INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT made as of the 26th day of June, 2008
by and between Xxxxxx Xxxxxxx Series Funds, on behalf of Xxxxxx Xxxxxxx
Alternative Opportunities Fund, a series of a Massachusetts business trust (the
"Fund"), and Xxxxxx Xxxxxxx Investment Advisors Inc., a Delaware corporation
(hereinafter called the "Investment Manager"):
WHEREAS, the Fund will engage in business as an open-end management
investment company, and is registered as such under the Investment Company Act
of 1940, as amended (the "Act"); and
WHEREAS, the Investment Manager is registered as an investment adviser
under the Investment Advisors Act of 1940, as amended, and engages in the
business of acting as investment adviser; and
WHEREAS, the Fund desires to retain the Investment Manager to render
management and investment advisory services in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, the Investment Manager desires to be retained to perform said
services on said terms and conditions.
W I T N E S S E T H
In consideration of the mutual covenants and agreements of the parties
hereto as hereinafter contained, the Fund and the Investment Manager agree as
follows:
1. The Fund hereby retains the Investment Manager to act as investment
manager of the Fund and, subject to the supervision of the Trustees, to
supervise the investment activities of the Fund as hereinafter set forth.
Without limiting the generality of the foregoing, the Investment Manager shall
administer the Fund's business affairs and supervise the overall day-to-day
operations of the Fund; obtain and evaluate such information and advice relating
to the economy, securities, securities markets and commodities markets as it
deems necessary or useful to discharge its duties hereunder; continuously manage
the assets of the Fund in a manner consistent with the Fund's investment
objective and policies; determine the securities to be purchased, sold or
otherwise disposed of by the Fund and the timing of such purchases, sales and
dispositions; take such further action, including the placing of purchase and
sale orders on behalf of the Fund, as the Investment Manager shall deem
necessary or appropriate; provide the Fund with full administrative services,
including the maintenance of certain books and records, such as journals, ledger
accounts and other records required under the Act, the notification to the Fund
of available funds for investment, the reconciliation of account information and
balances among the Fund's custodian, transfer agent and dividend disbursing
agent and the Fund, and the calculation of the net asset value of the Fund's
shares; provide the Fund with the services of persons competent to perform such
supervisory, administrative and clerical functions as are necessary to provide
effective operation of the Fund; oversee the performance of administrative and
professional services rendered to the Fund by others, including its custodian,
transfer agent and dividend disbursing agent, as well as accounting, auditing
and other services, including: (1) maintenance of the books and records and
accounting controls for the Fund's assets, including records of all securities
transactions; (2) daily calculation of the net asset value for the Fund; (3)
accounting for dividends and interest received and distributions made by the
Fund; (4) preparation and filing of the Fund's U.S. tax returns and annual and
semi-annual reports; (5) the production of transaction data, financial reports
and such other periodic and special reports as the Board of Trustees of the Fund
may reasonably request; (6) the preparation of financial statements for the
annual and semi-annual reports and other shareholder communications; (7) liaison
with the Fund's independent registered public accounting firms; (8) monitoring
and administration of arrangements with the Fund's custodian and depository
banks; and (9) maintenance of (but not the payment for) the fidelity bond
required to be maintained under the Act and preparation of the filings required
in connection therewith; provide the Fund with adequate general office space and
facilities; assist in the preparation and the printing of the periodic updating
of the Fund's registration statement, prospectus and statement of additional
information, tax returns, proxy statements, and reports to its shareholders and
the Securities and Exchange Commission; and monitor the compliance of the Fund's
investment policies and restrictions. The Investment Manager shall also furnish
to or place at the disposal of the Fund the information, evaluations, analyses
and opinions formulated or obtained by the Investment Manager in the discharge
of its duties as the Fund may, from time to time, reasonably request.
2. The Investment Manager may, subject to the approval of the Board of
Trustees, at its own expense, enter into sub-advisory agreements with one or
more sub-advisers to make determinations as to certain or all of the securities
and commodities to be purchased, sold or otherwise disposed of by the Fund and
the timing of such purchases, sales and dispositions and to take such further
action, including the placing of purchase and sale orders on behalf of the Fund
as the sub-adviser(s), in consultation with the Investment Manager, shall deem
necessary or appropriate; provided that the Investment Manager shall be
responsible for monitoring compliance by such sub-adviser(s) with the investment
policies and restrictions of the Fund and with such other limitations or
directions as the Trustees of the Fund may from time to time prescribe.
3. The Investment Manager shall, at its own expense, maintain such
staff and employ or retain such personnel and consult with such other persons as
it shall from time to time determine to be necessary or useful to the
performance of its obligations under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Investment Manager
shall be deemed to include persons employed or otherwise retained by the
Investment Manager to furnish statistical and other factual data, advice
regarding economic factors and trends, information with respect to technical and
scientific developments, and such other information, advice and assistance as
the Investment Manager may desire. The Investment Manager shall, as agent for
the Fund, maintain the Fund's records and books of account (other than those
maintained by the Fund's transfer agent, registrar, custodian and other agents).
All such books and records so maintained shall be the property of the Fund and,
upon request therefor, the Investment Manager shall surrender to the Fund such
books and records so requested.
4. The Fund will, from time to time, furnish or otherwise make
available to the Investment Manager such financial reports, proxy statements and
other information relating to the business and affairs of the Fund as the
Investment Manager may reasonably require in order to discharge its duties and
obligations hereunder.
5. The Investment Manager shall bear the cost of rendering the
management and investment advisory and supervisory services to be performed by
it under this Agreement, and shall, at its own expense, pay the compensation of
the officers and employees, if any, of the Fund who are also directors, officers
or employees of the Investment Manager, and provide such office space and
equipment and such clerical and bookkeeping services as the Fund shall
reasonably require in the conduct of its business. The Investment Manager shall
also bear the cost of telephone service, heat, light, power and other utilities
provided to the Fund.
6. The Fund assumes and shall pay or cause to be paid all other
expenses of the Fund, including without limitation: the charges and expenses of
any registrar, any custodian or depository appointed by the Fund for the
safekeeping of its cash, portfolio securities and commodities and other
property, and any stock transfer or dividend agent or agents appointed by the
Fund; brokers' commissions chargeable to the Fund in connection with portfolio
securities transactions to which the Fund is a party; all taxes, including
securities and commodities issuance and transfer taxes, and fees payable by the
Fund to Federal, State or other governmental agencies; the cost and expense of
engraving or printing share
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certificates representing shares of the Fund; all costs and expenses in
connection with the registration and maintenance of registration of the Fund and
its shares with the Securities and Exchange Commission and various states and
other jurisdictions (including filing fees and legal fees and disbursements of
counsel); the cost and expense of printing (including typesetting) and
distributing prospectuses of the Fund and supplements thereto to the Fund's
shareholders; all expenses of shareholders' and Trustees' meetings and of
preparing, printing and mailing proxy statements and reports to shareholders;
fees and travel expenses of Trustees or members of any advisory board or
committee who are not employees of the Investment Manager or any corporate
affiliate of the Investment Manager; all expenses incident to the payment of any
dividend, distribution, withdrawal or redemption, whether in shares or in cash;
charges and expenses of any outside pricing service used for pricing of the
Fund's shares; charges and expenses of legal counsel, including counsel to the
Trustees of the Fund who are not interested persons (as defined in the Act) of
the Fund or the Investment Manager, and of independent accountants in connection
with any matter relating to the Fund; membership dues of the Investment Company
Institute; interest payable on Fund borrowings; postage; insurance premiums on
property or personnel (including officers and Trustees) of the Fund which inure
to its benefit; extraordinary expenses (including but not limited to legal
claims and liabilities and litigation costs and any indemnification related
thereto); and all other charges and costs of the Fund's operation unless
explicitly provided herein.
7. For the services to be rendered, the facilities furnished, and the
expenses assumed by the Investment Manager, the Fund shall pay to the Investment
Manager monthly compensation determined by applying an annual rate of 0.20% to
the Fund's daily net assets. Except as hereinafter set forth, compensation under
this Agreement shall be calculated and accrued daily and the amounts of the
daily accruals shall be paid monthly. Such calculations shall be made by
applying 1/365ths of the annual rate to the Fund's net assets each day
determined as of the close of business on that day or the last previous business
day.
If this Agreement becomes effective subsequent to the first day of a
month or shall terminate before the last day of a month, compensation for that
part of the month this Agreement is in effect shall be prorated. Payment of the
Investment Manager's compensation for the preceding month shall be made as
promptly as possible.
8. The Investment Manager will use its best efforts in the supervision
and management of the investment activities of the Fund, but in the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of its
obligations hereunder, the Investment Manager shall not be liable to the Fund or
any of its investors for any error of judgment or mistake of law or for any act
or omission by the Investment Manager or for any losses sustained by the Fund or
its investors.
9. Nothing contained in this Agreement shall prevent the Investment
Manager or any affiliated person of the Investment Manager from acting as
investment adviser or manager for any other person, firm or corporation and
shall not in any way bind or restrict the Investment Manager or any such
affiliated person from buying, selling or trading any securities or commodities
for their own accounts or for the account of others for whom they may be acting.
Nothing in this Agreement shall limit or restrict the right of any director,
officer or employee of the Investment Manager to engage in any other business or
to devote his or her time and attention in part to the management or other
aspects of any other business whether of a similar or dissimilar nature.
10. This Agreement shall continue in effect with respect to the Fund
for a period of two years from the effective date hereof and thereafter provided
such continuance is approved at least annually by the vote of holders of a
majority (as defined in the Act) of the outstanding voting securities of the
Fund or by the Board of Trustees of the Fund; provided that in either event such
continuance is also approved annually by the vote of a majority of the Trustees
of the Fund who are not parties to this Agreement or
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"interested persons" (as defined in the Act) of any such party, which vote must
be cast in person at a meeting called for the purpose of voting on such
approval; provided, however, that (a) the Fund may, at any time and without the
payment of any penalty, terminate this Agreement upon thirty days' written
notice to the Investment Manager, either by majority vote of the Board of
Trustees of the Fund or by the vote of a majority of the outstanding voting
securities of the Fund; (b) this Agreement shall immediately terminate in the
event of its assignment (within the meaning of the Act) unless such automatic
termination shall be prevented by an exemptive order of the Securities and
Exchange Commission; and (c) the Investment Manager may terminate this Agreement
without payment of penalty on thirty days' written notice to the Fund. Any
notice under this Agreement shall be given in writing, addressed and delivered,
or mailed post-paid, to the other party at the principal office of such party.
11. This Agreement may be amended by the parties without the vote or
consent of shareholders of the Fund to supply any omission, to cure, correct or
supplement any ambiguous, defective or inconsistent provision hereof, or if they
deem it necessary to conform this Agreement to the requirements of applicable
federal laws or regulations, but neither the Fund nor the Investment Manager
shall be liable for failing to do so.
12. This Agreement shall be construed in accordance with the law of the
State of New York and the applicable provisions of the Act. To the extent the
applicable law of the State of New York, or any of the provisions herein,
conflicts with the applicable provisions of the Act, the latter shall control.
13. The Declaration of Trust, together with all amendments thereto
establishing the Fund (the "Declaration"), is on file in the office of the
Secretary of the Commonwealth of Massachusetts, provides that the name of the
Fund refers to the Trustees under the Declaration collectively as Trustees, but
not as individuals or personally; and no Trustee, shareholder, officer, employee
or agent of the Fund shall be held to any personal liability, nor shall resort
be had to their private property for the satisfaction of any obligation or claim
or otherwise, in connection with the affairs of the Fund, but the Trust Estate
only shall be liable.
14. The Investment Manager and the Fund agree that the name Xxxxxx
Xxxxxxx is a property right of the Investment Manager or its parent. The Fund
agrees and consents that (i) it will only use the name Xxxxxx Xxxxxxx as a
component of its name and for no other purpose, (ii) it will not purport to
grant to any third party the right to use the Name for any purpose, (iii) the
Investment Manager or its parent, or any corporate affiliate of the Investment
Manager's parent, may use or grant to others the right to use the name Xxxxxx
Xxxxxxx, or any combination or abbreviation thereof, as all or a portion of a
corporate or business name or for any commercial purpose, including a grant of
such right to any other investment company, (iv) at the request of the
Investment Manager or its parent or any corporate affiliate of the Investment
Manager's parent, the Fund will take such action as may be required to provide
its consent to the use name Xxxxxx Xxxxxxx, or any combination or abbreviation
thereof, by the Investment Manager or its parent or any corporate affiliate of
the Investment Manager's parent, or by any person to whom the Investment Manager
or its then current parent or a corporate affiliate of the Investment Manager's
parent shall have granted the right to such use, and (v) upon the termination of
any investment advisory agreement into which a corporate affiliate of the
Investment Manager's parent and the Fund may enter, or upon termination of
affiliation of the Investment Manager with its parent, the Fund shall, upon
request of the Investment Manager or its parent or any corporate affiliate of
the Investment Manager's parent, cease to use the Name as a component of its
name, and shall not use the name, or any combination or abbreviation thereof, as
a part of its name or for any other commercial purpose, and shall cause its
officers, trustees/directors and shareholders to take any and all actions which
the Investment Manager or its parent or any corporate affiliate of the
Investment Manager's parent, may request to effect the foregoing and to reconvey
to the Investment Manager's parent any and all rights to such name.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, on June 26, 2008, in New York, New York.
XXXXXX XXXXXXX SERIES FUNDS, on behalf of
XXXXXX XXXXXXX ALTERNATIVE
OPPORTUNITIES FUND
By:
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Attest:
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XXXXXX XXXXXXX INVESTMENT ADVISORS INC.
By:
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Attest:
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