ADVISORY AGREEMENT
This ADVISORY AGREEMENT ("Agreement") is made this 1st
day of December, 2005, by and between Xxxxx Xxxxxx
Investment Trust, a Massachusetts Business Trust (the
"Trust") and TIMCO Asset Management, Inc., a Connecticut
corporation (the "Manager").
WHEREAS, the Trust is 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 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 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 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. It 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 referred to above, 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 direction from the Board, the investment
program to be provided hereunder may entail the investment
of all or substantially all of the assets of a 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) to the Funds 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 a 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 a 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) The Fund hereby authorizes any entity or person
associated with the Manager 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 Securities Exchange Act of 1934, as
amended, 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 a Fund
and another account advised by the Manager or its
affiliates, except in each case as permitted by the 1940 Act
and in accordance with such policies and procedures as may
be adopted by a 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 one or more investment
subadvisers, including without limitation, affiliates of the
Manager, in which the Manager delegates to such investment
subadvisers any or all 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 and further provided that such contracts impose
on any investment subadviser bound thereby all the
conditions to which the Manager is subject hereunder and
that such contracts are entered into in accordance with and
meet all applicable requirements of the 1940 Act.
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. 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
any such records 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 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
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 Fund shall receive from the Trust or 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 that 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 that proportion of such average
daily net assets as 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.
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 a Fund, provided
that nothing in this Agreement shall protect the Manager
against any liability to the Fund 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 a 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 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 Trust's Board 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 for two years from the above written
date. 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 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 New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly
authorized.
XXXXX XXXXXX INVESTMENT TRUST
By:_______________________________
Name: R. Xxx Xxxxxx
Title: Chairman
TIMCO ASSET MANAGEMENT, INC.
By:_______________________________
Name: Xxxxxx Xxxxxx
Title: President and Chief
Executive Officer
Schedule A
Xxxxx Xxxxxx S&P 500 Index Fund
Fee:
The following percentage of the Fund's average daily net
assets:
0.15
