Exhibit 10.4
PURCHASE AGREEMENT BETWEEN EASTERN POINT ADVISORS, INC.
AND DIVIDEND GROWTH ADVISORS, LLC.
Eastern Point Advisors, Inc., a Massachusetts corporation (EPA), and Dividend
Growth Advisors, LLC, a South Carolina limited liability company (DGA), agree to
the following sale.
EPA agrees to sell to DGA, and DGA agrees to buy from EPA, the following
management contract:
Investment Advisory Agreement (the management contract) that Eastern Point
Advisors, Inc. currently maintains with the Eastern Point Advisors Funds Trust
(the Trust) dated September 23, 1999. (See Exhibit A). DGA's proposed new
investment advisory agreement was approved by shareholders at a Special Meeting
of Shareholders of the Trust on October 18, 2005 and will take effect the date
of this agreement. DGA will take over EPA's role as adviser to the Funds of the
Trust.
DGA agrees to honor the existing fund wholesaling agreements in place between
EPA/ICC and the broker dealers listed on Exhibit B.
Neither EPA nor DGA shall assume any of the liabilities or obligations of the
other that are not specifically detailed in this agreement. The purchase price
and additional consideration is reflected below and EPA agrees to assist in the
transfer of any ownership rights related to the management contract, if any, as
necessary
Attachment 1 - Page 1
This is the entire agreement between the parties. It replaces and supersedes any
and all oral agreements between the parties, as well as any prior writings. This
agreement binds and benefits the heirs, successors and assignees of the parties.
This agreement will be governed by and construed in accordance with the laws of
the state of Massachusetts.
All notices must be in writing. A notice may be delivered to a party at the
address that follows a party's signature or to a new address that a party
designates in writing. A notice may be delivered:
o in person
o by certified mail, or
o by overnight courier.
The parties may sign several identical counterparts of this agreement. Any fully
signed counterpart shall be treated as an original. This agreement may be
modified only by a writing signed by the party against whom such modification is
sought to be enforced.
If one party waives any term or provision of this agreement at any time, that
waiver will be effective only for the specific instance and specific purpose for
which the waiver was given. If either party fails to exercise or delays
exercising any of its rights or remedies under this agreement, that party
retains the right to enforce that term or provision at a later time.
If any court determines that any provision of this agreement is invalid or
unenforceable, any invalidity or unenforceability will affect only that
provision and will not make any other provision of this agreement invalid or
unenforceable and shall be modified, amended or limited only to the extent
necessary to render it valid and enforceable.
Attachment 1 - Page 2
SELLER
Eastern Point Advisors, Inc.,
a Massachusetts corporation
230 Broadway
Lynnfield, Massachusetts 01940
Dated: _________________________________________________________________________
By: _________________________________________________________________________
Timothy B. Murphy
President, Eastern Point Advisors, Inc.
BUYER
Dividend Growth Advisors, LLC,
a South Carolina limited liability company
108 Traders Cross
Suite 105
Bluffton, South Carolina 29910
Dated: _________________________________________________________________________
By: _________________________________________________________________________
C. Troy Shaver, Jr.
President, Dividend Growth Advisors, LLC
Attachment 1 - Page 3
EXHIBIT A
INVESTMENT ADVISORY AGREEMENT
This Investment Advisory Agreement made as of the 23rd day of September,
1999, by and between Investors Capital Funds, a Delaware business trust
(hereinafter called the "Trust"), on behalf of each series of the Trust listed
in Schedule A hereto, as such may be amended from time to time (hereinafter
referred to individually as a "Fund" and collectively as the "Funds") and
Eastern Point Advisors, Inc. a Massachusetts Corporation (hereinafter called the
"Advisor").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Advisor is registered as an investment advisor under the
Investment Advisors Act of 1940, as amended;
WHEREAS, the Trust desires to retain the Advisor to render investment
advisory services to the Funds pursuant to the terms and provisions of this
Agreement, and the Advisor is interested in furnishing said services;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Appointment. The Trust hereby appoints the Advisor to act as investment
advisor to the Funds for the period and on the terms and subject to the
conditions set forth in this Agreement. The Advisor accepts such appointment and
agrees to furnish the services herein set forth for the compensation herein
provided. Additional investment portfolios may from time to time be added to
those covered by this Agreement by the parties executing a new Schedule A that
shall become effective upon its execution and shall supersede any Schedule A
having an earlier date.
2. Investment Advisory Services: Subject to the supervision of the Trust's
Trustees (the "Trustees"), the Advisor shall provide a continuous investment
program for each of the Funds, including investment, research and management
with respect to all securities and investments and cash equivalents in the
Funds. The Advisor shall determine from time to time what securities and other
investments will be purchased, retained or sold by the Trust with respect to the
Funds. The Advisor shall provide the services under this Agreement in accordance
with each of the Fund's investment objectives, policies, and restrictions as
stated in such Fund's most current Prospectus and
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Statement of Additional Information, including all amendments or supplements
thereto, and in such resolutions of the Trustees as may be adopted from time to
time. The Advisor further agrees that it:
Attachment 1 - Page 4
(a) will use the same skill and care in providing such services as it uses
in providing services to ( any fiduciary accounts for which it has
investment responsibilities;
(b) will conform with all applicable rules and regulations of the U.S.
Securities and Exchange Commission (the "Commission") and, in
addition, will conduct its activities under this Agreement in
accordance with any applicable regulations of any governmental
authority pertaining to the investment advisory activities of the
Advisor;
(c) will place orders pursuant to its investment determinations for the
Funds either directly with the issuer or with any broker or dealer,
including the Advisor. In placing orders with brokers and dealers, the
Advisor will attempt to obtain and is hereby directed to obtain prompt
execution of orders in an effective manner at the most favorable
price. Consistent with this obligation, the Advisor may, in its
discretion, purchase and sell portfolio securities to and from brokers
and dealers who provide the Advisor with brokerage and research
services (within the meaning of Section 28(e) of the Securities
Exchange Act of 1934). Subject to the review of the Trustees from time
to time with respect to the extent and continuation of this policy,
the Advisor is authorized to pay a broker or dealer who provides such
brokerage and research services a commission for effecting a
securities transaction for any of the Funds which is in excess of the
amount of commission another broker or dealer would have charged for
effecting that transaction if, but only if, the Advisor determines in
good faith that such commission was reasonable in relation to the
value of the brokerage and research services provided by such broker
or dealer, viewed in terms of either that particular transaction or
the overall responsibilities of the Advisor with respect to the
accounts as to which it exercises investment discretion. On occasions
when the Advisor deems the purchase or sale of a security to be in the
best interest of one or more of the Funds as well as of other clients,
the Advisor, to the extent permitted by applicable laws and
regulations, may aggregate the securities to be so purchased or sold
in order to obtain the most favorable price or lower brokerage
commissions and the most efficient execution. In such event,
allocation of the securities so purchased or sold, as well as the
expenses incurred in
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the transaction, will be made by the Advisor in the manner it
considers to be the most equitable tnd consistent with its fiduciary
obligations to the Funds and to such other clients. In placing arders
with the Advisor for the Trust, the Advisor will comply with the
procedures adopted by ohe Trust pursuant to Rule 17e-1 under the 1940
Act. t
(d) will maintain, or cause the Custodian to maintain, all books and
records with respect to the ( securities transactions executed for the
Funds; and
(e) will furnish the Trust's Board of Trustees such periodic and special
reports with respect to ( each Fund's investment activities as the
Trustees may reasonably request; and
Attachment 1 - Page 5
(f) will advise and assist the officers of the Trust in taking such
actions as may be necessary or ( appropriate to carry out the
decisions of the Trustees and of the appropriate committees of the
Trustees regarding the conduct of the business of the Funds.
3. Expenses. During the term of this Agreement, the Advisor will pay all
expenses incurred by it in performing its services under this Agreement. The
Advisor shall not be liable for any expenses of the Trust, including without
limitation (a) its interest and taxes, (b) brokerage commissions and other costs
in connection with the purchase or sale of securities or other investment
instruments with respect to the Trust and (c) custodian fees and expenses.
4. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, each of the Funds will pay the Advisor and the
Advisor will accept as full compensation therefor a fee set forth on Schedule A
hereto. The obligation to pay the fee to the Advisor will begin as of the
respective dates of the initial sale of shares in the Funds, including any
shares sold or exchanged in connection with a merger, consolidation or
reorganization involving one or more of the Funds. Such fee shall be paid
monthly based upon each respective Fund's average daily net assets calculated in
the manner provided in the Prospectus and Statement of Additional Information
then in effect.
The fee shall be accrued daily by each Fund and paid to the Advisor within
five (5) business days after the end of each calendar month. If this Agreement
is terminated before the end of any month, the fee to the Advisor shall be
prorated for the portion of any month in which this Agreement is in effect and
shall be payable within ten (10) days after the date of termination.
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5. Limitation of Liability. The Advisor shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Funds in
connection with the performance of this Agreement, except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of the Advisor in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
6. Duration and Termination. This Agreement shall become effective at the
time the Trust's initial Registration Statement under the Securities Act of 1933
with respect to the shares of the Trust is declared effective by the Commission
and shall remain in effect for a period of two (2) years, unless sooner
terminated as hereinafter provided. This Agreement shall continue in effect
thereafter for successive one year periods so long as such continuation is
approved for each Fund at least annually by (i) the Board of Trustees of the
Trust or by the vote of a majority of the outstanding voting securities of each
Fund, and (ii) the vote of a majority of the disinterested Trustees, cast in
person at a meeting called for the purpose of voting on such approval.
Notwithstanding the foregoing, this Agreement may be terminated as to a
particular Fund at any time on sixty days' written notice, without the payment
of any penalty, by the Trust (by vote of the Trust's Board of Trustees or by
vote of a majority of the outstanding voting securities of such Fund) or by the
Advisor. This Agreement will automatically terminate in the event of its
assignment. Any notice under this Agreement shall be given in writing, addressed
and delivered or mailed to the other party at the principal office of such
party.
As used in this Agreement, the terms "majority of the outstanding voting
securities," "interested persons" and "assignment" shall have the same meanings
as ascribed to such terms in the 1940 Act.
7. Advisor's Representations. The Advisor hereby represents and warrants
that it is willing and possesses all requisite legal authority to provide the
services contemplated by this Agreement without violation of applicable laws and
regulations.
Attachment 1 - Page 6
8. 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 which enforcement of the change, waiver,
discharge or termination is sought.
9. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
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provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by the laws of the Commonwealth of Massachusetts.
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.
INVESTORS CAPITAL FUNDS
By: /S/ THEODORE E. CHARLES
-------------------------------------
Name: Theodore E. Charles
Title: President
EASTERN POINT ADVISORS, INC.
By: /S/ TIMOTHY B. MURPHY
-------------------------------------
Name: Timothy B. Murphy
Title: President
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Attachment 1 - Page 7
INVESTMENT ADVISORY AGREEMENT
between
EASTERN POINT ADVISORS FUNDS TRUST
and
EASTERN POINT ADVISORS, INC.
Name of Fund Compensation*
- ---------------- ------------------
Eastern Point Advisors Twenty Fund
1.50% of the average daily net
assets of the Fund
Rising Dividend Growth Fund
.75% of the average daily net
assets of the Fund
- ----------------
* all fees are computed and paid monthly
EASTERN POINT ADVISORS FUNDS TRUST
By: /S/ THEODORE E. CHARLES
------------------------------
Name: Theodore E. Charles
Title: Chairman/CEO
EASTERN POINT ADVISORS, INC.
By: /S/ TIMOTHY B. MURPHY
------------------------------
Name: Timothy B. Murphy
Title: President
A-6
Attachment 1 - Page 8
Exhibit B
This attachment is made by Dividend Growth Advisors, LLC, a South Carolina
limited liability company (Buyer), and Eastern Point Advisors, Inc., a
Massachusetts corporation (Seller).
Payment and Installment Schedule
DGA will pay Eastern Point Advisors affiliate, Investors Capital Corporation
(ICC), the full dealer reallowance on the sales charges for A shares of the
Trust's funds ICC sells.
DGA will pay ICC 10 basis points (.10%) on ICC raised assets at the time of sale
for a period of three years, commencing on the date of this agreement. This fee
will be paid on the last day of each quarter (every three months) with the
initial payment due on the last day of the quarter in which the attached
Purchase Agreement is signed.
DGA agrees to issue a promissory note to Eastern Point Advisors in the amount of
$747,617.00 The parties agree that the total amount of reimbursement recoverable
by EPA is the sum of all fees previously waived or remitted by EPA to a Fund
during any of the previous three years, less any reimbursement previously paid
by a Fund to EPA with respect to any waivers, reductions, and payments made with
respect to a Fund plus any other agreed to unreimbursed expenses.
Attachment 1 - Page 9
The parties agree to execute the promissory note immediately following the
execution of this agreement. The note is attached as Exhibit C. The pertinent
terms of the note provide for a sixty-month term of interest only payments due
on the last day of each quarter (every three months) at an annualized rate of
5.5% on the total outstanding principal. The full outstanding principal amount
will be paid by DGA in one balloon payment due in full on the last day of
October, 2010. There is no penalty for pre-payment of principal or interest.
DGA agrees to honor the existing fund wholesaling agreements in place between
EPA/ICC and the broker dealers listed below:
Investors Capital Corp.
Advisory Financial Consultants
American Portfolios
Ameritas
Atlantic Securities
Cadaret Grant
CBIZ Financial Solutions- Formerly BGS&G
Concord Equity
Buckman, Buckman &
Cambridge Investment Research
Capital Analysts
Capitol Securities
Clary Financial Planning Corporation
Commonwealth Securities
Compass Securities
Community Bank - only for mutual funds, Dividend Growth Advisors does SMA
Delta Equities
Eagle Equities
ePlanning Securities
Essex Securities
Fairport Capital
Financial Services of New England
Global Brokerage
House of Securities
H&R Block
HD Vest
Infinex
Investor Strategies
Jacques Financial
Attachment 1 - Page 10
Johnston, Lemon & Co.
Lombard Securities
Medallion Group
Mass Mutual - only for mutual funds, Dividend Growth Advisors does SMA
Maine Securities
Montauk Securities
Moors& Cabot
Mutual Service Corp
Newbridge Securities
Next Financial
Northeast Securities
Prime Capital
Princor
PSA Equities
Questar
Sammons Securities
Scott & Stringfellow
Sigma Securities
Spectrum Securities
Sterne Agee & Leach
Westminster Financial
WH Colson Securities
United Planners
Wall Street Financial
END OF EXHIBIT B
Attachment 1 - Page 11
EXHIBIT C
Promissory Note
1. Names
Borrower:
Dividend Growth Advisors, LLC, a South Carolina limited liability company
108 Traders Cross
Suite 105
Bluffton, South Carolina 29910
Lender:
Eastern Point Advisors, Inc., a Massachusetts corporation
230 Broadway
Lynnfield, Massachusetts 01940
2. Promise to Pay
For value received, Borrower promises to pay Lender or its successors or assigns
$747,617.00 and interest at the yearly rate of 5.5% on the unpaid balance as
specified below.
3. Interest Payments Borrower will pay interest as follows:
Quarterly, on the 15th day of January, April, July and October, beginning
January 15, 2006. The amount of each quarterly interest payment will be
$10,279.73, except that the initial payment due on January 15, 2006 is
$9,913.60, reflecting 88 days of interest at a daily rate $112.65.
4. Principal Payment
Borrower will pay the principal in full on or before October 31, 2010, together
with any accrued interest.
Attachment 1 - Page 12
5. Prepayment
Borrower may prepay all or any part of the principal at any time without
penalty.
6. Loan Acceleration
If Borrower is more than 60 days late in making any payment, Lender may declare
that the entire balance of unpaid principal is due immediately, together with
the interest that has accrued.
7. Security
Should the borrower fail to perform to the terms of this note it agrees to
assign its rights to its management contract with Eastern Point Advisors Funds
Trust (or its successors or assigns) back to Eastern Point Advisors Inc. (or its
successors or assigns), such assignment being subject to shareholder approval.
8. Collection Costs
If Lender prevails in a lawsuit to collect on this note, Borrower will pay
Lender's costs and lawyer's fees in an amount the court finds to be reasonable.
9. Entire Agreement
This is the entire agreement between the parties. It replaces and supersedes any
and all oral agreements between the parties, as well as any prior writings.
10. Successors and Assignees
This agreement binds and benefits the heirs, successors and assignees of the
parties.
11. Notices
All notices must be in writing. A notice may be delivered to a party at the
address that follows a party's signature or to a new address that a party
designates in writing. A notice may be delivered:
o in person
o by certified mail, or
o by overnight courier.
Attachment 1 - Page 13
12. Governing Law
This agreement will be governed by and construed in accordance with the laws of
the state of Massachusetts.
13. Modification
This agreement may be modified only by a writing signed by the party against
whom such modification is sought to be enforced.
14. Waiver
If one party waives any term or provision of this agreement at any time, that
waiver will be effective only for the specific instance and specific purpose for
which the waiver was given. If either party fails to exercise or delays
exercising any of its rights or remedies under this agreement, that party
retains the right to enforce that term or provision at a later time.
15. Severability
If any court determines that any provision of this agreement is invalid or
unenforceable, any invalidity or unenforceability will affect only that
provision and will not make any other provision of this agreement invalid or
unenforceable and such provision shall be modified, amended or limited only to
the extent necessary to render it valid and enforceable.
16. Disputes
If a dispute arises, the parties will try in good faith to settle it through
mediation conducted by a mediator to be mutually selected. The parties will
share the costs of the mediator equally. Each party will cooperate fully and
fairly with the mediator and will attempt to reach a mutually satisfactory
compromise to the dispute. If the dispute is not resolved within 30 days after
it is referred to the mediator, it will be arbitrated by an arbitrator to be
mutually selected. Judgment on the arbitration award may be entered in any court
that has jurisdiction over the matter. Costs of arbitration, including lawyers'
fees, will be allocated by the arbitrator.
Attachment 1 - Page 14
BORROWER
Dividend Growth Advisors, LLC,
a South Carolina limited liability company
108 Traders Cross
Suite 105
Bluffton, South Carolina 29910
Dated: October 24, 2005
__________________________________________________________________________
By: /s/ C. Troy Shaver, Jr.
__________________________________________________________________________
C. Troy Shaver, Jr.
President, Dividend Growth Advisors, LLC
Attachment 1 - Page 15