FORM OF INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
FORM
OF
This
INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT (the “Agreement”) is made this ___
day of _________, 2010, by and between Xxxx Xxxxx Global Asset Management Trust
(the “Trust”) and Xxxx Xxxxx Capital Management, Inc., a Maryland corporation
(the “Manager”).
WHEREAS,
the Trust is a Maryland business trust registered as a management investment
company under the Investment Company Act of 1940, as amended (the “1940
Act”);
WHEREAS,
the Manager is engaged primarily in rendering investment advisory, management
and administrative services and is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended;
WHEREAS,
the Trust wishes to retain the Manager to provide investment advisory,
management, and administrative services to the Trust with respect to the series
of the Trust designated in Schedule A annexed hereto (the “Fund”);
and
WHEREAS,
the Manager is willing to furnish such services on the terms and conditions
hereinafter set forth;
NOW
THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed as follows:
1. The
Trust hereby appoints the Manager to act as investment adviser and administrator
of the Fund for the period and on the terms set forth in this Agreement. The
Manager accepts such appointment and agrees to render the services herein set
forth, for the compensation herein provided.
2. The
Fund shall at all times keep the Manager fully informed with regard to the
securities owned by it, its funds available, or to become available, for
investment, and generally as to the condition of its affairs. The Fund shall
furnish the Manager with such other documents and information with regard to its
affairs as the Manager may from time to time reasonably request.
3.
(a) Subject to the supervision of the Trust’s Board of Trustees (the
“Board”), the Manager shall regularly provide the Fund with investment research,
advice, management and supervision and shall furnish a continuous investment
program for the Fund’s portfolio of securities and other investments consistent
with the Fund’s investment objectives, policies and restrictions, as stated in
the Fund’s current Prospectus and Statement of Additional Information. The
Manager shall determine from time to time what securities and other investments
will be purchased, retained, sold or exchanged by the Fund and what portion of
the assets of the Fund’s portfolio will be held in the various securities and
other investments in which the Fund invests, and shall implement those
decisions, all subject to the provisions of the Trust’s Declaration of Trust and
By-Laws (collectively, the “Governing Documents”), the 1940 Act, and the
applicable rules and regulations promulgated thereunder by the Securities and
Exchange Commission (the “SEC”) and interpretive guidance issued thereunder by
the SEC staff and any other applicable federal and
state
law, as well as the investment objectives, policies and restrictions of the
Fund, and any other specific policies adopted by the Board and disclosed to the
Manager. The Manager is authorized as the agent of the Trust to give
instructions to the custodian of the Fund as to deliveries of securities and
other investments and payments of cash for the account of the Fund. Subject to
applicable provisions of the 1940 Act and the rules and regulations promulgated
thereunder and direction from the Board, the investment program to be provided
hereunder may entail the investment of all or substantially all of the assets of
the Fund in one or more investment companies. The Manager will place orders
pursuant to its investment determinations for the Fund either directly with the
issuer or with any broker or dealer, foreign currency dealer, futures commission
merchant or others selected by it. In connection with the selection of such
brokers or dealers and the placing of such orders, subject to applicable law,
brokers or dealers may be selected who also provide brokerage and research
services (as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) to the Fund and/or the
other accounts over which the Manager or its affiliates exercise investment
discretion. The Manager is authorized to pay a broker or dealer who provides
such brokerage and research services a commission for executing a portfolio
transaction for the Fund which is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if the
Manager determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer. This determination may be viewed in terms of either that
particular transaction or the overall responsibilities which the Manager and its
affiliates have with respect to accounts over which they exercise investment
discretion. The Board may adopt policies and procedures that modify and restrict
the Manager’s authority regarding the execution of the Fund’s portfolio
transactions provided herein. The Manager shall also provide advice and
recommendations with respect to other aspects of the business and affairs of the
Fund, shall exercise voting rights, rights to consent to corporate action and
any other rights pertaining to the Fund’s portfolio securities subject to such
direction as the Board may provide, and shall perform such other functions of
investment management and supervision as may be directed by the
Board.
(b)
Subject to the supervision of the Board, the Manager shall perform such
administrative and management services as may from time to time be reasonably
requested by the Fund as necessary for the operation of the Fund, such as
(i) supervising the overall administration of the Fund, including
negotiation of contracts and fees with and the monitoring of performance and
xxxxxxxx of the Fund’s transfer agent, shareholder servicing agents, custodian
and other independent contractors or agents, (ii) providing certain
compliance, fund accounting, regulatory reporting, and tax reporting services,
(iii) preparing or participating in the preparation of Board materials,
registration statements, proxy statements and reports and other communications
to shareholders, (iv) maintaining the Fund’s existence, and (v) during
such times as shares are publicly offered, maintaining the registration and
qualification of the Fund’s shares under federal and state laws. Notwithstanding
the foregoing, the Manager shall not be deemed to have assumed any duties with
respect to, and shall not be responsible for, the distribution of the shares of
the Fund, nor shall the Manager be deemed to have assumed or have any
responsibility with respect to functions specifically assumed by any transfer
agent, fund accounting agent, custodian, shareholder servicing agent or other
agent, in each case employed by the Fund to perform such
functions.
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(c) The
Fund hereby authorizes any entity or person associated with the Manager, any
investment adviser or any investment subadviser which is a member of a national
securities exchange to effect any transaction on the exchange for the account of
the Fund which is permitted by Section 11(a) of the Exchange Act and Rule
11a2- 2(T) thereunder, and the Fund hereby consents to the retention of
compensation for such transactions in accordance with Rule 11a2-2(T)(a)(2)(iv).
Notwithstanding the foregoing, the Manager agrees that it will not deal with
itself, or with members of the Board or any principal underwriter of the Fund,
as principals or agents in making purchases or sales of securities or other
property for the account of the Fund, nor will it purchase any securities from
an underwriting or selling group in which the Manager or its affiliates is
participating, or arrange for purchases and sales of securities between the Fund
and another account advised by the Manager or its affiliates, except in each
case as permitted by the 1940 Act and the rules and regulations promulgated
thereunder and in accordance with such policies and procedures as may be adopted
by the Fund from time to time, and will comply with all other provisions of the
Governing Documents and the Fund’s then-current Prospectus and Statement of
Additional Information relative to the Manager and its directors and
officers.
4.
Subject to the Board’s approval, the Manager or the Fund may enter into
contracts with an investment subadviser or one or more subadministrators,
including without limitation, affiliates of the Manager, in which the Manager
delegates to such investment subadviser or subadministrators any or all of its
duties specified hereunder, on such terms as the Manager will determine to be
necessary, desirable or appropriate, provided that in each case the Manager
shall supervise the activities of each such subadviser or subadministrator and
further provided that such contracts impose on such investment subadviser or
subadministrator bound thereby all the conditions to which the Manager is
subject and that such contracts are entered into in accordance with and meet all
applicable requirements of the 1940 Act and the rules and regulations
promulgated thereunder.
5.
(a) The Manager, at its expense, shall supply the Board and officers of the
Trust with all information and reports reasonably required by them and
reasonably available to the Manager and shall furnish the Fund with office
facilities, including space, furniture and equipment and all personnel
reasonably necessary for the operation of the Fund. The Manager shall oversee
the maintenance of all books and records with respect to the Fund’s securities
transactions and the keeping of the Fund’s books of account in accordance with
all applicable federal and state laws and regulations. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, the Manager hereby agrees that
any records that it maintains for the Fund are the property of the Fund, and
further agrees to surrender promptly to the Fund any of such records upon the
Fund’s request. The Manager further agrees to arrange for the preservation of
the records required to be maintained by Rule 31a-1 under the 1940 Act for the
periods prescribed by Rule 31a-2 under the 1940 Act. The Manager shall authorize
and permit any of its directors, officers and employees, who may be elected as
Board members or officers of the Fund, to serve in the capacities in which they
are elected.
(b) The
Manager shall bear all expenses, and shall furnish all necessary services,
facilities and personnel, in connection with its responsibilities under this
Agreement. Other than as herein specifically indicated, the Manager shall not be
responsible for the Fund’s expenses, including, without limitation, advisory
fees; distribution fees; interest; taxes; governmental fees;
voluntary
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assessments
and other expenses incurred in connection with membership in investment company
organizations; organization costs of the Fund; the cost (including brokerage
commissions, transaction fees or charges, if any) in connection with the
purchase or sale of the Fund’s securities and other investments and any losses
in connection therewith; fees and expenses of custodians, transfer agents,
registrars, independent pricing vendors or other agents; legal expenses; loan
commitment fees; expenses relating to share certificates; expenses relating to
the issuing and redemption or repurchase of the Fund’s shares and servicing
shareholder accounts; expenses of registering and qualifying the Fund’s shares
for sale under applicable federal and state law; expenses of preparing, setting
in print, printing and distributing summary prospectuses, prospectuses and
statements of additional information and any supplements thereto, reports, proxy
statements, notices and dividends to the Fund’s shareholders; costs of
stationery; website costs; costs of meetings of the Board or any committee
thereof, meetings of shareholders and other meetings of the Fund; Board fees;
audit fees; travel expenses of officers, members of the Board and employees of
the Fund, if any; and the Fund’s pro rata portion of premiums on any fidelity
bond and other insurance covering the Fund and its officers, Board members and
employees; litigation expenses and any non-recurring or extraordinary expenses
as may arise, including, without limitation, those relating to actions, suits or
proceedings to which the Fund is a party and the legal obligation which the Fund
may have to indemnify the Fund’s Board members and officers with respect
thereto.
6. No
member of the Board, officer or employee of the Trust or the Fund shall receive
from the Trust or the Fund any salary or other compensation as such member of
the Board, officer or employee while he is at the same time a director, officer,
or employee of the Manager or any affiliated company of the Manager, except as
the Board may decide. This paragraph shall not apply to Board members, executive
committee members, consultants and other persons who are not regular members of
the Manager’s or any affiliated company’s staff.
7. As
compensation for the services performed and the facilities furnished and
expenses assumed by the Manager, including the services of any consultants
retained by the Manager, the Fund shall pay the Manager, as promptly as possible
after the last day of each month, a fee, computed daily at an annual rate set
forth opposite the Fund’s name on Schedule A annexed hereto, provided however,
that if the Fund invests all or substantially all of its assets in another
registered investment company for which the Manager or an affiliate of the
Manager serves as investment adviser or investment manager, the annual fee
computed as set forth on such Schedule A shall be reduced by the aggregate
management fees allocated to the Fund for the Fund’s then-current fiscal year
from such other registered investment company. The first payment of
the fee shall be made as promptly as possible at the end of the month succeeding
the effective date of this Agreement, and shall constitute a full payment of the
fee due the Manager for all services prior to that date. If this Agreement
is terminated as of any date not the last day of a month, such fee shall be paid
as promptly as possible after such date of termination, shall be based on the
average daily net assets of the Fund in that period from the beginning of such
month to such date of termination, and shall be prorated according to the ratio
that the number of business days in such period bears to the number of business
days in such month. The average daily net assets of the Fund shall in all cases
be based only on business days and be computed as of the time of the regular
close of business of the New York Stock Exchange, or such other time as may be
determined by the Board.
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8. The
Manager assumes no responsibility under this Agreement other than to render the
services called for hereunder, in good faith, and shall not be liable 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 execution of securities
transactions for the Fund, provided that nothing in this Agreement shall protect
the Manager against any liability to the Fund or its shareholders to which the
Manager would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of its duties or by reason of its
reckless disregard of its obligations and duties hereunder. As used in this
Section 8, the term “Manager” shall include any affiliates of the Manager
performing services for the Trust or the Fund contemplated hereby and the
partners, shareholders, directors, officers and employees of the Manager and
such affiliates.
9.
Nothing in this Agreement shall limit or restrict the right of any director,
officer, or employee of the Manager who may also be a Board member, officer, or
employee of the Trust or the Fund, to engage in any other business or to devote
his time and attention in part to the management or other aspects of any other
business, whether of a similar nature or a dissimilar nature, nor to limit or
restrict the right of the Manager to engage in any other business or to render
services of any kind, including investment advisory and management services, to
any other fund, firm, individual or association. If the purchase or sale of
securities consistent with the investment policies of the Fund or one or more
other accounts of the Manager is considered at or about the same time,
transactions in such securities will be allocated among the accounts in a manner
deemed equitable by the Manager. Such transactions may be combined, in
accordance with applicable laws and regulations, and consistent with the
Manager’s policies and procedures as presented to the Board from time to
time.
10. For
the purposes of this Agreement, the Fund’s “net assets” shall be determined as
provided in the Fund’s then-current Prospectus and Statement of Additional
Information and the terms “assignment,” “interested person,” and “majority of
the outstanding voting securities” shall have the meanings given to them by
Section 2(a) of the 1940 Act, subject to such modifications or exemptions
as may be granted by the SEC by any rule, regulation or order.
11. This
Agreement will become effective with respect to the Fund on the date set forth
opposite the Fund’s name on Schedule A annexed hereto, provided that it shall
have been approved by the Board, including the separate vote of a majority of
the Board members who are not interested persons of any party to this Agreement,
and by the shareholders of the Fund in accordance with the requirements of the
1940 Act and, unless sooner terminated as provided herein, will continue in
effect until _____, 2012. Thereafter, if not terminated, this Agreement shall
continue in effect with respect to the Fund, so long as such continuance is
specifically approved at least annually (i) by the Board or (ii) by a
vote of a majority of the outstanding voting securities of the Fund, provided
that in either event the continuance is also approved by a majority of the Board
members who are not interested persons of any party to this Agreement, by vote
cast in person at a meeting called for the purpose of voting on such
approval.
12. This
Agreement is terminable with respect to the Fund without penalty by the Board or
by vote of a majority of the outstanding voting securities of the Fund, in each
case on not more than 60 days’ nor less than 30 days’ written notice to the
Manager, or by the Manager upon not less than 90 days’ written notice to the
Fund, and will be terminated upon the mutual written consent of the Manager and
the Trust. This Agreement shall terminate automatically in the
event
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of its
assignment by the Manager and shall not be assignable by the Trust without the
consent of the Manager.
13. The
Manager agrees that for services rendered to the Fund, or for any claim by it in
connection with services rendered to the Fund, it shall look only to assets of
the Fund for satisfaction and that it shall have no claim against the assets of
any other portfolios of the Trust. The undersigned officer of the Trust has
executed this Agreement not individually, but as an officer under the Trust’s
Declaration of Trust, and the obligations of this Agreement are not binding upon
any of the Trustees, officers or shareholders of the Trust
individually.
14. No
provision of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought, and no
material amendment of the Agreement shall be effective until approved, if so
required by the 1940 Act, by vote of the holders of a majority of the Fund’s
outstanding voting securities.
15. This
Agreement embodies the entire agreement and understanding between the parties
hereto, and supersedes all prior agreements and understandings relating to the
subject matter hereof. Should any part of this Agreement be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding on and shall
inure to the benefit of the parties hereto and their respective
successors.
16. This
Agreement shall be construed and the provisions thereof interpreted under and in
accordance with the laws of the State of Maryland.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their officers thereunto duly authorized.
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XXXX
XXXXX GLOBAL ASSET MANAGEMENT TRUST
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By:____________________________
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Name: R.
Xxx Xxxxxx
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Title: Vice
President
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XXXX
XXXXX CAPITAL MANAGEMENT, INC.
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By:____________________________
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Name: Xxxx
X’Xxxxxxxxx
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Title: Vice
President
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Schedule
A
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Fund
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Effective
Date
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Fee
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Xxxx
Xxxxx Capital Management Research Fund
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_______,
2010
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0.70%
up to the first $1 billion of the fund’s average daily net assets; 0.68%
on the fund’s average daily net assets between $1 billion and $2 billion;
0.65% on the fund’s average daily net assets between $2 billion and $5
billion; 0.62% on the fund’s average daily net assets between $5 billion
and $10 billion; and 0.59% of the fund’s average daily net assets
exceeding $10 billion
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