Exhibit 5(a)
FORM OF
MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT, dated as of ____________, 1996 between XXXXXXXX
PORTFOLIOS, INC., a Maryland corporation (the "Corporation"), on behalf of
Xxxxxxxx Xxxxxxxxx Global Growth Opportunities Portfolio and Xxxxxxxx Xxxxxxxxx
Global Technology Portfolio (the "Portfolios"), and J. & X. XXXXXXXX & CO.
INCORPORATED, a Delaware corporation (the "Manager").
WHEREAS, the Corporation is an open-end diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Corporation desires to retain the Manager to render or contract to
obtain as hereinafter provided investment management services to the
Corporation, and to administer the business and other affairs of the Corporation
and the Manager is willing to render such services;
Now, therefore, in consideration of the mutual agreements herein made, the
parties hereto agree as follows:
1. DUTIES OF THE MANAGER. The Manager shall, subject to the control of the
Board of Directors of the Corporation, manage the affairs of each Portfolio and
agrees to provide the services described in this Agreement on the terms set
forth herein. The Manager will enter into an agreement dated the date hereof
(the "Subadvisory Agreement") with Xxxxxxxx Xxxxxxxxx Co. (the "Subadviser")
pursuant to which the Subadviser will provide each Portfolio with investment
management services, including investment research, advice and supervision,
determining which securities shall be purchased or sold by each Portfolio,
making purchases and sales of securities on behalf of each Portfolio and
determining how voting and other rights with respect to securities of each
Portfolio shall be exercised, subject in each case to the control of the Board
of Directors of the Corporation and in accordance with the objectives, policies
and principles set forth in the Registration Statement and Prospectus of the
Corporation and the requirements of the 1940 Act and other applicable law. The
Manager will continue to have responsibility for investment management services
provided under the Subadvisory Agreement. In the event the Subadviser ceases to
provide such investment management services to the Corporation, they shall be
provided by the Manager or by such other form as may be selected by the
Corporation and approved in accordance with applicable requirements. In
connection with the performance of its duties hereunder, the Manager shall
provide such office space, such bookkeeping, accounting, internal legal,
clerical, secretarial and administrative
services exclusive of, and in addition to, any such services provided by any
others retained by the Corporation) and such executive and other personnel as
shall be necessary for the operations of the Portfolios. The Corporation
understands that the Manager also acts as the manager of all of the investment
companies in the Xxxxxxxx Group.
Subject to Section 36 of the 1940 Act, the Manager shall not be liable to
the Corporation for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission in the management of
the Portfolios and the performance of its duties under this Agreement except for
willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of reckless disregard of its obligations and duties under
this Agreement.
2. EXPENSES. The Manager shall pay all of its expenses arising from the
performance of its obligations under Section 1 including the fee of the
Subadviser, and, shall pay any salaries, fees and expenses of the directors of
the Corporation who are employees of the Manager or its affiliates. The Manager
shall not be required to pay any other expenses of the Corporation or the
Portfolios, including, but not limited to, direct charges relating to the
purchase and sale of portfolio securities, interest charges, fees and expenses
of independent attorneys and auditors, taxes and governmental fees, cost of
stock certificates and any other expenses (including clerical expenses) of
issue, sale, repurchase or redemption of shares, expenses of registering and
qualifying shares for sale, expenses of printing and distributing reports,
notices and proxy materials to shareholders, expenses of corporate data
processing and related services, shareholder recordkeeping and shareholder
account services, expenses of printing and filing reports and other documents
filed with governmental agencies, expenses of printing and distributing
prospectuses, expenses of annual and special shareholders' meetings, fees and
disbursements of transfer agents and custodians, expenses of disbursing
dividends and distributions, fees and expenses of directors of the Corporation
who are not employees of the Manager or its affiliates, membership dues in the
Investment Company Institute, insurance premiums and extraordinary expenses such
as litigation expenses.
3. COMPENSATION. (a) As compensation for the services performed and the
facilities and personnel provided by the Manager pursuant to Section 1, each
Portfolio will pay to the Manager promptly after the end of each month a fee,
calculated on each day during such month at the annual rate of 1.00% of the
average daily net assets attributable to the Portfolio.
(b) If the Manager shall serve hereunder for less then the whole of any
month, the fee hereunder shall be prorated.
4. PURCHASE AND SALE OF SECURITIES. The Manager or, pursuant to the
Subadvisory Agreement, the Subadviser shall purchase securities from or through
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and sell securities to or through such persons, brokers or dealers (including
the Manager or an affiliate of the Manager) as the Manager and the Subadviser
shall deem appropriate in order to carry out the policy with respect to
allocation of portfolio transactions as set forth in the Registration Statement
and Prospectus(es) of the Corporation or as the Board of Directors of the
Corporation may direct from time to time. In providing the Portfolios with
investment management and supervision, it is recognized that the Manager or the
Subadviser will seek the most favorable price and execution, and, consistent
with such policy, may give consideration to the research, statistical and other
services furnished by brokers or dealers to the Manager or the Subadviser for
its use, to the general attitude of brokers or dealers toward investment
companies and their support of them, and to such other considerations as the
Board of Directors of the Corporation may direct or authorize from time to time.
Notwithstanding the above, it is understood that it is desirable for the
Portfolios that the Manager and the Subadviser have access to supplemental
investment and market research and security and economic analysis provided by
brokers who execute brokerage transactions at a higher cost to the Portfolios
than may result when allocating brokerage to other brokers on the basis of
seeking the most favorable price and execution. Therefore, the Manager and the
Subadviser are authorized to place orders for the purchase and sale of
securities for the Portfolios with such brokers, subject to review by the
Corporation's Board of Directors from time to time with respect to the extent
and continuation of this practice. It is understood that the services provided
by such brokers may be useful to the Manager and the Subadviser in connection
with their services to other clients as well as the Portfolios.
The placing of purchase and sale orders may be carried out by the Manager
or the Subadviser or any wholly-owned subsidiary of the Manager.
If, in connection with purchases and sales of securities for the
Portfolios, the Manager or any subsidiary of the Manager may, without material
risk, arrange to receive a soliciting dealer's fee or other underwriter's or
dealer's discount or commission, the Manager shall, unless otherwise directed by
the Board of Directors of the Corporation, obtain such fee, discount or
commission and the amount thereof shall be applied to reduce the compensation to
be received by the Manager pursuant to Section 3 hereof.
Nothing herein shall prohibit the Board of Directors of the Corporation
from approving the payment by the Portfolios of additional compensation to
others for consulting services, supplemental research and security and economic
analysis.
5. TERM OF AGREEMENT. This Agreement shall continue in full force and
effect until December 31, 1998, and from year to year thereafter if such
continuance is approved in the manner required by the 1940 Act if the Manager
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shall not have notified the Portfolios in writing at least 60 days prior to such
December 31 or prior to December 31 of any year thereafter that it does not
desire such continuance. This Agreement may be terminated at any time with
respect to one or both Portfolis, without payment of any penalty by the
Corporation, on 60 days' written notice to the Manager by vote of the Board of
Directors of the Corporation or by vote of a majority of the outstanding voting
securities of the Portfolio (as defined by the 1940 Act). The failure of the
Board of Directors of the Corporation or holders of securities of one Portfolio
to approve the continuance of this Agreement with respect to one Portfolio,
shall be without prejudice to the effectiveness of this Agreement with respect
to the other Portfolio. This Agreement will automatically terminate in the event
of its assignment (as defined by the 1940 Act).
6. RIGHT OF MANAGER IN CORPORATE NAME. The Manager and the Corporation each
agree that the word "Xxxxxxxx", which comprises a component of the Corporation's
and both Portfolios' names, is a property right of the Manager. Each Portfolio
agrees and consents that (i) it will only use the word "Xxxxxxxx" as a component
of its corporate name and for no other purpose, (ii) it will not purport to
grant to any third party the right to use the word "Xxxxxxxx" for any purpose,
(iii) the Manager or any corporate affiliate of the Manager may use or grant to
others the right to use the word "Xxxxxxxx", 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, and at the request of the Manager, the Corporation and the Portfolio
will take such action as may be required to provide its consent to the use of
the word "Xxxxxxxx", or any combination or abbreviation thereof, by the Manager
or any corporate affiliate of the Manager, or by any person to whom the Manager
or an affiliate of the Manager shall have granted the right to such use; and
(iv) upon the termination of any management agreement into which the Manager and
the Corporation may enter, the Corporation and the Portfolio shall, upon request
by the Manager, promptly take such action, at its own expense, as may be
necessary to change its corporate name to one not containing the word "Xxxxxxxx"
and following such change, shall not use the word Xxxxxxxx, or any combination
thereof, as a part of its corporate name or for any other commercial purpose,
and shall use its best efforts to cause its officers, trustees and shareholders
to take any and all actions which the Manager may request to effect the
foregoing and to reconvey to the Manager any and all rights to such word.
7. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require, or
to impose any duty upon either of the parties, to do anything in violation of
any applicable laws or regulations.
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IN WITNESS WHEREOF, the Corporation on behalf of the Portfolios and the
Manager have caused this Agreement to be executed by their duly authorized
officers as of the date first above written.
XXXXXXXX PORTFOLIOS, INC.
BY _________________________________
J. & X. XXXXXXXX & CO. INCORPORATED
BY _________________________________
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Exhibit 5(b)
FORM OF
SUBADVISORY AGREEMENT
SUBADVISORY AGREEMENT, dated as of ____________, 1996 between J. & X. XXXXXXXX &
CO. INCORPORATED, a Delaware Corporation (the "Manager") and XXXXXXXX XXXXXXXXX
CO., a New York general partnership (the "Subadviser").
WHEREAS, the Manager has entered into a Management Agreement dated ____________,
1996 (the "Management Agreement") with Xxxxxxxx Portfolios, Inc. (the
"Corporation"), an open-end diversified management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), on behalf
of the Xxxxxxxx Xxxxxxxxx Global Growth Opportunities Portfolio and the Xxxxxxxx
Xxxxxxxxx Global Technology Portfolio of the Corporation (the "Portfolios"),
pursuant to which the Manager will render or contract to obtain as hereinafter
provided investment management services to each Portfolio, and to administer the
business and other affairs of each Portfolio; and
WHEREAS, the Manager desires to retain the Subadviser to provide investment
management services to each Portfolio, and the Subadviser is willing to render
such investment management services.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
1. DUTIES OF THE SUBADVISER. The Subadviser will provide each Portfolio
with investment management services, including investment research, advice and
supervision, determining which securities shall be purchased or sold by each
Portfolio, making purchases and sales of securities on behalf of each Portfolio
and determining how voting and other rights with respect to securities of each
Portfolio shall be exercised, subject in each case to the control of the Board
of Directors of the Corporation and in accordance with the objectives, policies
and principles set forth in the Registration Statement and Prospectus(es) of the
Corporation and the requirements of the 1940 Act and other applicable law.
Subject to Section 36 of the 1940 Act, the Subadviser shall not be liable
to the Corporation for any error of judgment or mistake of law or for any loss
arising out of any investment or for any act or omission in the management of
the Corporation and the performance of its duties under this Agreement except
for willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of reckless disregard of its obligations and duties under
this Agreement.
2. EXPENSES. The Subadviser shall pay all of its expenses arising from the
performance of its obligations under Section 1.
3. COMPENSATION. (a) As compensation for the services performed and the
facilities personnel provided by the Manager pursuant to Section 1, the Manager
will pay to the Subadviser each month a fee, calculated on each day during such
month, at an annual rate .90% of each Portfolios' average daily net assets.
(b) If the Subadviser shall serve hereunder for less than the whole of any
month, the fee hereunder shall be prorated,
4. PURCHASE AND SALE OF SECURITIES. The Subadviser shall purchase
securities from or through and sell securities to or through such persons,
brokers or dealers as the Subadviser shall deem appropriate in order to carry
out the policy with respect to allocation of portfolio transactions as set forth
in the Registration Statement and Prospectus(es) of the Corporation or as the
Board of Directors of the Corporation may direct from time to time. In Providing
the Portfolios with investment management and supervision, it is recognized that
the Subadviser will seek the most favorable price and execution, and, consistent
with such policy, may give consideration to the research, statistical and other
services furnished by brokers or dealers to the Subadviser for its use, to the
general attitude of brokers or dealers toward investment companies and their
support of them, and to such other considerations as the Board of Directors of
the Corporation may direct or authorize from time to time.
Notwithstanding the above, it is understood that it is desirable for the
Portfolios that the Subadviser have access to supplemental investment and market
research and security and economic analysis provided by brokers who execute
brokerage transactions at a higher cost to the Portfolios than may result when
allocating brokerage to other brokers on the basis of seeking the most favorable
price and execution. Therefore, the Subadviser is authorized to place orders for
the purchase and sale of securities of the Portfolios with such brokers, subject
to review by the Corporation's Board of Directors from time to time with respect
to the extent and continuation of this practice. It is understood that the
services provided by such brokers may be useful to the Subadviser in connection
with its services to other clients as well as the Portfolios.
If, in connection with purchases and sales of securities for the
Portfolios, the Subadviser may, without material risk, arrange to receive a
soliciting dealer's fee or other underwriter's or dealer's discount or
commission, the Subadviser shall, unless otherwise directed by the Board of
Directors of the Corporation, obtain such fee, discount or commission and the
amount thereof shall be applied to reduce the compensation to be received by the
Subadviser pursuant to Section 3 hereof.
Nothing herein shall prohibit the Board of Directors of the Corporation
from approving the payment by the Portfolios of additional compensation to
others for consulting services, supplemental research and security and economic
analysis.
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5. TERM OF AGREEMENT. This Agreement shall continue in full force and
effect until December 31, 1996, and from year to year thereafter if such
continuance is approved in the manner required by the 1940 Act if the Subadviser
shall not have notified the Manager in writing at least 60 days prior to such
December 31 or prior to December 31 of any year thereafter that it does not
desire such continuance. This Agreement may be terminated at any time, without
payment of penalty by the Corporation, on 60 days written notice to the
Subadviser by vote of the Board of Directors of the Corporation or by vote of a
majority of the outstanding voting securities of the Portfolio (as defined by
the 1940 Act). The failure of the Board of Directors of the Corporation or
holders of securities of one Portfolio to approve the continuance of this
Agreement with respect to one Portfolio, shall be without prejudice to the
effectiveness of this Agreement with respect to the other Portfolio. This
Agreement will automatically terminate in the event of its assignment (as
defined by the 0000 Xxx) or upon termination of the Management Agreement.
6. AMENDMENTS. This Agreement may be amended by consent of the parties
hereto provided that the consent of the Corporation is obtained in accordance
with the requirements of the 1940 Act.
7. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require, or
to impose any duty upon either of the parties, to do anything in violation of
any applicable laws or regulations.
IN WITNESS WHEREOF, the Manager and the Subadviser have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
J. & X. XXXXXXXX & CO. INCORPORATED
BY: __________________________________
XXXXXXXX XXXXXXXXX CO.
BY: __________________________________
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