APPENDIX C
WESTON PORTFOLIOS
PORTFOLIO
FORM OF INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT made this _____ day of ___________, 1998 by
and between Weston Portfolios, a Massachusetts business trust (the "Trust") for
the Portfolio (the "Fund") and Weston Financial Group, Inc., a Massachusetts
corporation (the "Advisor").
BACKGROUND
The Fund, a series of the Trust, is organized and operated as an open-end
diversified management investment company, registered under the Investment
Company Act of 1940 as amended (the "1940 Act"). The Trust desires to retain the
Advisor to render investment advisory services to the Fund, and the Advisor is
willing to render such services on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. The Trust hereby appoints the Advisor to act as investment advisor to
the Fund for the period and on the terms set forth in this Agreement. The
Advisor accepts such appointment and agrees to render the services herein
described, for the compensation herein provided.
2. Subject to the supervision of the Board of Trustees of the Trust, the
Advisor shall manage the investment operations of the Fund and the composition
of the Fund's portfolio, including the purchase, retention and disposition
thereof, in accordance with the Fund's investment objectives, policies and
restrictions as stated in and limited by the statements contained in the various
documents filed with the U.S. Securities and Exchange Commission (the
"Commission") as such documents may from time to time be amended and subject to
the following understandings:
(a) The Advisor shall provide supervision of the Fund's investments
and determine from time to time what investments or securities, including
futures contracts, will be purchased, retained, sold or loaned by the Fund, and
what portion of the assets will be invested, hedged, or held uninvested as cash.
(b) The Advisor shall use its best judgment in the performance of its
duties under this Agreement.
(c) The Advisor, in the performance of its duties and obligations
under this Agreement, shall act in conformity with the Trust's Declaration of
Trust and Bylaws, and the Prospectus of the Fund and with the instructions and
directions of the Board of Trustees of the Trust, and will conform to and comply
with the requirements of the 1940 Act and all other applicable federal and state
laws and regulations.
(d) The Advisor shall determine the securities to be purchased or
sold by the Fund and will place orders pursuant to its determination with or
through such persons, brokers or dealers in conformity with the policy with
respect to brokerage as set forth in the Trust's Registration Statement and
Prospectus of the Fund or as the Board of Trustees may direct from time to time.
In providing the Fund with investment supervision, it is recognized that the
Advisor will give primary consideration to securing most favorable price and
efficient execution. Consistent with this policy, the Advisor may consider the
financial responsibility, research and investment information and other services
provided by brokers or dealers who may effect or be a party to any such
transaction or other transactions to which other clients of the Advisor may be a
party. It is understood that neither the Fund nor the Advisor has adopted a
formula for allocation of the Fund's investment transaction business. It is also
understood that it is desirable for the Fund that the Advisor have access to
supplemental investment and market research and security and economic analysis
provided by brokers who may execute brokerage transactions at a higher cost to
the Fund than may result when allocating brokerage to other brokers on the basis
of seeking the most favorable price and efficient execution. Therefore, the
Advisor is authorized to place orders for the purchase and sale of securities
for the Fund with such brokers, subject to review by the Trust's Board of
Trustees from time to time with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may be
useful to the Advisor in connection with its services to other clients.
On occasions when the Advisor deems the purchase or sale of a security to
be in the best interest of the Fund as well as other clients, the Advisor, to
the extent permitted by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities to be so sold or purchased in order
to obtain the most favorable price or lower brokerage commissions and efficient
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 Advisor in
the manner it considers to be the most equitable and consistent with its
fiduciary obligations to the Fund and to such other clients.
(e) The Advisor shall maintain all books and records with respect to
the Fund's securities transactions required by subparagraphs (b)(5), (6) and
(11) and paragraph (f) of Rule 31a-1 under the 1940 Act and shall render to the
Trust's Board of Trustees such periodic and special reports as the Board may
reasonably request.
(f) The Advisor shall provide the Fund's custodian and the Fund on
each business day with information relating to all transactions concerning the
Fund's assets.
(g) The investment management services provided by the Advisor
hereunder are not to be deemed exclusive, and the Advisor shall be free to
render similar services to others. While information and recommendations
supplied to the Fund shall, in the Advisor's judgment, be appropriate under the
circumstances and in light of investment objectives and policies of the Fund,
they may be different from the information and recommendations supplied to other
investment companies and customers. The Fund shall be entitled to equitable
treatment under the circumstances in receiving information, recommendations and
any other services, but the Fund shall not be entitled to receive preferential
treatment as compared with the treatment given to any other investment company
or customer.
(h) The Advisor shall perform such other services as are reasonably
incidental to the foregoing duties.
3. The Fund has delivered to the Advisor copies of each of the following
documents and will deliver to it all future amendments and supplements, if any:
(a) Declaration of Trust of the Trust, and any amendments thereto
filed with the Secretary of the Commonwealth of Massachusetts (herein called the
"Declaration of Trust");
(b) Bylaws of the Fund (such Bylaws, as in effect on the date hereof
and as amended from time to time, are herein called the "Bylaws");
(c) Certified resolutions of the Board of Trustees of the Trust
authorizing the appointment of the Advisor and approving the form of this
Agreement;
(d) Registration Statement under the 1940 Act and the Securities Act
of 1933, as amended, on Form N-1A (the "Registration Statement"), as filed with
the Commission relating to the Fund and shares of beneficial interest in the
Fund and all amendments thereto;
(e) Notification of Registration of the Trust under the 1940 Act on
Form N-8A as filed with the Commission and all amendments thereto; and
(f) Prospectus of the Fund (such Prospectus, as currently in effect
and as amended or supplemented from time to time, being herein called the
"Prospectus").
(g) Any other documents filed with the Commission. The Advisor shall
have no responsibility or liability for the accuracy or completeness of the
Trust's Registration Statement under the 1940 Act or the Securities Act of 1933
except for information supplied by the Advisor for inclusion therein. On behalf
of the Fund the Trust agrees to indemnify the Advisor to the full extent
permitted by the Trust's governing instruments.
4. The Advisor shall authorize and permit any of its directors, officers
and employees who may be elected as trustees or officers of the Trust to serve
in the capacities in which they are elected. Services to be furnished by the
Advisor under this Agreement may be furnished through the medium of any of such
directors, officers or employees.
5. The Advisor agrees that no officer or director of the Advisor, or of
any affiliate of the Advisor, will deal for or on behalf of the Fund with
himself as principal or agent, or with any corporation, partnership or other
person in which he may have a financial interest, except that this shall not
prohibit:
(a) Officers and directors of the Advisor or of any affiliate of the
Advisor, from having a financial interest in the Fund, in the Advisor or in any
affiliate of the Advisor.
(b) Officers and directors of the Advisor, or of any affiliate of the
Advisor, from providing services to the Fund of a type usually and customarily
provided to an investment company, pursuant to a written agreement approved by
the Board of Trustees of the Fund, including a majority of the disinterested
trustees of the Fund (as defined in the 1940 Act).
(c) The purchase of securities for the Fund, or the sale of
securities owned by the Fund, through a security broker or dealer, one or more
of whose partners, officers or directors is an officer or a director of the
Advisor, provided such transactions are handled in the capacity of broker only
and provided commissions charged do not exceed customary brokerage charges for
such services.
6. If any occasion should arise in which the Advisor or any of its
officers or directors advises persons concerning the shares of the Fund, the
Advisor or such officer or director will act solely on its, her or his own
behalf and not in any way on behalf of the Fund.
7. The Advisor agrees that, except as herein otherwise expressly provided,
neither it nor any of its officers or directors shall at any time during the
period of this Agreement make, accept or receive, directly or indirectly, any
fees, profits or emoluments of any character in connection with the purchase or
sale of securities (except securities issued by the Fund) or other assets by or
for the Fund.
8. The Advisor shall keep the Fund's books and records required to be
maintained by it pursuant to paragraph 2 hereof. The Advisor agrees that all
records which it maintains for the Fund are the property of the Fund and it will
surrender promptly to the Fund any of such records upon the Fund's request. The
Advisor further agrees to preserve for the periods prescribed by Rule 31a-2 of
the Commission under the 1940 Act any such records as are required to be
maintained by the Advisor pursuant to paragraph 2 hereof.
9. During the term of this Agreement, the Advisor will pay (i) the
salaries and expenses of all its personnel, and (ii) all expenses incurred by it
in the ordinary course of performing its duties hereunder, but not expenses
assumed by the Administrator of the Fund or the Fund pursuant to the
Administration Agreement. All costs and expenses not expressly assumed by the
Advisor under this Agreement shall be paid by the Administrator or the Fund,
including but not limited to: (i) interest and taxes, including but not limited
to all issue or transfer taxes chargeable to the Fund in connection with its
securities transactions; (ii) brokerage commissions; (iii) insurance premiums;
(iv) compensation and expenses of the Board of Trustees of the Fund; (v) legal
and audit expenses; (vi) fees and expenses of the Fund's Administrator,
custodian, distributor, transfer agent and accounting services agents; (vii)
expenses incident to the issuance of shares, including issuance on the payment
of, or reinvestment of, dividends; (viii) fees and expenses incident to the
registration under Federal or state securities laws of the Fund or its shares;
(ix) expenses of preparing, printing and mailing reports and notices and proxy
material to shareholders of the Fund; (x) all other expenses incidental to
holding meetings of the Trust's trustees and the Fund's shareholders and all
allocable communications expenses with respect to investor services and to
preparing, printing, and mailing prospectuses and reports to shareholders in the
amount necessary for distribution to the shareholders; (xi) dues or assessments
of or contributions to any trade association of which the Fund is a member;
(xii) such nonrecurring expenses as may arise, including litigation affecting
the Fund and the legal obligations which the Trust may have to indemnify its
officers and trustees with respect thereto; (xiii) all expenses which the Trust
agrees to bear in any distribution agreement or in any plan adopted by the Trust
on behalf of the Fund pursuant to Rule 12b-1 under the Act; and (xiv) all
corporate fees payable by the Fund to federal, state or other governmental
agencies.
10. For the services provided and the expenses assumed pursuant to this
Agreement, the Fund will pay to the Advisor as full compensation therefor a fee
at an annualized rate of 1% of the Fund's average daily net assets for the first
$100 million in assets and .75% of the assets exceeding that amount. This fee
will be computed daily as of the close of business and will be paid to the
Advisor monthly within ten (10) business days after the last day of each month
and such advisory fee shall be adjusted, if necessary, at the time of the
payment due in the last month in the fiscal year of the Fund. The Advisory Fee
shall be prorated for any fraction of a month at the commencement or termination
of this Agreement.
11. In the event the expenses of the Fund for any fiscal year (including
the fees payable to the Advisor and the Fund's administrator, but excluding
interest, taxes, brokerage commissions, distribution fees, amortization of
organization expenses and litigation and indemnification expenses and other
extraordinary expenses not incurred in the ordinary course of the Fund's
business) exceed the limit set by applicable regulation of state securities
commissions, if any, the compensation due to the Advisor hereunder will be
reduced by twenty percent (20%) of the amount of such excess. If for any month
such expenses exceed such limitation after giving effect to the above reduction
of the fees payable to the Advisor and the Fund's administrator, the payment to
the Advisor for that month will be reduced or postponed so that at no time will
there be any accrued but unpaid liability under this expense limitation. Any
such reductions or payments are subject to readjustment during the year, and the
Advisor's obligation hereunder will be limited to the amount of its fee paid or
accrued with respect to such fiscal year.
12. The Advisor shall give the Fund the benefit of its best judgment and
effort in rendering service hereunder, but the Advisor shall not be liable for
any loss sustained by reason of the purchase, sale or retention of any
securities or hedging instrument, whether or not such purchase, sale or
retention shall have been based upon its own investigation or upon investigation
and research made by any other individual, firm or corporation. The Advisor
shall not be liable for any error of judgment or mistake of law for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except a loss resulting from a breach of fiduciary duty with respect to
the receipt of compensation for services (in which case any award of damages
shall be limited to the period and the amount set forth in Section 36(b)(3) of
the 1940 Act) or a loss resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. Any person
employed by the Advisor, who may be or become an employee of and paid by any
other entity affiliated with the Fund, such as the administrator, distributor,
or custodian to the Fund, shall be deemed, when acting within the scope of his
employment by such other affiliated entity, to be acting in such employment
solely for such other affiliated entity and not as the Advisor's employee or
agent.
13. This Agreement shall continue in effect for a period of more than two
(2) years from the date hereof only so long as such continuance is specifically
approved at least annually in conformity with the requirements of the 1940 Act;
provided, however, that this Agreement may be terminated by the Fund at any
time, without the payment of any penalty, by the Board of Trustees of the Fund
or by vote of a majority of the outstanding voting securities (as defined in the
1940 Act) of the Fund, or by the Advisor at any time, without the payment of any
penalty, on not more than sixty (60) days' nor less than thirty (30) days,
written notice to the other party. This Agreement shall terminate automatically
in the event of its assignment (as defined in the 1940 Act).
14. Nothing in this Agreement shall limit or restrict the right of any of
the Advisor's directors, officers, or employees who may also be a trustee,
officer or employee of the Fund to engage in any other business or to devote his
time and attention in part to the management or other aspects of any business,
whether of a similar or a dissimilar nature, nor limit or restrict the Advisor's
right to engage in any other business or to render services of any kind to any
other corporation, firm, individual or association. Nothing in this Agreement
shall prevent the Advisor or any affiliated person (as defined in the 1940 Act)
of the Advisor from acting as investment advisor and/or principal underwriter
for any other person, firm or corporation and shall not in any way limit or
restrict the Advisor or any such affiliated person from buying, selling, or
trading any securities or hedging instruments for its or their own accounts or
for the account of others for whom it or they may be acting, provided, however,
that the Advisor expressly represents that it will undertake no activities
which, in its judgment, will adversely affect the performance of it obligations
to the Fund under the Agreement.
15. Neither this Agreement nor any transaction made pursuant hereto shall
be invalidated or in any way affected by the fact that trustees, officers,
agents and/or shareholders of the Fund are or may be interested in the Advisor,
or any successor or assignee thereof, as directors, officers, shareholders or
otherwise; that directors, officers, shareholders or agents of the Advisor are
or may be interested in the Fund as trustees, officers, shareholders or
otherwise; or that the Advisor or any successor or assignee, is or may be
interested in the Fund as shareholders or otherwise; provided, however, that
neither the Advisor nor any officer or director of the Advisor or of the Trust
shall sell to or buy from the Fund any property or security other than a
security issued by the Fund, except in accordance with an applicable order or
exemptive rule of the Commission.
16. Except as otherwise provided herein or authorized by the Board of
Trustees of the Trust from time to time, the Advisor shall for all purposes
herein be deemed to be an independent contractor and, except as expressly
provided or authorized in this Agreement, shall have no authority to act for or
represent the Fund in any way or otherwise be deemed an agent of the Fund. The
Fund and the Advisor are not partners or joint ventures with each other and
nothing herein shall be construed so as to make them such partners or joint
ventures or impose any liability as such on either of them.
17. During the term of this Agreement, the Trust agrees to furnish the
Advisor at its principal office with all prospectuses, proxy statements, reports
to stockholders, sales literature, or other material prepared for distribution
to stockholders of the Fund or the public, which refer to the Advisor in any
way, prior to use thereof and not to use such material if the Advisor reasonably
objects in writing within five (5) business days (or such other time as may be
mutually agreed) after receipt thereof. In the event of termination of this
Agreement, the Trust will continue to furnish to the Advisor copies of any of
the above-mentioned materials which refer in any way to the Advisor. The Trust
shall furnish or otherwise make available to the Advisor such other information
relating to the business affairs of the Trust or of the Fund as the Advisor at
any time, or from time to time, reasonably requests in order to discharge its
obligations hereunder. The Trust agrees that, in the event that the Advisor
ceases to be the Fund's investment advisor for any reason, the Fund will (unless
the Advisor otherwise agrees in writing) promptly take all necessary steps to
propose to the shareholders at the next regular meeting that the Fund change to
a name not including the word "Weston." The Trust agrees that the word "Weston"
in its name is derived from the name of the Advisor and is the property of the
Advisor for copyright and all other purposes and that therefore such word may be
freely used by the Advisor as to other investment activities or other investment
products.
18. This Agreement may be amended by mutual consent, but the consent of
the Fund must be obtained in conformity with the requirements of the 1940 Act.
19. This Agreement shall be subject to all applicable provisions of law,
including, without limitation, the applicable provisions of the 1940 Act.
20. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
21. Compensation to be paid to the Advisor hereunder shall be separate and
distinct from organizational expenses, if any, to be reimbursed to the Advisor.
22. Limitation of Liability. The Declaration of Trust dated February 1,
1990, as amended from time to time, establishing the Trust, which is hereby
referred to and a copy of which is on file with the Secretary of The
Commonwealth of Massachusetts, provides that the name Weston Portfolios means
the Trustees from time to time serving (as Trustees but not personally) under
Declaration of Trust. It is expressly acknowledged and agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
shareholders, Trustees, officers, employees or agents of the Trust, personally,
but shall bind only the trust property of the Trust, as provided in its
Declaration of Trust. The execution and delivery of this Agreement have been
authorized by the Trustees of the Trust and signed by the President of the
Trust, acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in its Declaration
of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
WESTON PORTFOLIOS
By:__________________________
President
[Corporate Seal] Attest:_________________________________________________
Secretary
WESTON FINANCIAL GROUP, INC.
By:__________________________
President
[Corporate Seal] Attest:_________________________________________________
Secretary