INVESTMENT ADVISORY AGREEMENT
Exhibit (d)(2)
Execution Copy
THIS INVESTMENT ADVISORY AGREEMENT (this “Agreement”) is made this 23rd day of March, 2009 between Xxxxxxxx Funds Trust,
a Delaware statutory trust (the “Trust”), on behalf of each of its investment series set forth on Schedule A hereto as it may be amended from time to time (hereinafter referred to each as a “Fund” and together as the “Funds”), and Xxxxxxxx Advisors, Inc., a California corporation (the
“Adviser”).
RECITALS
WHEREAS, the Trust is registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended (the “Act”), as an open-end management investment company; and
WHEREAS, the Trust desires to retain the Adviser, which is an investment adviser registered under the Investment Advisers Act of 1940, as amended, as the investment adviser to the Funds.
AGREEMENT
NOW, THEREFORE, the Trust and the Adviser do mutually promise and agree as follows:
1. Employment. The Trust hereby employs the Adviser to manage the investment and reinvestment of the assets of each Fund for the period and
on the terms set forth in this Agreement. The Adviser hereby accepts such employment for the compensation herein provided and agrees during such period to render the services and to assume the obligations herein set forth.
2. Authority of the Adviser. The Adviser shall supervise and manage the investment portfolio of each Fund, and, subject to such policies
as the trustees of the Trust may determine, direct the purchase and sale of investment securities in the day to day management of each Fund. The Adviser shall for all purposes herein be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Trust or any Fund in any way or otherwise be deemed an agent of the Trust or any Fund. However, one or more shareholders, officers, directors or employees of the
Adviser may serve as trustees and/or officers of the Trust, but without compensation or reimbursement of expenses for such services from the Trust. Nothing herein contained shall be deemed to require the Trust to take any action contrary to its Certificate of Trust or Trust Instrument, as each may be amended from time to time, or any applicable statute or regulation, or to relieve or deprive the trustees of the Trust of their responsibility for, and control of, the affairs of the Trust.
3. Expenses. The Adviser, at its own expense and without reimbursement from the Trust or any Fund, shall furnish office space, and all necessary
office facilities, equipment and executive personnel for managing the investments of each Fund. The Adviser shall not be required to pay any expenses of a Fund unless the total expenses borne by the Fund, including the Adviser’s fee but excluding all federal, state and local taxes, interest, brokerage commissions and other costs incurred in connection with the purchase and sale of securities and extraordinary items, in any year exceed that
percentage of the average net asset value of the Fund for such year, as determined by valuations made as of the close of each business day, which is the most restrictive percentage, if any, provided by the state laws of the various states in which the Fund’s shares are qualified for sale. The expenses of each Fund’s operations
borne by the Fund include by way of illustration and not limitation, trustees’ fee paid to those trustees who are not interested trustees under the Act; the costs of preparing and printing its registration statements required under the Securities Act of 1933, as amended, and the Act (and amendments thereto); the expense of registering its shares with the Securities and Exchange Commission and in the various states; the printing and distribution cost of prospectuses mailed to existing shareholders; the cost
of trustee and officer liability insurance, reports to shareholders, reports to government authorities and proxy statements; interest charges; taxes; legal expenses; salaries of administrative and clerical personnel; association membership dues; auditing and accounting services; insurance premiums; brokerage and other costs incurred in connection with the purchase and sale of securities; fees and expenses of the custodian of the Fund’s assets; shareholder servicing fees; expenses of calculating the net
asset value and repurchasing and redeeming shares; charges and expenses of dividend disbursing agents, registrars and stock transfer agents, fund administrators and fund accountants; and the cost of keeping all necessary shareholder records and accounts.
The Trust shall monitor each Fund’s expense ratio on a monthly basis. If the accrued amount of the expenses of the Fund exceeds the expense limitation established herein, if any, the Fund shall create an account receivable from the Adviser for the amount of such excess. In such a situation the monthly payment
of the Adviser’s fee will be reduced by the amount of such excess, subject to adjustment month by month during the balance of the Fund’s fiscal year if accrued expenses thereafter fall below the expense limitation.
4. Compensation of the Adviser. For the services and facilities to be rendered and the charges and expenses to be assumed by the Adviser
pursuant to the expense limitation hereunder, the Trust through each Fund shall pay to the Adviser an advisory fee, paid monthly, based on the average net assets of the Fund, as determined by valuations made as of the close of each business day of the month. The advisory fee payable by each Fund is set forth on Schedule A hereto. For any month in which this Agreement is not in effect for the entire month, such fee shall be reduced proportionately on the basis of the number of calendar days
during which it is in effect and the fee computed upon the average net assets of the business days during which it is so in effect.
5. Ownership of Shares of the Funds. The Adviser shall not take, and shall not permit any of its shareholders, officers, directors or employees
to take, a long or short position in the shares of a Fund, except for the purchase of shares of the Fund for investment purposes at the same price as that available to the public at the time of purchase.
6. Exclusivity. The services of the Adviser to the Trust hereunder are not to be deemed exclusive and the Adviser shall be free to furnish
similar services to others as long as the services hereunder are not impaired thereby. Although the Adviser has permitted and is permitting the Trust and one or more Funds to use the names “Xxxxxxxx” and “Cornerstone Growth,” it is understood and agreed that the Adviser reserves the right to use and to permit other persons, firms or corporations, including investment companies, to use such names, and that the Trust and the Funds will not use such names if the Adviser ceases
to be each Fund’s sole investment adviser. During the period that this Agreement is in effect, the Adviser shall be each Fund’s sole investment adviser.
7. Liability. In the absence of willful misfeasance, bad faith, gross negligence or reckless disregard of obligations or duties hereunder
on the part of the Adviser, the Adviser shall not be
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subject to liability to the Funds or to any shareholder of the Funds for any act or omission in the course of, or connected with, rendering services hereunder, or for any losses that may be sustained in the purchase, holding or sale of any security.
8. Indemnification. The Adviser agrees to indemnify each Fund with respect to any loss, liability, judgment, cost or penalty which the Fund
may directly or indirectly suffer or incur as a result of a material breach by the Adviser of its standard of care set forth in Paragraph 7. The Trust, on behalf of the Fund, agrees to indemnify the Adviser with respect to any loss, liability, judgment, cost or penalty which the Adviser may directly or indirectly suffer or incur in any way arising out of the performance of its duties under this Agreement, except to the extent that such loss, liability, judgment, cost or penalty was a result of a material
breach by the Adviser of its standard of care set forth in Paragraph 7.
9. Brokerage Commissions. The Adviser, subject to the control and direction of the trustees of the Trust, shall have authority and discretion
to select brokers and dealers to execute portfolio transactions for each Fund and for the selection of the markets on or in which the transactions will be executed. The Adviser may cause each Fund to pay a broker-dealer which provides brokerage and research services, as such services are defined in Section 28(e) of the Securities Exchange Act of 1934 (the “Exchange Act”), to the Adviser a commission for effecting a securities
transaction in excess of the amount another broker-dealer would have charged for effecting such transaction, if the Adviser determines in good faith that such amount of commission is reasonable in relation to the value of brokerage and research services provided by the executing broker-dealer viewed in terms of either that particular transaction or his overall responsibilities with respect to the accounts as to which he exercises investment discretion (as defined in Section 3(a)(35) of the Exchange Act). The
Adviser shall provide such reports as the trustees of the Trust may reasonably request with respect to each Fund’s total brokerage and the manner in which that brokerage was allocated.
10. Code of Ethics. The Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-1 under the Act and has
provided the Trust with a copy of the code of ethics and evidence of its adoption. Upon written request of the Trust, the Adviser shall permit the Trust to examine any reports required to be made by the Adviser pursuant to Rule 17j-1 under the Act.
11. Amendments. This Agreement may be amended by the mutual consent of the parties; provided, however, that in no event may it be amended
without the approval of the trustees of the Trust in the manner required by the Act, and, if required by the Act, by the vote of the majority of the outstanding voting securities of the Fund, as defined in the Act.
12. Termination. This Agreement may be terminated at any time with respect to a Fund, without the payment of any penalty, by the trustees
of the Trust or by a vote of the majority of the outstanding voting securities of that Fund, as defined in the Act, upon giving sixty (60) days’ written notice to the Adviser. This Agreement may be terminated by the Adviser at any time upon the giving of sixty (60) days’ written notice to the Trust. This Agreement shall terminate automatically in the event of its assignment (as defined in Section 2(a)(4) of the Act). Subject to prior termination as hereinbefore provided,
this Agreement shall continue in effect for two (2) years from the date hereof and indefinitely thereafter, but only so long as the continuance after such two (2) year period is specifically approved annually by (i) the trustees of the Trust or by the vote of the majority of the outstanding voting securities of each Fund, as defined in the Act, and (ii) the trustees of the Trust in the manner required by the Act, provided that any such approval may be made effective not more than sixty (60) days thereafter.
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13. Obligations of the Trust. The name “Xxxxxxxx Funds Trust” and references to the trustees of Xxxxxxxx Funds Trust refer respectively
to the Trust created and the trustees, as trustees but not individually or personally, acting from time to time under a Trust Instrument dated September 16, 1992 which is hereby referred to and a copy of which is on file at the principal office of the Trust. The obligations of Xxxxxxxx Funds Trust entered into in the name or on behalf thereof by any of the trustees, representatives or agents of the Trust are made not individually, but in such capacities, and are not binding upon any of the trustees,
shareholders, or representatives of the Trust personally, but bind only the Trust property, and all persons dealing with any class of shares of the Trust must look solely to the Trust property belonging to such class for the enforcement of any claims against the Trust.
(Signature page follows.)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day first above written.
XXXXXXXX ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
President and Chief Executive Officer
XXXXXXXX FUNDS TRUST
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Chairman of the Board
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Execution Copy
SCHEDULE A
(March 23, 2009)
|
Name of Fund |
Compensation
(as a % of average daily net assets) |
|
Xxxxxxxx Cornerstone Large Growth Fund |
0.74% |
