Exhibit (d)(1)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, made as of the 21st day of November, 2006, by and between
Xxxxxxx Capital Mutual Funds, a Delaware statutory trust, on behalf of its
initial series the Xxxxxxx Capital Mid Cap Fund (the "Fund") and Xxxxxxx Capital
Advisors, LLC, a limited liability company (the "Adviser").
1. INVESTMENT ADVISORY SERVICES
The Fund hereby engages the Adviser, and the Adviser hereby agrees to act
as investment adviser for, and to manage the affairs, business and the
investment of the assets of the Fund.
The investment of the assets of the Fund shall at all times be subject to
the applicable provisions of the Articles of Incorporation, By-Laws,
Registration Statement on Form N-1A and any representations contained in the
Prospectus of the Fund and shall conform to the policies and purposes of the
Fund as set forth in such Registration Statement and Prospectus and (i) as
interpreted from time to time by the Board of Trustees of the Fund and (ii) as
may be amended from time to time by the Board of Trustees and/or the
shareholders of the Fund as permitted by the Investment Company Act of 1940, as
amended. Within the framework of the investment policies of the Fund, the
Adviser shall have the sole and exclusive responsibility for the management of
the Fund's assets and making and execution of all investment decisions for the
Fund. The Adviser shall report to the Board of Trustees of the Fund regularly at
such times and in such detail as the Board may from time to time determine to be
appropriate, in order to permit the Board to determine the adherence of the
Adviser to the investment policies of the Fund.
The Adviser shall, at its own expense, furnish the Fund with suitable
office space, and all necessary office facilities, equipment and personnel for
servicing the investments of the Fund. The Adviser shall arrange, if requested
by the Fund, for officers, employees or other Affiliated Persons (as defined in
Section 2(a)(3) of the Investment Company Act of 1940, as amended and the rules,
regulations and releases relating thereto) of the Adviser to serve without
compensation from the Fund as directors, officers, or employees of the Fund if
duly elected to such positions by the shareholders or directors of the Fund.
The Adviser hereby acknowledges that all records necessary in the operation
of the Fund, including records pertaining to its shareholders and investments,
are the property of the Fund, and in the event that a transfer of management or
investment advisory services to someone other than the Adviser should ever
occur, the Adviser will promptly, and at its own cost, take all steps necessary
to segregate such records and deliver them to the Fund.
2. COMPENSATION FOR SERVICES
In payment for all services, facilities, equipment and personnel, and for
other costs of the Adviser hereunder, the Fund shall pay to the Adviser a fee,
computed and paid monthly at the annual rate of .70% of the Fund's average daily
net asset value. Such average daily net asset value of the Fund shall be
determined by taking an average of all of the determinations of such net asset
value during such month while this Agreement is in effect.
For purposes of the calculation of such fee, the Fund's net assets shall be
computed at the times and in the manner specified in the Fund's Registration
Statement on Form N-1A. Such fee shall be payable on the fifth day of each
calendar month for service performed hereunder during the preceding month.
3. ALLOCATION OF EXPENSES
(a) In addition to the fees described in Section 2 hereof, the Fund shall
pay all its expenses which are not assumed by the Adviser in its capacity as the
Fund's investment adviser. These Fund expenses include, by way of example, but
not by way of limitation, (a) brokerage and commission expenses; (b) interest
charges on borrowings; (c) fees and expenses of legal counsel and independent
auditors; (d) the Fund's organizational and offering expenses, whether or not
advanced by the Adviser; (e) Federal, state, local and foreign taxes, including
issue and transfer taxes incurred by or levied on the Fund; (f) any expenses
(including clerical expenses) of issuance, sale or repurchase of the common
shares of the Fund; (g) association membership dues; (h) fees and expenses of
registering the Fund's shares under the appropriate Federal securities laws and
of qualifying the Fund's shares under applicable state securities laws; (i)
expenses of printing and distributing reports, notices and proxy materials to
shareholders; (j) costs of annual and special shareholders' meetings; (k)
expenses of filing reports and other documents with governmental agencies; (l)
charges and expenses of the Fund's Administrator, custodian and registrar,
transfer agent and dividend disbursing agent; (m) expenses of disbursing
dividends and distributions; (n) compensation of the Fund's officers, directors
and employees that are not Affiliated Persons or Interested Persons (as defined
in Section 2(a) of the Investment Company Act of 1940, as amended and the rules,
regulations and releases relating thereto) of the Adviser; (o) the cost of other
personnel providing services to the Fund; (p) travel expenses for attendance of
Board of Trustees meetings by all members of the Board of Trustees of the Fund;
(q) insurance expenses; (r) costs of stationery and supplies; and (s) any
extraordinary expenses of a nonrecurring nature.
(b) Notwithstanding the foregoing, if the aggregate expenses incurred by,
or allocated to, the Fund in any fiscal year shall exceed the expense
limitations applicable to the Fund imposed by state securities laws or
regulations thereunder, as such limitations may be raised or lowered from time
to time, the Adviser shall reimburse the Fund for such excess, provided that
Adviser's reimbursement obligation will be limited to the amount of fees it
receives from the Fund during the period in which such expense limitations were
exceeded, unless otherwise required by applicable laws or regulations. With
respect to portions of a fiscal year in which this contract shall be in effect,
the foregoing limitations shall be prorated according to the proportion which
that portion of the fiscal year bears to the full fiscal year. Any payments
required to be made by this Paragraph 3(b) shall be made once a year promptly
after the end of the Fund's fiscal year.
4. FREEDOM TO DEAL WITH THIRD PARTIES
The Adviser shall be free to render services to others similar to those
rendered under this Agreement or of a different nature except as such services
may conflict with the services to be rendered or the duties to be assumed
hereunder.
5. USE OF NAME "XXXXXXX CAPITAL"
The Adviser hereby grants to the Fund a royalty-free, non-exclusive license
to use the name "Xxxxxxx Capital" in the name of the Fund of any series thereof
for the duration of this Agreement and any extensions or renewals thereof. Such
license may, upon termination of this Agreement, be terminated by the Adviser,
in which event the Fund shall promptly take whatever action may be necessary to
change its name and discontinue any further use of the name "Xxxxxxx Capital" in
the name of the Fund or otherwise. The name "Xxxxxxx Capital" may be used or
licensed by the Adviser in connection with any of its activities or licensed by
the Adviser to any other party.
6. PORTFOLIO TRANSACTIONS AND BROKERAGE
(a) The Adviser is authorized, in arranging the purchase and sale of the
Fund's portfolio securities, to employ or deal with such members of securities
or commodities exchanges, brokers or dealers, (hereinafter "broker-dealers"), as
may, in its best judgment, implement the policy of the Fund to obtain, at
reasonable expense, the "best execution" (prompt and reliable execution at the
most favorable security price obtainable) of the Fund's portfolio transactions
as well as to obtain, consistent with the provisions of subparagraph "(c)" of
this paragraph "6," the benefit of such investment information or research as
will be of significant assistance to the performance by the Adviser of its
investment management functions.
(b) The Adviser shall select broker-dealers to effect the Fund's portfolio
transactions on the basis of its estimate of their ability to obtain best
execution of particular and related portfolio transactions. The abilities of a
broker-dealer to obtain best execution of particular portfolio transaction(s)
will be judged by Adviser on the basis of all relevant factors and
considerations including, insofar as feasible, the execution capabilities
required by the transaction or transactions; the ability and willingness of the
broker-dealer to facilitate the Fund's portfolio transactions by participating
therein for its own account; the importance to the Fund of speed, efficiency or
confidentiality; the broker-dealer's apparent familiarity with sources from or
to whom particular securities might be purchased or sold; as well as any other
matters relevant to the selection of a broker-dealer for particular and related
transactions of the Fund.
(c) Adviser shall have discretion, in the interests of the Fund, to
allocate brokerage on the Fund's portfolio transactions to broker-dealers
qualified to obtain best execution of such transactions who provide brokerage
and/or research services (as such services are defined in Section 28(e)(3) of
the Securities Exchange Act of 1934) for the Fund and/or other accounts
for which Adviser has "investment discretion" (as that term is defined in
Section 3(a)(35) of the Securities Exchange Act of 1934) and to cause the Fund
to pay such broker-dealers a commission for effecting a portfolio transaction
for the Fund that is in excess of the amount of commission another broker-dealer
adequately qualified to effect such transaction would have charged for effecting
that transaction, if the Adviser determines in good faith that such commission
is reasonable in relation to the value of the brokerage and/or research services
provided by such broker-dealer, viewed in terms of either that particular
transaction or the overall responsibilities of Adviser with respect to the
accounts as to which it exercises investment discretion. In reaching such
determination, the Adviser will not be required to place or attempt to place a
specific dollar value on the brokerage and/or research services provided or
being provided by such broker-dealer. In demonstrating that such determinations
were made in good faith, Adviser shall be prepared to show that all commissions
were allocated for the purposes contemplated by this Agreement and that the
total commissions paid by the Fund over a representative period selected by the
Fund's trustees were reasonable in relation to the benefits to the Fund.
(d) The Adviser may aggregate sales and purchase orders of the assets of
the Fund with similar orders being made simultaneously for other accounts
advised by the Adviser. Whenever the Adviser simultaneously places orders to
purchase or sell the same asset on behalf of the Fund and one or more other
accounts advised by the Adviser, the orders will be allocated as to price and
amount among all such accounts in a manner believed to be equitable over time to
each account.
7. ADVISER REPRESENTATIONS AND WARRANTIES
The Adviser represents and warrants that it: (i) is registered as an
investment adviser under the Investment Advisers Act of 1940, as amended
("Advisers Act") (and will continue to be so registered for so long as this
Agreement remains in effect); (ii) is not prohibited by the Investment Company
Act or the Advisers Act from performing the services contemplated by this
Agreement; (iii) has met, and will seek to continue to meet for so long as this
Agreement remains in effect, any other applicable federal or state requirements,
or the applicable requirements of any self-regulatory agency, necessary to be
met in order to perform the services contemplated by this Agreement; and (iv)
will promptly notify the Fund of the occurrence of any event that would
disqualify the Adviser from serving as an investment adviser of an investment
company pursuant to Section 9(a) of the Investment Company Act or otherwise.
8. EFFECTIVE DATE, DURATION AND TERMINATION OF AGREEMENT
Unless sooner terminated as hereinafter provided, this Agreement shall
continue in effect for an initial two year term from the date of its execution
as indicated above and thereafter shall continue in effect for successive
periods of 12 months thereafter, provided that each continuance is specifically
approved annually by (a) the vote of a majority of the Fund's Board of Trustees
who are not parties to the Agreement or interested persons (as defined in the
Investment Company Act of 1940, as amended and the rules, regulations and
releases relating thereto), cast in person at a meeting called for the purpose
of voting on approval and (b) either (i) the vote of a
majority of the outstanding voting securities of the Fund or (ii) the vote of a
majority of the Fund's Board of Trustees.
This Agreement may be terminated at any time without the payment of any
penalty by the vote of the Board of Trustees of the Fund or by the vote of the
holders of a majority of the outstanding shares of the Fund, upon sixty (60)
days written notice to the Adviser. The Adviser may terminate this Agreement
without penalty on ninety (90) days written notice to the Fund. This Agreement
shall automatically terminate in the event of its assignment as defined in the
Investment Company Act of 1940 and the rules thereunder. This Agreement shall
automatically terminate upon completion of the dissolution, liquidation and
winding up of the Fund.
Wherever referred to in this Agreement, the vote or approval of the holders
of a majority of the outstanding shares of the Fund shall mean the vote of 67%
or more of such shares if the holders of more than 50% of such shares are
present in person or by proxy or the vote of more than 50% of such shares,
whichever is less.
9. LIMITATION OF LIABILITY
The Adviser will not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or its shareholders in connection with the
performance of its duties under this Agreement, except a loss resulting from
willful misfeasance, bad faith or negligence on its part in the performance of
its duties or from reckless disregard by it of its duties under this Agreement.
Notwithstanding the above, the Adviser acknowledges that federal and state
securities laws impose liability under certain circumstances when a person acts
in good faith, and nothing herein shall be construed as a limitation or waiver
on any rights that the Fund may have under federal or state securities laws.
10. AMENDMENTS TO AGREEMENT
No material amendment to this Agreement shall be effective until approved
by vote of the holders of a majority of the outstanding shares of the Fund.
11. DISCLAIMER OF SHAREHOLDER LIABILITY
The Adviser understands that the obligations of the Fund under this
Agreement are not binding upon any Trustee or shareholder of the Fund
personally, but bind only the Fund and the Fund's property. The Adviser
represents that it has notice of the provisions of the Declaration of Trust of
the Fund disclaiming shareholder liability for acts or obligations of the Fund.
12. NOTICES
Any notice under this Agreement shall be in writing, addressed, delivered
or mailed, postage prepaid, to the other party at such address as such other
party may designate in writing for receipt of such notice.
IN WITNESS WHEREOF, the Fund and the Adviser have caused this Agreement to
be executed by their duly authorized officers as of the day and year first above
written.
XXXXXXX CAPITAL MUTUAL FUNDS
By: /s/ Xxxxxxx X. Xxxxxx
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Its: President
XXXXXXX CAPITAL ADVISORS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Its: President
fb.us.1353037.02
