ADVISORY AND SERVICE CONTRACT BETWEEN
XXXXXXX INVESTMENTS
AND
XXXXXX MANAGEMENT CORPORATION
THIS AGREEMENT entered into the 23rd day of September, 1993 by and
between XXXXXXX INVESTMENTS, (hereinafter referred to as "the Fund") and
XXXXXX MANAGEMENT CORPORATION, a Michigan corporation, (hereinafter referred
to as "the Adviser").
WHEREAS, the Fund has been organized to operate as an open-end
management investment company registered under the Investment Company Act
of 1940, as amended, (the "1940 Act"); and
WHEREAS, the shares of beneficial interest of the Fund may be divided
into separate series, the first of which is the Xxxxxxx Utility Fund (along
with any series which may in the future be established, a "Series"); and
WHEREAS, the Fund desires to avail itself of the services,
information, advice, assistance and facilities of an investment adviser and
to have an investment adviser perform for it various investment advisory and
research services and other management services; and
WHEREAS, the Adviser has been organized to operate as an investment
adviser registered under the Investment Advisers Act of 1940, as amended,
and desires to provide investment advisory services to the Fund;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, it is agreed as follows:
1. Employment of the Adviser. The Fund hereby engages the Adviser
to manage the investment and reinvestment of the assets of the Series for
the period and on the terms hereinafter set forth. The Adviser hereby
accepts such engagement and agrees during such period to render services and
to assume obligations herein set forth for the compensation herein provided.
The Fund and the Adviser agree that, with respect to a particular Series of
the Fund, they may negotiate and execute a separate agreement. Absent such
a separate agreement relating to a particular Series, the terms and
conditions of this Agreement shall apply to all Series of the Fund. The
Adviser shall, for all purposes herein, be deemed to be an independent
contractor and shall, except as expressly provided or authorized (whether
herein or otherwise), have no authority to act for or represent the Fund in
any way or otherwise be deemed an agent of the Fund.
2. Duties of Adviser. In providing the services set forth herein,
the Adviser undertakes to afford to the Fund the advice and assistance of
the Adviser's organization in the choice of investments and to furnish for
the use of the Fund office space and all necessary office facilities,
equipment and personnel for servicing the investments of the Fund and
maintaining its organization, and to pay all promotional expenses, salaries
and fees of all officers and directors who are interested persons of the
Fund and for all clerical services relating to research, statistical and
investment work. The investment policies and all other actions of the Fund
are and shall at all times be subject to the control and direction of its
Board of Trustees. The Adviser may, at its expense, employ one or more
subadvisers. References herein to the Adviser shall include any subadviser
employed by the Adviser. The Adviser is authorized to select the brokers
or dealers that will execute the purchases and sales of securities of each
Series. In making such selections, the Adviser is authorized to consider
such factors as it deems relevant, including the breadth of the market in
the security, the price of the security, the financial condition and
exceution ability of the broker or dealer, and the reasonableness of the
commissions both for the specific transaction and on a continuing basis.
The commission paid to such broker or dealer may be higher than that which
might be charged by another broker or dealer for effecting the same
transaction if a good faith determination is made by the Adviser that such
commissions are reasonable in relation to the value of the brokerage and
research services provided, viewed in terms of either that particular
transaction or the overall responsibilities of the Adviser as to the
accounts as to which it exercises investment discretion. In making such
determination, the Adviser need not place or attempt to place a specific
dollar value on such services or on the portion of the commission reflecting
such services.
3. Permissible Interests. Subject to and in accordance with the
Declaration of Trust of the Fund and the Articles of Incorporation of the
Adviser, trustees, officers, and shareholders of the Fund are, or may be or
become interested in the Adviser as directors, officers or otherwise and
directors, officers and shareholders or otherwise of the Adviser are or may
be or become interested in the Fund as trustees, officers, shareholders or
otherwise, and the Adviser may be or become interested in the Fund as
shareholder or otherwise; and the effect of any such interrelationships
shall be governed by said Declaration of Trust or Articles of Incorporation,
as the case may be, and the Investment Company Act of 1940 (the "1940 Act").
4. Compensation of the Adviser. For the services and facilities
to be furnished during any fiscal month by the Adviser hereunder, the Fund
shall pay the Adviser as an advisory and service fee as soon as practicable
after the last day of each month beginning with the month ending September
30, 1993, an amount equal to 1/12th of the sum of (i) 7/10ths of 1% of the
average daily net assets of the Fund during the applicable month not in
excess of $50,000,000; (ii) 6/10ths of 1% of the average daily net assets
of the Fund during the applicable month in excess of $50,000,000 but not in
excess of $200,000,000 and (iii) 5/10ths of 1% of the average daily net
sales of the Fund during the applicable month in excess of $200,000,000.
The Adviser shall reimburse the Fund for any excess of annual
operating and management expenses, exclusive of taxes and interest but
including the Adviser's compensation, that exceed the most stringent
limitation imposed by a state regulatory agency.
5. Compensation Upon Termination. In case of termination of the
Agreement during any month, the fee for themonth 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 daily net asset value on
the business days during which it is so in effect.
It is understood that the Fund will pay all its expenses other than
those expressly stated to be payable by the Adviser hereunder, which
expenses payable by the Fund shall include, without limitation, interest
charges, taxes, fees of trustees who are not interested persons of the Fund,
other fees and commission of every kind, expenses of issue, sale,
repurchase, or redemption of shares, expenses of registering or qualifying
shares for sale, charges of custodians (including sums as custodian and for
keeping books and similar services to the Fund), transfer agents (including
the printing and mailing of reports and notices to shareholders),
registrars, auditing and legal services, and other expenses not expressly
assumed by the Adviser under paragraph 2 hereof.
6. Status of Adviser. The services of the Adviser to the Fund are
not to be deemed to be exclusive, the Adviser being free to render services
to others and engage in other activities.
7. Limitation of Liability of Adviser.
(a) In the absence of (i) willful misfeasance, bad faith, gross
negligence, (ii) reckless disregard of obligations and duties hereunder on
the part of the Adviser, or (iii) a loss resulting from a breach of a
fiduciary duty with respect to the receipt of compensation for services (in
which case any award for damages shall be limited to period and amount set
forth in Section 36(b)(3) of the 1940 Act), the Adviser shall not be subject
to liability whatsoever to the Fund or to any shareholder of the Fund for
any error or judgment, mistake of law or any other act or omission in the
course of, or connected with, rendering services hereunder including without
limitation, for any losses that may be sustained in connection with the
purchase, holding, redemption or sale of any security on behalf of the Fund.
(b) It is agreed that the Adviser shall have no responsibility or
liability for the accuracy or completeness of the Fund's Registration
Statements under the 1940 Act or the Securities Act of 1933, except for
information supplied by the Adviser for inclusion therein.
8. Limitation of Fund's Liability. The Adviser acknowledges that
it has received notice of and accepts the limitations upon the Fund's
liability set forth in its Declaration of Trust. The Adviser agrees that
the Fund's obligations hereunder in any case shall be limited to the Fund
and its assets and that the Adviser shall not seek satisfaction of any
obligation from the shareholders of a Series nor from any Trustee, officer,
employee or agent of the Fund.
9. Purchase of Securities. The Adviser agrees that neither it nor
any of its officers or directors will take a long or short position in the
securities issued by the Fund except that it or they may purchase from the
Fund, or from a principal underwriter of the Fund, shares issued by the Fund
at the offering price in effect at the moment of such purchase.
10. Force Majeure. The Adviser shall not be liable for delays or
errors occurring by reason of circumstances beyond its control including,
but not limited to, acts of civil or military authority, national
emergencies, work stoppages, fire, flood, catastrophe, acts of God,
insurrection, war, riot or failure of communication or power supply. In the
event of equipment breakdowns beyond its control, the Adviser shall take
reasonable steps to minimize service interruptions but shall have no
liability with respect thereto.
11. Renewal, Termination and Amendment. This Agreement shall
continue in effect, unless sooner terminated as hereinafter provided, for
a period of two years from the date hereof, and indefinitely thereafter,
with respect to each of the Series, if its continuance after such two-year
period shall be specifically approved at least annually by vote of the
holders of a majority of the outstanding voting securities of the
appropriate Series or by the vote of a majority of the Fund's Trustees; and
further provided that such continuance is also approved annually by the vote
of a majority of the Trustees who are not parties to this Agreement or
interested persons of the Adviser., cast in person at a meeting called for
the purpose of voting on such approval. Except for the first two-year
period, if such approval is not obtained, this Agreement shall terminate on
the date which is 15 months from the date of the last such approval. Either
party hereto may, at any time on 60 days' prior written notice to the other,
terminate this Agreement, without the payment of any penalty, by action of
its Board of Trustees or Board of Directors, as the case may be, or by the
vote of a majority of its outstanding voting securities. This agreement
shall terminate automatically in the event of its assignment. This
Agreement may be amended at any time by the parties hereto, subject to
approval by the Fund's Board of Trustees and, if required by applicable SEC
rules and regulations, a vote of the majority of the outstanding voting
securities of any Series affected by such change.
12. Use of Name. The Fund acknowledges that the Adviser owns all
rights to the use of the name "Xxxxxxx". The Adviser hereby grants to the
Fund the right to use the name "Xxxxxxx" as part of its name, reserving,
however, the right, without compensation to the Fund, to:
a. require the Fund to change its name within 120 days
following termination of this contract,
x. xxxxx the use of the name "Xxxxxxx" as part of its name
to any other investment company.
13. Severability. If any provisions 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.
14. Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of Missouri, provided however, that nothing
herein shall be construed as being inconsistent with the 1940 Act.
15. Counterparts. This Agreement may be executed in one or mroe
counterparts, each of which shall be deemed to be an original.
16. Definitions. The terms "vote of a majority of the outstanding
voting securities", "assigned" and "interested persons", when used herein,
shall have the respective meanings specified in the 1940 Act as now in
effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed in their behalf by their respective officers thereunto duly
authorized, and their respective seals to be hereunto affixed, all as of the
date first above written.
XXXXXXX INVESTMENTS,
a Massachusetts business trust
By: /S/ XXXX X. XXXXXX
Xxxx X. Xxxxxx, President
XXXXXX MANAGEMENT CORPORATION,
a Michigan corporation
By: /S/ XXXX X. XXXXXXXX
Xxxx X. Xxxxxxxx, Chairman
