ITEM 77 Q (1)(e)
INVESTMENT ADVISORY CONTRACT
This Contract is made this 1st day of June 2003,
between Xxxxx Investment Advisers, Inc., a wholly-owned,
indirect subsidiary of Xxxxx National Corporation and a
registered investment adviser, having its principal place
of business in Richmond, Virginia, (the "Adviser"),
and Xxxxx Funds, a Massachusetts business trust having
its principal place of business in Pittsburgh, Pennsylvania (the
"Trust").
WHEREAS the Trust is an open-end management
investment company as that term is defined in
the Investment Company Act of 1940, as amended,
and is registered as such with the Securities and
Exchange Commission; and
WHEREAS Adviser is engaged in the business
of rendering investment advisory and management
services.
NOW, THEREFORE, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. The Trust hereby appoints Adviser as
Investment Adviser for each of the portfolios
("Funds") of the Trust which executes an exhibit to
this Contract, and Adviser accepts the appointments.
Subject to the direction of the Trustees, Adviser
shall provide investment research and supervision of the
investments of the Funds and conduct a continuous program
of investment evaluation and of appropriate
sale or other disposition and reinvestment of
each Fund's assets.
2. Adviser, in its supervision of the
investments of each of the Funds will be guided by each
of the Fund's investment objective and policies and the
provisions and restrictions contained in the and By-
Laws of the Trust and as set forth in the Registration
Statements and exhibits as may be on file with the
Securities and Exchange Commission.
3. Each Fund shall pay or cause to be paid
all of its own expenses and its allocable share of
Trust expenses, including, without limitation, the
expenses of organizing the Trust and continuing its
existence; fees and expenses of Trustees and officers
of the Trust; fees for investment advisory services and
administrative personnel and services; expenses incurred
in the distribution of its shares ("Shares"),
including expenses of administrative support services;
fees and expenses of preparing and printing its
Registration Statements under the Securities Act of 1933
and the Investment Company Act of 1940, as
amended, and any amendments thereto; expenses of registering
and qualifying the Trust, the Funds, and Shares of the Funds
under federal and state laws and regulations; expenses of
preparing, printing, and distributing prospectuses
(and any amendments thereto) to shareholders; interest
expense, taxes, fees, and commissions of every kind;
expenses of issue (including cost of Share certificates),
purchase, repurchase, and redemption of Shares, including
expenses attributable to a program of periodic issue;
charges and expenses of custodians, transfer agents, dividend
disbursing agents, shareholder servicing agents, and
registrars; printing and mailing costs, auditing, accounting,
and legal expenses; reports to shareholders and governmental
officers and commissions; expenses of meetings
of Trustees and shareholders and proxy solicitations therefore;
insurance expenses; association membership dues and such
nonrecurring items as may arise, including all losses and
liabilities incurred in administering the Trust and the Funds.
Each Fund will also pay its allocable share of such extraordinary
expenses as may arise including expenses incurred in
connection with litigation, proceedings, and claims and the
legal obligations of the Trust to indemnify its
officers and Trustees and agents with respect thereto.
4. Each of the Funds shall pay to Adviser,
for all services rendered to each Fund by Adviser
hereunder, the fees set forth in the exhibits attached hereto.
5. The net asset value of each Fund's Shares
as used herein will be calculated to the nearest
1/10th of one cent.
6. The Adviser may from time to time and for
such periods as it deems appropriate reduce its compensation
(and, if appropriate, assume expenses of one or more of the Funds)
to the extent that any Fund's expenses exceed such lower
expense limitation as the Adviser may, by notice to the Fund,
voluntarily declare to be effective.
7. This Contract shall begin for each Fund as
of the date of execution of the applicable exhibit and shall
continue in effect with respect to each Fund presently set
forth on an exhibit (and any subsequent Funds added pursuant
to an exhibit during the initial term of this Contract) for
two years from the date of this Contract set forth above
and thereafter for successive periods of one year, subject
to the provisions for termination and all of the other terms
and conditions hereof if: (a) such continuation shall be
specifically approved at least annually by the vote of a
majority of the Trustees of the Trust, including a
majority of the Trustees who are not parties to this
Contract or interested persons of any such party cast in
person at a meeting called for that purpose; and (b) Adviser
shall not have notified a Fund in writing at
least sixty (60) days prior to the anniversary date of
this Contract in any year thereafter that it does not
desire such continuation with respect to that Fund. If a
Fund is added after the first approval by the Trustees
as described above, this Contract will be effective as
to that Fund upon execution of the applicable exhibit
and will continue in effect until the next annual approval
of this Contract by the Trustees and thereafter for
successive periods of one year, subject to approval
as described above.
8. Notwithstanding any provision in this
Contract, it may be terminated at any time with
respect to any Fund, without the payment of any penalty,
by the Trustees of the Trust or by a vote of the
shareholders of that Fund on sixty (60) days'
written notice to Adviser.
9. This Contract may not be assigned by Adviser
and shall automatically terminate in the event of any assignment.
Adviser may employ or contract with such other person, persons,
corporation, or corporations at its own cost and expense as it
shall determine in order to assist it in carrying out this
Contract.
10. In the absence of willful misfeasance, bad
faith, gross negligence, or reckless disregard of the obligations or
duties under this Contract on the part of Adviser, Adviser shall not
be liable to the Trust or to any of the Funds or to any shareholder
for any act or omission in the course of or connected in any
way with rendering services or for any losses that may be sustained
in the purchase, holding, or sale of any
security.
11. This Contract may be amended at any time by
agreement of the parties provided that the amendment shall be
approved both by the vote of a majority of the Trustees of the
Trust including a majority of the Trustees who are not parties
to this Contract or interested persons of any such party to this
Contract (other than as Trustees of the Trust) cast in person at
a meeting called for that purpose, and, where
required by Section 15(a)(2) of the Act, on behalf of a Fund by
a majority of the outstanding voting
securities of such Fund as defined in Section 2(a)(42) of the Act.
12. The Adviser acknowledges that all sales literature
for investment companies (such as the Trust) are subject to strict
regulatory oversight. The Adviser agrees to submit any proposed
sales literature for the Trust (or any Fund) or for itself or
its affiliates which mentions the Trust (or any Fund) to the
Trust's distributor for review and filing with the appropriate
regulatory authorities prior to the public release of any
such sales literature, provided, however, that nothing herein
shall be construed so as to create any obligation or duty on
the part of the Adviser to produce sales literature for the
Trust (or any Fund). The Trust agrees to cause its distributor
to promptly review all such sales literature to ensure
compliance with relevant requirements, to promptly advise
Adviser of any deficiencies contained in such sales literature, to
promptly file complying sales literature with the relevant
authorities, and to cause such sales literature to be
distributed to prospective investors in the Trust.
13. The execution and delivery of this Contract
have been authorized by the Trustees of the Trust and signed
by an authorized officer 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, and the obligations of this Contract are not
binding upon any of the Trustees or shareholders of the Trust,
but bind only the appropriate property of the Fund, as provided
in the Declaration of Trust.
14. The parties hereto acknowledge that Xxxxx
National Corporation has reserved the right to
grant the non-exclusive use of the name Xxxxx Funds or any
derivative thereof to any other investment
company, investment company portfolio, investment adviser,
distributor or other business enterprise, and to
withdraw from the Trust and one or more of the Funds the
use of the name Xxxxx Funds. The name Xxxxx
Funds will continue to be used by the Trust and each Fund
so long as such use is mutually agreeable to
Xxxxx National Corporation and the Trust.
15. Adviser agrees to maintain the security
and confidentiality of nonpublic personal
information ("NPI") of Fund customers and consumers,
as those terms are defined in Xxxxxxxxxx X-X, 00
XXX Part 248. Adviser agrees to use and redisclose
such NPI for the limited purposes of processing and
servicing transaction; for specific law enforcement
and miscellaneous purposes; and to service providers or
in connection with joint marketing arrangements directed
by the Fund(s), in each instance in furtherance of
fulfilling Adviser's obligations under this Contract
and consistent with the exceptions provided in 17 CFR
Sections 248.14, 248.15 and 148.13, respectively.
16. This Contract shall be construed in
accordance with and governed by the laws of the
Commonwealth of Pennsylvania.
17. This Contract will become binding
on the parties hereto upon their execution of the
attached exhibits to this Contract.
