as set forth in the current prospectuses and
statements of additional information of the Trust (including amendments) and in
accordance with the Trust's Declaration of Trust, as amended, and By-laws
governing the offering of its shares (collectively, the "Trust Documents"), the
1940 Act and the provisions of the Internal Revenue Code of 1986, as amended
(the "Internal Revenue Code"), relating to regulated investment companies, and
subject to such resolutions as from time to time may be adopted by the Trust's
Board of Trustees, to render continuous investment advice to the Manager as to
the investment of the Funds' assets, provide supervision of the Funds' assets,
and furnish a continuous investment program for the Funds, as may be most
appropriate to the achievement of the investment objectives of the Funds as
stated in the aforesaid prospectuses, and to provide research and analysis
relative to the investment program and investments of the Funds and to monitor
on a continuing basis the performance of the portfolio securities of the Funds.
The Subadviser shall have no discretion regarding nor responsibility for the
implementation or execution of transactions which it recommends to the Manager
for any Fund, such discretion and responsibility being solely with the Manager
in the exercise of its independent judgement regarding the appropriateness of
the Subadviser's investment recommendations for the Fund in light of its
investment objectives, policies and restrictions. The Manager will make
available to the Subadviser certain research services.
B. The Subadviser shall (i) comply with all reasonable requests of the
Trust, or the independent auditors of the Trust, for information, including
information required in connection with the Trust's annual audit and filings
with the Securities and Exchange Commission (the "SEC") and state securities
commissions, and (ii) provide such other services as the Subadviser shall from
time to time determine to be necessary or useful to the administration of the
Funds, including, but not limited to, cooperation with the Manager in connection
with any examination of the Trust by the SEC or any other regulatory agency.
C. The Subadviser shall furnish to the Trust's Board of Trustees
periodic reports on the performance of its obligations under this Agreement and
shall supply such additional reports and information as the Trust's officers or
Board of Trustees shall reasonably request.
D. The investment advisory services provided by the Subadviser under
this Agreement are not to be deemed exclusive and the Subadviser shall be free
to render similar services to others, as long as such services do not impair the
services rendered to the Manager or the Trust.
XIV. Delivery of Documents to the Manager. The Subadviser has furnished the
Manager with copies of each of the following documents:
A. The Subadviser's current Form ADV and any amendments thereto; and
B. The Code of Ethics of the Subadviser as currently in effect.
The Subadviser will furnish the Manager from time to time with copies,
properly certified or otherwise authenticated, of all material amendments of or
supplements to the foregoing, if any. Additionally, the Subadviser will provide
to the Manager such other documents relating to its services under this
Agreement as the Manager may reasonably request on a periodic basis. Such
amendments or supplements as to items A and B above will be provided within 30
days of the time such materials became available to the Subadviser.
XV. Expenses.
The Subadviser shall pay all of its expenses arising from the
performance of its obligations under Section I.
XVI. Compensation.
The Manager shall pay to the Subadviser for its services hereunder, and
the Subadviser agrees to accept as full compensation therefor, a fee with
respect to each Fund as set forth on Schedule B. If the Subadviser shall serve
hereunder for less than the whole of any payment period, the fee hereunder shall
be prorated accordingly.
XVII. Independent Contractor.
In the performance of its duties hereunder, the Subadviser is and shall
be an independent contractor and, except as expressly provided herein or
otherwise authorized in writing, shall have no authority to act for or represent
the Trust, the Funds, any other series of the Trust or the Manager in any way or
otherwise be deemed to be an agent of the Trust, the Funds, any other series of
the Trust or the Manager.
XVIII. Term of Agreement.
This Agreement shall continue in full force and effect for two years
from the date of execution, and from year to year thereafter if such continuance
is approved in the manner required by the 1940 Act if the Subadviser shall not
have notified the Manager in writing at least 60 days prior to such date or
prior to such date of any year thereafter that it does not desire such
continuance. This Agreement may be terminated at any time, without payment of
penalty by a Fund, by vote of the Trust's Board of Trustees or a majority of the
outstanding voting securities of the applicable Fund (as defined by the 1940
Act), or by the Manager or by the Subadviser, upon 60 days' written notice. This
Agreement will automatically terminate in the event of its assignment (as
defined by the 1940 Act) or upon the termination of the Advisory Agreement.
XIX. Amendments.
This Agreement may be amended by consent of the parties hereto provided
that the consent of the applicable Fund is obtained in accordance with the
requirements of the 1940 Act.
XX. Confidential Treatment.
It is understood that any information or recommendation supplied by the
Subadviser in connection with the performance of its obligations hereunder is to
be regarded as confidential and for use only by the Manager, the Trust or such
persons as the Manager may designate in connection with the Funds. It is also
understood that any information supplied to the Subadviser in connection with
the performance of its obligations hereunder, particularly, but not limited to,
any list of securities which, on a temporary basis, may or may not be bought or
sold for the Funds, and any nonpublic personal information of Fund shareholders,
as such information is defined under Regulation S-P, or any list derived from
such information, is to be regarded as confidential and for use only by the
Subadviser in connection with its obligation to provide investment advice and
other services to the Funds, and may not be disclosed to any third parties.
XXI. Representations and Warranties. The Subadviser hereby represents and
warrants as follows:
A. The Subadviser is registered with the SEC as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and
such registration is current, complete and in full compliance with all material
applicable provisions of the Advisers Act and the rules and regulations
thereunder;
B. The Subadviser has all requisite authority to enter into, execute,
deliver and perform the Subadviser's obligations under this Agreement;
C. The Subadviser's performance of its obligations under this
Agreement does not conflict with any law, regulation or order to which the
Subadviser is subject; and
D. The Subadviser has reviewed the portion of (i) the registration
statement filed with the SEC, as amended from time to time, for the Funds
("Registration Statement"), and (ii) each Fund's prospectuses and statements of
additional information (including amendments) thereto, in each case in the form
received from the Manager with respect to the disclosure about the Subadviser
and the Funds of which the Subadviser has knowledge ("Subadviser and Fund
Information") and except as advised in writing to the Manager such Registration
Statement, prospectuses and statements of additional information (including
amendments) contain, as of their respective dates, no untrue statement of any
material fact of which the Subadviser has knowledge and do not omit any
statement of a material fact of which the Subadviser has knowledge that was
required to be stated therein or necessary to make the statements contained
therein not misleading.
XXII. Covenants. The Subadviser hereby covenants and agrees that, so long as
this Agreement shall remain in effect:
A. The Subadviser shall maintain the Subadviser's registration as an
investment adviser under the Advisers Act, and such registration shall at all
times remain current, complete and in full compliance with all material
applicable provisions of the Advisers Act and the rules and regulations
thereunder;
B. The Subadviser's performance of its obligations under this
Agreement shall not conflict with any law, regulation or order to which the
Subadviser is then subject;
C. The Subadviser shall at all times comply with the Advisers Act and
the 1940 Act, and all rules and regulations thereunder, and all other applicable
laws and regulations, and the Registration Statement, prospectuses and
statements of additional information (including amendments) and with any
applicable procedures adopted by the Trust's Board of Trustees, provided that
such procedures are identified in writing to the Subadviser;
D. The Subadviser shall promptly notify the Manager and the Funds upon
the occurrence of any event that might disqualify or prevent the Subadviser from
performing its duties under this Agreement. The Subadviser shall promptly notify
the Manager and the Funds if there are any changes to its organizational
structure or the Subadviser has become the subject of any adverse regulatory
action imposed by any regulatory body or self-regulatory organization. The
Subadviser further agrees to notify the Manager of any changes relating to it or
the provision of services by it that would cause the Registration Statement,
prospectuses or statements of additional information (including amendments) for
the Funds to contain any untrue statement of a material fact or to omit to state
a material fact that is required to be stated therein or is necessary to make
the statements contained therein not misleading, in each case relating to
Subadviser and Fund Information; and
E. The Subadviser will render advice to the Manager regarding the
investment of each Fund's assets that is consistent with maintaining the Fund's
status as a regulated investment company under Subchapter M of the Internal
Revenue Code.
F. The Subadviser shall provide to the Trust's Board of Trustees a
copy of the Subadviser's Code of Ethics adopted pursuant to Rule 17j-1 under the
1940 Act and any amendments thereto, and all certifications required under that
rule.
XXIII. Use of Names.
A. The Subadviser acknowledges and agrees that the names "The Weiss
Fund" and "Weiss Money Management, Inc.," and abbreviations or logos associated
with those names, are the valuable property of the Manager and its affiliates;
that the Funds, the Manager and their affiliates have the right to use such
names, abbreviations and logos; and that the Subadviser shall use the names "The
Weiss Fund" and "Weiss Money Management, Inc.," and associated abbreviations and
logos, only in connection with the Subadviser's performance of its duties
hereunder. Further, in any communication with the public and in any marketing
communications of any sort, Subadviser agrees to obtain prior written approval
from Manager before using or referring to "The Weiss Fund" and "Weiss Money
Management, Inc.," or the Funds or any abbreviations or logos associated with
those names.
B. The Manager acknowledges that "Delray" and "Delray Financial" and
abbreviations or logos associated with those names are valuable property of
Delray Financial Corporation and are distinctive in connection with investment
advisory and related services provided by the Subadviser, the "Delray" name is a
property right of the Subadviser, and the "Delray" and "Delray Financial" names
are understood to be used by each Fund upon the conditions hereinafter set
forth; provided that each Fund may use such names only so long as the Subadviser
shall be retained as the investment subadviser of the Fund pursuant to the terms
of this Agreement.
C. The Subadviser acknowledges that each Fund and its agents may use
the "Delray" and "Delray Financial" names in connection with accurately
describing the activities of the Fund, including use with marketing and other
promotional and informational material relating to the Fund with the prior
written approval always of the Subadviser. In the event that the Subadviser
shall cease to be the investment subadviser of a Fund, then the Fund at its own
or the Manager's expense, upon the Subadviser's written request: (i) shall cease
to use the Subadviser's name for any commercial purpose; and (ii) shall use its
best efforts to cause the Fund's officers and trustees to take any and all
actions that may be necessary or desirable to effect the foregoing and to
reconvey to the Subadviser all rights which a Fund may have to such name. The
Manager agrees to take any and all reasonable actions as may be necessary or
desirable to effect the foregoing and the Subadviser agrees to allow the Funds
and their agents a reasonable time to effectuate the foregoing.
D. The Subadviser hereby agrees and consents to the use of the
Subadviser's name upon the foregoing terms and conditions.
XXIV. Reports by the Subadviser and Records of the Funds.
The Subadviser shall furnish the Manager information and reports
necessary to the operation of the Funds, including information required to be
disclosed in the Trust's Registration Statement, in such form as may be mutually
agreed. The Subadviser shall immediately notify and forward to both the Manager
and legal counsel for the Trust any legal process served upon it on behalf of
the Manager or the Trust.
In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Subadviser agrees that all records it maintains for the Trust are the
property of the Trust and further agrees to surrender promptly to the Trust or
the Manager any such records upon the Trust's or the Manager's request. The
Subadviser further agrees to maintain for the Trust the records the Trust is
required to maintain under Rule 31a-1(b) insofar as such records relate to the
investment affairs of each Fund. The Subadviser further agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act the records it maintains
for the Trust.
XXV. Indemnification.
The Subadviser agrees to indemnify and hold harmless the Manager, any
affiliated person within the meaning of Section 2(a)(3) of the 1940 Act
("affiliated person") of the Manager and each person, if any, who, within the
meaning of Section 15 of the Securities Act of 1933, as amended (the "1933
Act"), controls ("controlling person") the Manager, against any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) to which the Manager, the Trust or such affiliated person or
controlling person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out
of Subadviser's responsibilities as subadviser of the Funds (1) to the extent of
and as a result of the willful misconduct, bad faith, or gross negligence of the
Subadviser, any of the Subadviser's employees or representatives or any
affiliate of or any person acting on behalf of the Subadviser, or (2) as a
result of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, prospectuses or statements of
additional information covering the Funds or the Trust or any amendment thereof
or any supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, if such a statement or omission was made in reliance
upon written information furnished by the Subadviser to the Manager, the Trust
or any affiliated person of the Manager or the Trust expressly for use in the
Trust's Registration Statement, or upon verbal information confirmed by the
Subadviser in writing expressly for use in the Trust's Registration Statement;
provided, however, that in no case is the Subadviser's indemnity in favor of the
Manager or any affiliated person or controlling person of the Manager deemed to
protect such person against any liability to which any such person would
otherwise be subject by reason of willful misconduct, 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.
The Manager agrees to indemnify and hold harmless the Subadviser, any
affiliated person of the Subadviser and each controlling person of the
Subadviser, against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which the
Subadviser or such affiliated person or controlling person may become subject
under the 1933 Act, the 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of the Manager's responsibilities as
investment manager of the Funds (1) to the extent of and as a result of the
willful misconduct, bad faith, or gross negligence of the Manager, any of the
Manager's employees or representatives or any affiliate of or any person acting
on behalf of the Manager, or (2) as a result of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
prospectuses or statements of additional information covering the Funds or the
Trust or any amendment thereof or any supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading, if such a statement
or omission was made by the Trust other than in reliance upon written
information furnished by the Subadviser, or any affiliated person of the
Subadviser, expressly for use in the Trust's Registration Statement or other
than upon verbal information confirmed by the Subadviser in writing expressly
for use in the Trust's Registration Statement; provided, however, that in no
case is the Manager's indemnity in favor of the Subadviser or any affiliated
person or controlling person of the Subadviser deemed to protect such person
against any liability to which any such person would otherwise be subject by
reason of willful misconduct, 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.
XXVI. Notices.
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered or sent by pre-paid first
class letter post to the following addresses or to such other address as the
relevant addressee shall hereafter specify for such purpose to the others by
notice in writing and shall be deemed to have been given at the time of
delivery.
If to the Manager: WEISS MONEY MANAGEMENT, INC.
4176 Burns Road
Palm Beach Gardens, FL 33410
Attention: Clara A. Maxcy
If to the Trust: THE WEISS FUND
4176 Burns Road
Palm Beach Gardens, FL 33410
Attention: Clara A. Maxcy
If to the Subadviser: DELRAY FINANCIAL CORPORATION
10356 St. Andrews Road
Boynton Beach, Florida 33436
Attention: John N. Breazeale
XXVII. Limitation of Liability of the Trust, its Trustees, and Shareholders.
It is understood and expressly stipulated that none of the trustees,
officers, agents, or shareholders of any series of the Trust shall be personally
liable hereunder. It is understood and acknowledged that all persons dealing
with any series of the Trust must look solely to the property of such series for
the enforcement of any claims against that series as neither the trustees,
officers, agents or shareholders assume any personal liability for obligations
entered into on behalf of any series of the Trust. No series of the Trust shall
be liable for the obligations or liabilities of any other series of the Trust.
XXVIII. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of The Commonwealth of Massachusetts. Anything herein to the contrary
notwithstanding, this Agreement shall not be construed to require, or to impose
any duty upon either of the parties, to do anything in violation of any
applicable laws or regulations.
XXIX. Severability.
Should any part of this Agreement be held 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 inure to the benefit
of the parties hereto and their respective successors.
XXX. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all such counterparts shall constitute a
single instrument.
IN WITNESS WHEREOF, WEISS MONEY MANAGEMENT, INC. AND DELRAY FINANCIAL
CORPORATION have each caused this instrument to be signed in duplicate on its
behalf by the officer designated below thereunto duly authorized.
WEISS MONEY MANAGEMENT, INC.
By:
--------------------------
Title: Vice President
DELRAY FINANCIAL CORPORATION
By:
--------------------------
Title: President
SCHEDULE A
TO SUBADVISORY AGREEMENT BETWEEN
WEISS MONEY MANAGEMENT, INC. AND DELRAY FINANCIAL CORPORATION
DATED AS OF __________, 2002
-----------------------------------
Funds:
Weiss Millennium Opportunity Fund
Weiss Treasury Only Money Market Fund
SCHEDULE B
TO SUBADVISORY AGREEMENT BETWEEN
WEISS MONEY MANAGEMENT, INC. AND DELRAY FINANCIAL CORPORATION
DATED AS OF ____________, 2002
----------------------------------
Fee schedule:
Weiss Millennium Opportunity Fund: The Adviser shall pay the Subadviser as
compensation for the Subadviser's services to be rendered hereunder a quarterly
fee in arrears at the rate of 10% of all fees payable during the same quarter by
the Fund to the Adviser for investment advisory services provided pursuant to
the Advisory Agreement, net of any fee waivers or expense reimbursements made by
the Adviser with respect to the Fund relating to such quarter.
Weiss Treasury Only Money Market Fund: The Adviser shall pay the Subadviser as
compensation for the Subadviser's services to be rendered hereunder a quarterly
fee in arrears at the rate of 10% of all fees payable during the same quarter by
the Fund to the Adviser for investment advisory services provided pursuant to
the Advisory Agreement, net of any fee waivers or expense reimbursements made by
the Adviser with respect to the Fund relating to such quarter.