INVESTMENT MANAGEMENT AGREEMENT
AVE XXXXX XXXX FUND
INVESTMENT MANAGEMENT AGREEMENT, dated as of April 30, 2003 by and between
Xxxxxxxx Investment Counsel, Inc., a Michigan corporation (the "Adviser"), and
Xxxxxxxx Investment Trust (the "Trust"), which was organized as an Ohio business
trust on August 31, 1992.
WHEREAS, the Trust is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, shares of beneficial interest in the Trust are divided into
separate series or funds; and
WHEREAS, the Trust desires to avail itself of the services, information,
advice, assistance and facilities of an investment advisor and to have an
investment advisor perform for it various investment advisory and research
services and other management services; and
WHEREAS, the Adviser is an investment adviser registered under the
Investment Advisers Act of 1940, as amended, and desires to provide investment
advisory services to the Trust;
NOW THEREFORE, in consideration of the terms and conditions hereinafter set
forth, it is agreed as follows:
1. EMPLOYMENT OF THE ADVISER. The Trust, on behalf of the Ave Xxxxx Xxxx
Fund (the "Fund"), hereby employs the Adviser to manage the investment and
reinvestment of the assets of the Fund subject to the control and direction of
the Trust's Board of Trustees, for the period of the term hereinafter set forth.
The Adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation herein provided. The Adviser shall for all purposes herein be
deemed to be independent contractor and shall, except as expressly provided or
authorized (whether herein or otherwise), have no authority to act for or
represent the Trust in any way or otherwise be deemed an agent of the Trust.
2. OBLIGATIONS OF AND SERVICES TO BE PROVIDED BY THE ADVISER. In providing
the services and assuming the obligations set forth herein, the Adviser
undertakes to provide the following services and to assume the following
obligations:
a) The Adviser will manage the investment and reinvestment of the assets of
the Fund, subject to and in accordance with the respective investment objective
and policies of the Fund and any directions which the Trust's Board of Trustees
may issue from time to time. In pursuance of the foregoing, the Adviser will
make all determinations with respect to the investment of the assets of the
Fund, to effect the purchase and sale of portfolio securities and to take such
steps as may be necessary to implement the same. The services by the Adviser
shall also include determining the manner in which voting rights, rights to
consent to corporate action and any other rights pertaining to the portfolio
securities shall be exercised. The Adviser shall render regular reports to the
Trust's Board of Trustees concerning the Trust's and the Fund's investment
activities.
b) The Adviser shall place orders for the execution of all portfolio
transactions, in the name of the Fund and in accordance with the policies with
respect thereto set forth in the Trust's registration statements under the 1940
Act and the Securities Act of 1933, as such registration statements may be
amended from time to time. In connection with the placement of orders for the
execution of portfolio transactions, the Adviser shall create and maintain all
necessary brokerage records for the Fund, which records shall comply with all
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the 1940 Act. All records shall be the property of
the Trust and shall be available for inspection and use by the Securities and
Exchange Commission (the "SEC"), the Trust or any person retained by the Trust.
Where applicable, such records shall be maintained by the Adviser for the
periods and in the places required by Rule 31a -2 under the 1940 Act.
c) In the event of any reorganization or other change in the Adviser, its
investment principals, supervisors or members of its investment (or comparable)
committee, the Adviser shall give the Trust's Board of Trustees written notice
of such reorganization or change within a reasonable time (but not later than 30
days) after such reorganization or change.
d) The Adviser shall bear its expenses of providing services to the Trust
pursuant to this Agreement except such expenses as are undertaken by the Trust.
In addition, the Adviser shall pay the salaries and fees, if any, of all
Trustees, officers and employees of the Trust who are affiliated persons, as
defined in Section 2(a)(3) of the 1940 Act, of the Adviser.
e) The Adviser will manage the Fund's assets and the investment and
reinvestment of such assets so as to comply with the provisions of the 1940 Act
and with Subchapter M of the Internal Revenue Code of 1986, as amended.
3. EXPENSES. The Trust shall pay the expenses of its operation, including
but not limited to (i) charges and expenses for Trust accounting, pricing and
appraisal services and related overhead, (ii) the charges and expenses of the
Trust's auditors; (iii) the charges and expenses of any custodian, transfer
agent, plan agent, dividend disbursing agent and registrar appointed by the
Trust with respect to the Fund; (iv) brokers'
commissions, and issue and transfer taxes, chargeable to the Trust in connection
with securities transactions to which the Trust is a party; (v) insurance
premiums, interest charges, dues and fees for Trust membership in trade
associations and all taxes and fees payable by the Trust to federal, state or
other governmental agencies; (vi) fees and expenses involved in registering and
maintaining registrations of the Trust and/or shares of the Trust with the SEC,
state or blue sky securities agencies and foreign countries, including the
preparation of Prospectuses and Statements of Additional Information for filing
with the SEC; (vii) all expenses of meetings of Trustees and of shareholders of
the Trust and of preparing, printing and distributing prospectuses, notices,
proxy statements and all reports to shareholders and to governmental agencies;
(viii) charges and expenses of legal counsel to the Trust; (ix) compensation of
Trustees of the Trust; and (x) interest on borrowed money, if any.
4. COMPENSATION OF THE ADVISER.
a) As compensation for the services rendered and obligations assumed
hereunder by the Adviser, the Trust shall pay to the Adviser quarterly a fee
that is equal on an annual basis to 0.30% of the average daily net assets of the
Fund. Such fee shall be computed and accrued daily. If the Adviser serves as
investment adviser for less than the whole of any period specified in this
Section 4a, the compensation to the Adviser shall be prorated. For purposes of
calculating the Adviser's fee, the daily value of the Fund's net assets shall be
computed by the same method as the Trust uses to compute the net asset value of
that Fund.
b) The Adviser reserves the right to waive all or a part of its fee.
5. ACTIVITIES OF THE ADVISER. The services of the Adviser to the Trust
hereunder are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others. It is understood that the Trustees and
officers of the Trust are or may become interested in the Adviser as
stockholders, officers or otherwise, and that stockholders and officers of the
Adviser are or may become similarly interested in the Trust, and that the
Adviser may become interested in the Trust as a shareholder or otherwise.
The Adviser has supplied to the Trust copies of its Form ADV with all
exhibits and attachments thereto and will hereafter supply to the Trust,
promptly upon the preparation thereof, copies of all amendments or restatements
of such document.
The Adviser has also delivered to the Trust copies of its code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act. If in the
opinion of counsel to the Trust, the code of ethics does not satisfy the
requirements of Rule 17j-1, the Adviser will adopt a code of ethics that does.
The Adviser shall promptly furnish the Trust with all amendments of or
supplements to its Code of Ethics at least annually. On a quarterly basis, the
Adviser shall report on compliance by the access persons of the Fund with its
Code of Ethics to the Board of Trustees and upon the written request of the
Trust, the
Adviser shall permit the Trust, or their respective representatives to examine
the reports required to be made to the Adviser by the access persons of the Fund
under such code.
6. USE OF NAMES. The Trust will not use the name of the Adviser in any
prospectus, sales literature or other material relating to the Trust in any
manner not approved prior thereto by the Adviser; except that the Trust may use
such name in any document which merely refers in accurate terms to its
appointment hereunder or in any situation which is required by the SEC or a
state securities commission; and provided further, that in no event shall such
approval be unreasonably withheld. The Adviser will not use the name of the
Trust in any material relating to the Adviser in any manner not approved prior
thereto by the Trust; except that the Adviser may use such name in any document
which merely refers in accurate terms to the appointment of the Adviser
hereunder or in any situation which is required by the SEC or a state securities
commission. In all other cases, the parties may use such names to the extent
that the use is approved by the party named, it being agreed that in no event
shall such approval be unreasonably withheld.
7. LIMITATION OF LIABILITY OF THE ADVISER.
a) Absent 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 subject to liability to the Trust or to any shareholder in
any Fund 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. As used in this Section 7, the term "Adviser"
shall include Xxxxxxxx Investment Counsel, Inc. ("Xxxxxxxx") and/or any of its
affiliates and the directors, officers and employees of Xxxxxxxx and/or any of
its affiliates.
b) The Trust will indemnify the Adviser against, and hold it harmless from,
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from acts or omissions of the
Trust. Indemnification shall be made only after: (i) a final decision on the
merits by a court or other body before whom the proceeding was brought that the
Trust was liable for the damages claimed or (ii) in the absence of such a
decision, a reasonable determination based upon a review of the facts, that the
Trust was liable for the damages claimed, which determination shall be made by
either (a) the vote of a majority of a quorum of Trustees of the Trust who are
neither "interested persons" of the Trust nor parties to the proceeding
"disinterested non-party Trustees") or (b) an independent legal counsel
satisfactory to the parties hereto, whose determination shall be set forth in a
written opinion. The Adviser shall be entitled to advances from the Trust for
payment of the reasonable expenses incurred by it in connection with the matter
as to which it is seeking indemnification in the manner and to the fullest
extent that would be permissible under the applicable provisions of Michigan
Law. The Adviser shall provide to the Trust a written affirmation of its good
faith belief that the standard of conduct necessary for indemnification under
such law has been met and a written undertaking to repay any such advance if it
should ultimately be
determined that the standard of conduct has not been met. In addition, at least
one of the following additional conditions shall be met: (i) the Adviser shall
provide security in form and amount acceptable to the Trust for its undertaking;
(ii) the Trust is insured against losses arising by reason of the advance; or
(iii) a majority of a quorum of the Trustees of the Trust, the members of which
a majority are disinterested non-party Trustees, or independent legal counsel in
a written opinion, shall have determined, based on a review of facts readily
available to the Trust at the time the advance is proposed to be made, that
there is reason to believe that the Adviser will ultimately be found to be
entitled to indemnification.
8. LIMITATION OF TRUST'S LIABILITY. The Adviser acknowledges that it has
received notice of and accepts the limitations upon the Trust's liability set
forth in its Declaration of Trust. The Adviser agrees that the Trust's
obligations hereunder in any case shall be limited to the Trust and to its
assets and that the Adviser shall not seek satisfaction of any such obligation
from the holders of the shares of any Fund nor from any Trustee, officer,
employee or agent of the Trust.
9. 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.
10. RENEWAL, TERMINATION AND AMENDMENT.
a) This Agreement shall continue in effect, unless sooner terminated as
hereinafter provided, for a period of two years from the date hereof and it
shall continue indefinitely thereafter as to the Fund, provided that such
continuance is specifically approved by the parties hereto and, in addition, at
least annually by (i) the vote of holders of a majority of the outstanding
voting securities of the affected Fund or by vote of a majority of the Trust's
Board of Trustees and (ii) 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.
b) This Agreement may be terminated at any time, with respect to any Fund,
without payment of any penalty, by the Trust's Board of Trustees or by a vote of
the majority of the outstanding voting securities of the affected Fund upon 60
days' prior written notice to the Adviser and by the Adviser upon 60 days' prior
written notice to the Trust.
c) This Agreement may be amended at any time by the parties hereto, subject
to approval by the Trust'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
Fund affected by such change. This Agreement shall terminate automatically in
the event of its assignment.
d) The terms "assignment," "interested persons" and "majority of the
outstanding voting securities" shall have the meaning set forth for such terms
in the 1940 Act.
11. SEVERABILITY. If any 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.
12. MISCELLANEOUS. Each party agrees to perform such further actions and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Michigan. The captions in this Agreement
are included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Pursuant to the Trust's Declaration of Trust, the obligations of this Agreement
are not binding upon any of the Trustees or shareholders of the Trust
individually, but bind only the Trust estate.
XXXXXXXX INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
XXXXXXXX INVESTMENT COUNSEL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
INVESTMENT MANAGEMENT AGREEMENT
AVE XXXXX GROWTH FUND
INVESTMENT MANAGEMENT AGREEMENT, dated as of April 30, 2003 by and between
Xxxxxxxx Investment Counsel, Inc., a Michigan corporation (the "Adviser"), and
Xxxxxxxx Investment Trust (the "Trust"), which was organized as an Ohio business
trust on August 31, 1992.
WHEREAS, the Trust is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, shares of beneficial interest in the Trust are divided into
separate series or funds; and
WHEREAS, the Trust desires to avail itself of the services, information,
advice, assistance and facilities of an investment advisor and to have an
investment advisor perform for it various investment advisory and research
services and other management services; and
WHEREAS, the Adviser is an investment adviser registered under the
Investment Advisers Act of 1940, as amended, and desires to provide investment
advisory services to the Trust;
NOW THEREFORE, in consideration of the terms and conditions hereinafter set
forth, it is agreed as follows:
1. EMPLOYMENT OF THE ADVISER. The Trust, on behalf of the Ave Xxxxx Growth
Fund (the "Fund"), hereby employs the Adviser to manage the investment and
reinvestment of the assets of the Fund subject to the control and direction of
the Trust's Board of Trustees, for the period of the term hereinafter set forth.
The Adviser hereby accepts such employment and agrees during such period to
render the services and to assume the obligations herein set forth for the
compensation herein provided. The Adviser shall for all purposes herein be
deemed to be independent contractor and shall, except as expressly provided or
authorized (whether herein or otherwise), have no authority to act for or
represent the Trust in any way or otherwise be deemed an agent of the Trust.
2. OBLIGATIONS OF AND SERVICES TO BE PROVIDED BY THE ADVISER. In providing
the services and assuming the obligations set forth herein, the Adviser may, at
its expense, employ one or more sub-advisers for any Fund. Any agreement between
the Adviser and a sub-adviser shall be subject to the renewal, termination and
amendment provisions of paragraph 10 hereof. The Adviser undertakes to provide
the following services and to assume the following obligations:
a) The Adviser will manage the investment and reinvestment of the assets of
the Fund, subject to and in accordance with the respective investment objective
and policies of the Fund and any directions which the Trust's Board of Trustees
may issue from time to time. In pursuance of the foregoing, the Adviser may
engage separate investment advisers ("sub-adviser(s)") to make all
determinations with respect to the investment of the assets of the Fund, to
effect the purchase and sale of portfolio securities and to take such steps as
may be necessary to implement the same. Such determination and services by a
sub-adviser shall also include determining the manner in which voting rights,
rights to consent to corporate action and any other rights pertaining to the
portfolio securities shall be exercised. The Adviser shall, and shall cause
sub-adviser to, render regular reports to the Trust's Board of Trustees
concerning the Trust's and the Fund's investment activities.
b) The Adviser shall, or shall cause the respective sub-adviser(s) to place
orders for the execution of all portfolio transactions, in the name of the Fund
and in accordance with the policies with respect thereto set forth in the
Trust's registration statements under the 1940 Act and the Securities Act of
1933, as such registration statements may be amended from time to time. In
connection with the placement of orders for the execution of portfolio
transactions, the Adviser shall create and maintain (or cause the sub-adviser to
create and maintain) all necessary brokerage records for the Fund, which records
shall comply with all applicable laws, rules and regulations, including but not
limited to records required by Section 31(a) of the 1940 Act. All records shall
be the property of the Trust and shall be available for inspection and use by
the Securities and Exchange Commission (the "SEC"), the Trust or any person
retained by the Trust. Where applicable, such records shall be maintained by the
Adviser (or sub-adviser) for the periods and in the places required by Rule 31a
-2 under the 1940 Act.
c) In the event of any reorganization or other change in the Adviser, its
investment principals, supervisors or members of its investment (or comparable)
committee, the Adviser shall give the Trust's Board of Trustees written notice
of such reorganization or change within a reasonable time (but not later than 30
days) after such reorganization or change.
d) The Adviser shall bear its expenses of providing services to the Trust
pursuant to this Agreement except such expenses as are undertaken by the Trust.
In addition, the Adviser shall pay the salaries and fees, if any, of all
Trustees, officers and employees of the Trust who are affiliated persons, as
defined in Section 2(a)(3) of the 1940 Act, of the Adviser.
e) The Adviser will manage, or will cause the sub-adviser to manage, the
Fund's assets and the investment and reinvestment of such assets so as to comply
with the provisions of the 1940 Act and with Subchapter M of the Internal
Revenue Code of 1986, as amended.
3. EXPENSES. The Trust shall pay the expenses of its operation, including
but not limited to (i) charges and expenses for Trust accounting, pricing and
appraisal services and related overhead, (ii) the charges and expenses of the
Trust's auditors; (iii) the charges and expenses of any custodian, transfer
agent, plan agent, dividend disbursing agent and registrar appointed by the
Trust with respect to the Fund; (iv) brokers' commissions, and issue and
transfer taxes, chargeable to the Trust in connection with securities
transactions to which the Trust is a party; (v) insurance premiums, interest
charges, dues and fees for Trust membership in trade associations and all taxes
and fees payable by the Trust to federal, state or other governmental agencies;
(vi) fees and expenses involved in registering and maintaining registrations of
the Trust and/or shares of the Trust with the SEC, state or blue sky securities
agencies and foreign countries, including the preparation of Prospectuses and
Statements of Additional Information for filing with the SEC; (vii) all expenses
of meetings of Trustees and of shareholders of the Trust and of preparing,
printing and distributing prospectuses, notices, proxy statements and all
reports to shareholders and to governmental agencies; (viii) charges and
expenses of legal counsel to the Trust; (ix) compensation of Trustees of the
Trust; and (x) interest on borrowed money, if any.
4. COMPENSATION OF THE ADVISER.
a) As compensation for the services rendered and obligations assumed
hereunder by the Adviser, the Trust shall pay to the Adviser quarterly a fee
that is equal on an annual basis to 1% of the average daily net assets of the
Fund. Such fee shall be computed and accrued daily. If the Adviser serves as
investment adviser for less than the whole of any period specified in this
Section 4a, the compensation to the Adviser shall be prorated. For purposes of
calculating the Adviser's fee, the daily value of the Fund's net assets shall be
computed by the same method as the Trust uses to compute the net asset value of
that Fund.
b) The Adviser will pay all fees owing to the sub-adviser, and the Trust
shall not be obligated to the sub-advisers in any manner with respect to the
compensation of such sub-advisers.
c) The Adviser reserves the right to waive all or a part of its fee.
5. ACTIVITIES OF THE ADVISER. The services of the Adviser to the Trust
hereunder are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others. It is understood that the Trustees and
officers of the Trust are or may become interested in the Adviser as
stockholders, officers or otherwise, and that stockholders and officers of the
Adviser are or may become similarly interested in the Trust, and that the
Adviser may become interested in the Trust as a shareholder or otherwise.
The Adviser has supplied to the Trust copies of its Form ADV with all
exhibits and attachments thereto and will hereafter supply to the Trust,
promptly upon the preparation thereof, copies of all amendments or restatements
of such document.
The Adviser has also delivered to the Trust copies of its code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act (the "Code").
If in the opinion of counsel to the Trust, the code of ethics does not satisfy
the requirements of Rule 17j-1, the Adviser will adopt a code of ethics that
does. The Adviser shall promptly furnish the Trust with all amendments of or
supplements to its code of ethics at least annually. On a quarterly basis, the
Adviser shall report on compliance by the access persons of the Fund with its
Code of Ethics to the Board of Trustees and upon the written request of the
Trust, the Adviser shall permit the Trust, or their respective representatives
to examine the reports required to be made to the Adviser by the access persons
of the Fund under such code.
6. USE OF NAMES. The Trust will not use the name of the Adviser in any
prospectus, sales literature or other material relating to the Trust in any
manner not approved prior thereto by the Adviser; except that the Trust may use
such name in any document which merely refers in accurate terms to its
appointment hereunder or in any situation which is required by the SEC or a
state securities commission; and provided further, that in no event shall such
approval be unreasonably withheld. The Adviser will not use the name of the
Trust in any material relating to the Adviser in any manner not approved prior
thereto by the Trust; except that the Adviser may use such name in any document
which merely refers in accurate terms to the appointment of the Adviser
hereunder or in any situation which is required by the SEC or a state securities
commission. In all other cases, the parties may use such names to the extent
that the use is approved by the party named, it being agreed that in no event
shall such approval be unreasonably withheld.
7. LIMITATION OF LIABILITY OF THE ADVISER.
a) Absent 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 subject to liability to the Trust or to any shareholder in
any Fund 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. As used in this Section 7, the term "Adviser"
shall include Xxxxxxxx Investment Counsel, Inc. ("Xxxxxxxx") and/or any of its
affiliates and the directors, officers and employees of Xxxxxxxx and/or any of
its affiliates.
b) The Trust will indemnify the Adviser against, and hold it harmless from,
any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from acts or omissions of the
Trust. Indemnification shall be made only after: (i) a final decision on the
merits by a court or other body before whom the proceeding was brought that the
Trust was liable for the damages claimed or (ii) in the absence of such a
decision, a reasonable determination based upon a review of the facts, that the
Trust was liable for the damages claimed, which determination shall be made by
either (a) the vote of a majority of a quorum of Trustees of the Trust who are
neither "interested persons" of the Trust nor parties to the proceeding
"disinterested non-party Trustees") or (b) an
independent legal counsel satisfactory to the parties hereto, whose
determination shall be set forth in a written opinion. The Adviser shall be
entitled to advances from the Trust for payment of the reasonable expenses
incurred by it in connection with the matter as to which it is seeking
indemnification in the manner and to the fullest extent that would be
permissible under the applicable provisions of Michigan Law. The Adviser shall
provide to the Trust a written affirmation of its good faith belief that the
standard of conduct necessary for indemnification under such law has been met
and a written undertaking to repay any such advance if it should ultimately be
determined that the standard of conduct has not been met. In addition, at least
one of the following additional conditions shall be met: (i) the Adviser shall
provide security in form and amount acceptable to the Trust for its undertaking;
(ii) the Trust is insured against losses arising by reason of the advance; or
(iii) a majority of a quorum of the Trustees of the Trust, the members of which
a majority are disinterested non-party Trustees, or independent legal counsel in
a written opinion, shall have determined, based on a review of facts readily
available to the Trust at the time the advance is proposed to be made, that
there is reason to believe that the Adviser will ultimately be found to be
entitled to indemnification.
8. LIMITATION OF TRUST'S LIABILITY. The Adviser acknowledges that it has
received notice of and accepts the limitations upon the Trust's liability set
forth in its Declaration of Trust. The Adviser agrees that the Trust's
obligations hereunder in any case shall be limited to the Trust and to its
assets and that the Adviser shall not seek satisfaction of any such obligation
from the holders of the shares of any Fund nor from any Trustee, officer,
employee or agent of the Trust.
9. 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.
10. RENEWAL, TERMINATION AND AMENDMENT.
a) This Agreement shall continue in effect, unless sooner terminated as
hereinafter provided, for a period of two years from the date hereof and it
shall continue indefinitely thereafter as to the Fund, provided that such
continuance is specifically approved by the parties hereto and, in addition, at
least annually by (i) the vote of holders of a majority of the outstanding
voting securities of the affected Fund or by vote of a majority of the Trust's
Board of Trustees and (ii) 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.
b) This Agreement may be terminated at any time, with respect to any Fund,
without payment of any penalty, by the Trust's Board of Trustees or by a vote of
the majority of the outstanding voting securities of the affected Fund upon 60
days' prior written notice to the Adviser and by the Adviser upon 60 days' prior
written notice to the Trust.
c) This Agreement may be amended at any time by the parties hereto, subject
to approval by the Trust'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 Fund affected by such change. This Agreement shall terminate
automatically in the event of its assignment.
d) The terms "assignment," "interested persons" and "majority of the
outstanding voting securities" shall have the meaning set forth for such terms
in the 1940 Act.
11. SEVERABILITY. If any 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.
12. MISCELLANEOUS. Each party agrees to perform such further actions and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Michigan. The captions in this Agreement
are included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Pursuant to the Trust's Declaration of Trust, the obligations of this Agreement
are not binding upon any of the Trustees or shareholders of the Trust
individually, but bind only the Trust estate.
XXXXXXXX INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
XXXXXXXX INVESTMENT COUNSEL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
SUB-ADVISORY AGREEMENT
XXXXXXXX INVESTMENT TRUST
This SUB-ADVISORY AGREEMENT (the "Agreement") is made as of April 30, 2003,
by and among Xxxxxxxx Investment Trust, an Ohio business trust (the "Trust"),
Xxxxxxxx Investment Counsel, Inc., a Michigan corporation (the "Adviser"), and
JLB & Associates, Inc., a Michigan corporation (the "Sub-Adviser").
WHEREAS, the Trust is an Ohio business trust registered as an open-end
diversified management investment company under the Investment Company Act of
1940 (the "1940 Act"); and
WHEREAS, the Adviser is an investment adviser registered under the
Investment Advisers Act of 1940, as amended, and has been retained by the Trust
to provide investment services to the Trust;
WHEREAS, the Sub-Adviser also is an investment adviser registered under the
Investment Advisers Act of 1940, as amended; and
WHEREAS, the Trust and the Adviser desire to retain the Sub-Adviser to
furnish it with portfolio management services in connection with the Adviser's
investment advisory activities on behalf of the Ave Xxxxx Growth Fund (the
"Fund"), a series of the Trust, and the Sub-Adviser is willing to furnish such
services to the Adviser and the Fund;
NOW THEREFORE, in consideration of the terms and conditions hereinafter set
forth, it is agreed as follows:
1. EMPLOYMENT OF THE SUB-ADVISER. In accordance with and subject to the
Investment Advisory Agreement between the Trust and the Adviser, the Trust and
the Adviser hereby appoint the Sub-Adviser to manage the investment and
reinvestment of the assets of the Fund, subject to the control and direction of
the Adviser and the Trust's Board of Trustees, for the period and on the terms
hereinafter set forth. The Sub-Adviser hereby accepts such employment and agrees
during such period to render the services and to perform the duties called for
by this Agreement for the compensation herein provided. The Sub-Adviser shall at
all times maintain its registration as an investment adviser under the
Investment Advisers Act of 1940 and shall otherwise comply in all material
respects with all applicable laws and regulations, both state and federal. The
Sub-Adviser shall for all purposes herein be deemed an independent contractor
and shall, except as expressly provided or authorized (whether herein or
otherwise), have no authority to act for or represent the Trust in any way or
otherwise be deemed an agent of the Trust or the Fund.
2. DUTIES OF THE SUB-ADVISER. The Sub-Adviser will provide the following
services and undertake the following duties:
a. The Sub-Adviser will manage the investment and reinvestment of the
assets of the Fund, subject to and in accordance with the investment objectives,
policies and restrictions of the Fund and any directions which the Adviser or
the Trust's Board of Trustees may give from time to time with respect to the
Fund. In furtherance of the forgoing, the Sub-Adviser will make all
determinations with respect to the investment of the assets of the Fund and the
purchase and sale of portfolio securities and shall take such steps as may be
necessary or advisable to implement the same.
b. The Sub-Adviser shall provide support to the Adviser with respect to the
marketing of the Fund, including but not limited to: (i) permission to use the
Sub-Adviser's name as provided in Section 5, (ii) permission to use the past
performance and investment history of the Sub-Adviser as the same is applicable
to the Fund, (iii) access to the individual(s) responsible for day-to-day
management of the Fund for marketing conferences, teleconferences and other
activities involving the promotion of the Fund, subject to the reasonable
request of the Adviser, and (iv) permission to use biographical and historical
data of the Sub-Adviser and individual manager(s).
c. In the event of any reorganization or other change in the Sub-Adviser,
its investment principals, supervisors or members of its investment (or
comparable) committee, the Sub-Adviser shall give the Adviser and the Trust's
Board of Trustees written notice of such reorganization or change within a
reasonable time (but not later than 30 days) after such reorganization or
change.
d. The Sub-Adviser will bear its expenses of providing services to the Fund
pursuant to this Agreement except such expenses as are undertaken by the Adviser
or the Trust.
e. The Sub-Adviser will manage the Fund and the investment and reinvestment
of such assets so as to comply with the provisions of the 1940 Act, the current
Prospectus and Statement of Additional Information of the Fund, and with
Subchapter M of the Internal Revenue Code of 1986, as amended.
3. COMPENSATION OF THE SUB-ADVISER.
As compensation for the services to be rendered and duties undertaken
hereunder by the Sub-Adviser, the Adviser will pay to the Sub-Adviser a
quarterly sub-advisory fee equal to 0.40% per annum of the average daily net
assets of the Fund. The Sub-Adviser's fee will be reduced on a pro-rata basis to
the extent the Adviser waives any of its advisory fees or reimburses expenses of
the Fund.
4. ACTIVITIES OF THE SUB-ADVISER. It is understood that the Sub-Adviser may
perform investment advisory services for various other clients, including other
investment companies. If requested by the Adviser, the Sub-Adviser will report
(generally via conference call or in writing) to the Board of Trustees of the
Trust (at regular quarterly meetings and at such other times as such Board of
Trustees reasonably shall request) (i) information regarding any potential
conflicts of interest arising by
reason of its continuing provision of advisory services to the Fund and to its
other accounts, and (ii) such other information as the Board of Trustees shall
reasonably request regarding the Fund, the Fund's performance, the services
provided by the Sub-Adviser to the Fund as compared to its other accounts and
the plans of, and the capability of, the Sub-Adviser with respect to providing
future services to the Fund and its other accounts. The Sub-Adviser agrees to
submit to the Trust a statement defining its policies with respect to the
allocation of business among the Fund and its other clients.
The Sub-Adviser has supplied to the Adviser and the Trust copies of its
Form ADV with all exhibits and attachments thereto and will hereafter supply to
the Adviser, promptly upon the preparation thereof, copies of all amendments or
restatements of such document.
The Sub-Adviser has also delivered to the Adviser and the Trust copies of
its code of ethics complying with the requirements of Rule 17j-1 under the 1940
Act (the "Code"). If in the opinion of counsel to the Trust, the code of ethics
does not satisfy the requirements of Rule 17j-1, the Sub-Adviser will adopt a
code of ethics that does. The Sub-Adviser shall promptly furnish the Adviser and
Trust with all amendments or supplements to its code of ethics at least
annually. On a quarterly basis, the Sub-Adviser shall report to the Adviser and
the Board on compliance by the access persons of the Fund with its Code of
Ethics, and upon the written request of the Adviser or the Trust, the
Sub-Adviser shall permit the Adviser and the Trust, or their respective
representatives to examine the reports required to be made to the Sub-Adviser by
the access persons of the Fund under such code.
5. USE OF NAMES. Neither the Adviser nor the Trust shall use the name of
the Sub-Adviser in any prospectus, sales literature or other material relating
to the Adviser or the Trust in any manner not approved in advance by the
Sub-Adviser; provided, however, that the Sub-Adviser will approve all uses of
its name which merely refer in accurate terms to its appointment hereunder or
which are required by the SEC or a state securities commission; and provided
further, that in no event shall such approval be unreasonably withheld. The
Sub-Adviser shall not use the name of the Adviser or the Trust in any material
relating to the Sub-Adviser in any manner not approved in advance by the Adviser
or the Trust, as the case may be; provided, however, that the Adviser and the
Trust shall each approve all uses of their respective names which merely refer
in accurate terms to the appointment of the Sub-Adviser hereunder or which are
required by the SEC or a state securities commission; and, provided further,
that in no event shall such approval be unreasonably withheld.
6. LIMITATION OF LIABILITY OF THE SUB-ADVISER. The Sub-Adviser shall not be
liable for any mistake of judgment or otherwise, except for lack of good faith,
provided that nothing herein shall be deemed to protect, or purport to protect,
the Sub-Adviser against any liability to the Adviser, the Trust or to any
shareholder to which the Sub-Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties hereunder, or by reason of the Sub-Adviser's reckless disregard of its
obligations and duties hereunder. As used in this
Section 6, the term "Sub-Adviser" shall include the Sub-Adviser and/or any of
its affiliates and the directors, officers and employees of the Sub-Adviser
and/or any of its affiliates.
7. LIMITATION OF TRUST'S LIABILITY. The Sub-Adviser acknowledges that it
has received notice of and accepts the limitations upon the Trust's liability
set forth in its Declaration of Trust. The Sub-Adviser agrees that (i) the
Trust's obligations to the Sub-Adviser under this Agreement (or indirectly under
the Investment Advisory Agreement between the Trust and the Adviser) shall be
limited in any event to the assets of the Fund and (ii) the Sub-Adviser shall
not seek satisfaction of any such obligation from the holders of shares of the
Fund nor from any Trustee, officer, employee or agent of the Trust.
8. FORCE MAJEURE. The Sub-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 Sub-Adviser shall take reasonable steps to minimize
service interruptions but shall have no liability with respect thereto.
9. RENEWAL, TERMINATION AND AMENDMENT.
a. This Agreement shall become effective on the date of its execution and
shall remain in force for a period of two (2) years from such date, and from
year to year thereafter provided that such continuance is specifically approved
by the parties and, in addition, by (i) the vote of the holders of a majority of
the outstanding voting securities (as herein defined) of the Fund or by vote of
a majority of the Trust's Board of Trustees and (ii) by the vote of a majority
of the Trustees who are not parties to this Agreement or interested persons of
either the Adviser or the Sub-Adviser, cast in person at a meeting called for
the purpose of voting on such approval.
b. This Agreement may be terminated at any time, without payment of any
penalty, (i) by the Adviser if the Fund receives an exemptive order issued by
the Securities and Exchange Commission permitting the Adviser to enter into and
materially amend sub-advisory agreements of the Trust, without shareholder
approval subject to oversight of the Trust's Board of Trustees ("Exemptive
Order"), by the Trust's Board of Trustees or by a vote of the majority of the
outstanding voting securities of the Fund, in any such case upon not less than
60 days' prior written notice to the Sub-Adviser and (ii) by the Sub-Adviser
upon not less than 60 days' prior written notice to the Adviser and the Trust.
This Agreement shall terminate automatically in the event of (A) its assignment
or (B) the termination of the Investment Advisory Agreement between the Trust
and the Adviser.
c. This Agreement may be amended at any time by the parties hereto, subject
to approval by the Trust's Board of Trustees and, or by the Adviser, subject to
oversight by the Trust's Board of Trustees, if the Fund receives an Exemptive
Order and, if required by
applicable SEC rules and regulations, a vote of the majority of the outstanding
voting securities of the Fund.
d. The terms "assignment," "interested persons" and "majority of the
outstanding voting securities" shall have the meaning set forth for such terms
in the 1940 Act.
10. SEVERABILITY. If any provision of this Agreement shall become or shall
be found to be invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
11. NOTICE. Any notices under this Agreement shall be in writing addressed
and delivered personally (or by telecopy) or mailed postage-paid, to the other
party at such address as such other party may designate in accordance with this
paragraph for the receipt of such notice. Until further notice to the other
party, it is agreed that the address of the Trust and that of the Adviser for
this purpose shall be 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 and
that the address of the Sub-Adviser shall be 00000 Xxx Xxxxx Xx., Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000.
12. MISCELLANEOUS. Each party agrees to perform such further actions and
execute such further documents as are necessary to effectuate the purposes
hereof. This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Michigan. The captions in this Agreement
are included for convenience only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
XXXXXXXX INVESTMENT TRUST XXXXXXXX INVESTMENT COUNSEL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------ --------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: President Title: President
JLB & ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: President
