EXHIBIT 99(D12)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 10TH day of DECEMBER, 1998 by and between THE XXXXXXX FUNDS,
a Delaware Business Trust (the "Trust") and XXXXXXX PARTNERS, INC., a Delaware
corporation (the "Advisor").
1. DUTIES OF THE ADVISOR. The Trust hereby appoints the Advisor to act as
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investment advisor to the EMERGING MARKETS EQUITY FUND for the period and on
such terms set forth in this Agreement. The Trust employs the Advisor to manage
the investment and reinvestment of the assets of the Series, to continuously
review, supervise and administer the investment program of the Series, to
determine in its discretion the assets to be held uninvested, to provide the
Trust with records concerning the Advisor's activities which the Trust is
required to maintain, and to render regular reports to the Trust's officers and
Board of Trustees concerning the Advisor's discharge of the foregoing
responsibilities. The Advisor shall discharge the foregoing responsibilities
subject to the control of the officers and the Board of Trustees of the Trust,
and in compliance with the objectives, policies and limitations set forth in the
Trust's Prospectus and Statement of Additional Information. The Advisor accepts
such employment and agrees to render the services and to provide, at its own
expense, the office space, furnishings, equipment and the personnel required by
it to perform the services on the terms and for the compensation provided
herein. With respect to foreign securities, at its own expense, the Advisor may
obtain statistical and other factual information and advice regarding economic
factors and trends from its foreign subsidiaries, but it may not generally
receive advice or recommendations regarding the purchase or sale of securities
from such subsidiaries.
2. PORTFOLIO TRANSACTIONS. The Advisor shall provide the Series with a
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trading department and with respect to foreign securities, the Advisor is
authorized to utilize the trading department of its foreign subsidiaries. The
Advisor shall select, and with respect to its foreign subsidiaries, shall
monitor the selection of, the brokers or dealers that will execute the purchases
and sales of securities for the Series and is directed to use its best efforts
to ensure that the best available price and most favorable execution of
securities transactions for the Series are obtained. Subject to policies
established by the Board of Trustees of the Trust and communicated to the
Advisor, it is understood that the Advisor will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or in respect of
the Series, or be in breach of any obligation owing to the Trust or in respect
of the Series under this Agreement, or otherwise, solely by reason of its having
caused the Series to pay a member of a securities exchange, a broker or a dealer
a commission for effecting a securities transaction for the Series in excess of
the amount of commission another member of an exchange, broker or dealer would
have charged if the Advisor determines in good faith that the commission paid
was reasonable in relation to the brokerage or research services provided by
such member, broker or dealer, viewed in terms of that particular transaction or
the Advisor's overall responsibilities with respect to the accounts, including
the Series, as to which it exercises investment discretion. The Advisor will
promptly communicate to the officers and directors of the Trust such information
relating to the Series transactions as they may reasonably request.
3. COMPENSATION OF THE ADVISOR. For the services to be rendered by the
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Advisor as provided in Section 1 and 2 of this Agreement, the Emerging Markets
Equity Fund shall pay to the Advisor annual management fees of 1.10%, calculated
on the Series' daily net assets to be paid to the Advisor within five business
days after the end of each month.
In the event of termination of this Agreement, the fee provided in this
Section 3 shall be paid on a pro rata basis, based on the number of days when
this Agreement was in effect.
4. REPORTS. The Series and the Advisor agree to furnish to each other such
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information regarding their operations with regard to their affairs as each may
reasonably request.
5. STATUS OF ADVISOR. The services of the Advisor to the Series are not to
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be deemed exclusive, and the Advisor shall be free to render similar services to
others so long as its services to the Series are not impaired thereby.
6. LIABILITY OF ADVISOR. In the absence of willful misfeasance, bad faith,
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gross negligence or reckless disregard by the Advisor of its obligations and
duties hereunder, the Advisor shall not be subject to any liability whatsoever
to the Series, or to any shareholder of the Series, for any error of judgment,
mistake of law or any other act or omission in the course of, or connected with,
rendering services hereunder including, without limitation, for any losses that
may be sustained in connection with the purchase, holding, redemption or sale of
any security on behalf of the Series.
7. DURATION AND TERMINATION. This Agreement shall become effective on
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DECEMBER 10, 1998 provided that first it is approved by the Board of Trustees of
the Trust, including a majority of those trustees who are not parties to this
Agreement or interested persons of any party hereto, in the manner provided in
Section 15(c) of the Investment Company Act of 1940, and by the holders of a
majority of the outstanding voting securities of the Series; and shall continue
in effect until DECEMBER 10, 2000. Thereafter, this Agreement may continue in
effect only if such continuance is approved at least annually by: (i) the
Trust's Board of Trustees or, (ii) by the vote of a majority of the outstanding
voting securities of the Series; and in either event by a vote of a majority of
those trustees of the Trust who are not parties to this Agreement or interested
persons of any such party in the manner provided in Section 15(c) of the
Investment Company Act of 1940. This Agreement may be terminated by the Trust
at any time, without the payment of any penalty, by the Board of Trustees of the
Trust or by vote of the holders of a majority of the outstanding voting
securities of the Series on 60 days' written notice to the Advisor. This
Agreement may be terminated by the Advisor at any time, without the payment of
any penalty, upon 60 days' written notice to the Trust. This Agreement will
automatically terminate in the event of its assignment. Any notice under this
Agreement shall be given in writing, addressed and delivered or mailed postpaid,
to the other party at the principal office of such party.
As used in this Section 8, the terms "assignment", "interested person", and "a
vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and Section
2(a)(42) of the 1940 Act and Rule 18f-2 thereunder.
8. NAME OF ADVISOR. The parties agree that the Advisor has a proprietary
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interest in the name "Xxxxxxx," and the Trust agrees to promptly take such
action as may be necessary to delete from its corporate name and/or the name of
the Series any reference to the name of the Advisor promptly after receipt from
the Advisor of a written request therefore.
9. SEVERABILITY. If any provisions of this Agreement shall be held or made
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invalid by a court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of this 10TH of DECEMBER, 1998.
ATTEST: THE XXXXXXX FUNDS
By: /s/ Xxxxx X. Xxxxx By: /s/ E. Xxxxxx XxXxxxxx
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Xxxxx X. Xxxxx X. Xxxxxx XxXxxxxx
Assistant Secretary President
ATTEST: XXXXXXX PARTNERS, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx, Xx.
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Xxxx X. Xxxxxx Xxxxx Xxxxx, Xx.
Assistant Secretary Treasurer
