INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT OF THE MARSICO INTERNATIONAL OPPORTUNITIES FUND OF THE MARSICO INVESTMENT FUND
Exhibit
(d)(4)
OF
THE XXXXXXX INTERNATIONAL OPPORTUNITIES FUND
OF
THE XXXXXXX INVESTMENT FUND
AGREEMENT,
made the 14th
day of December, 2007, between The Xxxxxxx Investment Fund (the “Trust”), on
behalf of the Xxxxxxx International Opportunities Fund (the “Fund”), and Xxxxxxx
Capital Management, LLC (“MCM”), a Delaware limited liability
company.
WHEREAS,
the Trust is a Delaware business trust authorized to issue shares in series
and
is registered as an open-end management investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”), and the Fund is a series of
the Trust;
WHEREAS,
MCM is registered as an investment adviser under the Investment Advisers Act
of
1940, as amended (“Advisers Act”); and
WHEREAS,
the Trust wishes to retain MCM to render investment management services to
the
Fund, and MCM is willing to furnish such services to the
Fund;
NOW
THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM as
follows:
1. Appointment
The
Trust
hereby appoints MCM to act as investment adviser and manager of the Fund for
the
periods and on the terms set forth herein. MCM accepts the appointment and
agrees to furnish the services set forth herein for the compensation provided
herein.
2. Services
as Investment Adviser
Subject
to the
general supervision and direction of the Board of Trustees of the Trust, MCM
will (a) manage the Fund in accordance with the Fund’s investment objectives and
policies as stated in the Fund’s Prospectus and the Statement of Additional
Information filed with the Securities and Exchange Commission, as they may
be
amended from time to time; (b) make investment decisions for the Fund; (c)
place
purchase and sale orders on behalf of the Fund; and (d) employ portfolio
managers and securities analysts to provide research services to the Fund.
In
providing those services, MCM will provide the Fund with ongoing research,
analysis, advice, and judgments regarding individual investments, general
economic conditions and trends and long-range investment policy. In
addition, MCM will furnish the Fund with whatever statistical information the
Fund may reasonably request with respect to the securities that the Fund may
hold or contemplate purchasing.
3. Services
as Manager
Subject
to the
general supervision and direction of the Board of Trustees of the Trust, MCM
will (a) assist in supervising and managing all aspects of the Fund’s
operations; (b) maintain such books and records as an adviser of the Fund may
be
required by applicable federal or state law, and assist as appropriate in the
maintenance of the Fund’s own books and records by the Fund’s independent
administrator and other third parties approved by the Trust; (c) supply the
Fund
with office facilities, data processing services, clerical, accounting and
bookkeeping services, internal executive and management services, and stationery
and office supplies, with the aid of other service providers including the
Fund’s independent administrator; (d) prepare, file, and arrange for the
distribution of proxy materials and periodic reports to the shareholders of
the
Fund as required by applicable law or supervise, as the case may be, the
preparation, filing, and distribution of proxy materials by third parties
including the Fund’s independent administrator to the shareholders of the Fund
as required by applicable law; (e) prepare or supervise the preparation by
third
parties approved by the Trust including the Fund’s independent administrator of
all federal, state, and local tax returns and reports of the Fund required
by
applicable law; (f) prepare and arrange for the filing of such registration
statements and other documents as the Securities and Exchange Commission and
other federal and state regulatory authorities may require by applicable law,
with the aid of other service providers including the Fund’s independent
administrator; (g) render to the Board of Trustees of the Trust such periodic
and special reports respecting the Fund as the Trustees may reasonably request;
and (h) make available its officers and employees to the Board of Trustees
and
officers of the Trust for consultation and discussions regarding the management
of the Fund.
4. Performance
of Duties by MCM
MCM
further
agrees that, in performing its duties set forth in Sections 2 and 3 above,
and
elsewhere hereunder, it will:
(a) comply
with the 1940
Act and all rules and regulations thereunder, the Advisers Act, the Internal
Revenue Code of 1986, as amended (the “Code”) and all other applicable federal
and state laws and regulations, and with any applicable procedures adopted
by
the Trustees;
(b) use
reasonable efforts
to manage the Fund so that it will qualify, and continue to qualify, as a
regulated investment company under Subchapter M of the Code and regulations
issued thereunder;
(c) maintain
books and
records with respect to the Fund’s securities transactions, render to the Board
of Trustees of the Trust such periodic and special reports as the Board may
reasonably request, and keep the Trustees informed of developments materially
affecting the Fund’s portfolio;
(d) make
available to the
Trust, promptly upon request, such copies of its investment records and ledgers
with respect to the Fund as may be required to assist the Trust in its
compliance with applicable laws and regulations, and furnish the Trustees with
such periodic and special reports regarding the Fund as they may reasonably
request;
(e) immediately
notify the
Trust in the event that MCM or any of its affiliates: (1) becomes aware that
it
is subject to a statutory disqualification that prevents MCM from serving as
investment adviser or manager pursuant to this Agreement; or (2) becomes aware
that it is the subject of an administrative proceeding
or enforcement action by the Securities and Exchange Commission or other
regulatory authority. MCM further agrees to notify the Trust
immediately of any material fact known to MCM respecting or relating to MCM
that
is not contained in the Trust’s Registration Statement regarding the Fund, or
any amendment or supplement thereto, but that is required to be disclosed
therein, and of any statement contained therein that becomes untrue in any
material respect.
MCM,
at its
discretion, may enter into contracts with third parties for the performance
of
the services to be provided by it under this Agreement.
5. Documents
The
Fund has
delivered properly certified or authenticated copies of each of the following
documents to MCM and will deliver to it all future amendments and supplements
thereto, if any:
(a)
certified resolution of the Board of Trustees of the Trust authorizing the
appointment of MCM and approving the general form of this
Agreement;
(b)
the Registration Statement as filed with the Securities and Exchange Commission
and any amendments thereto; and
(c)
exhibits, powers of attorneys, certificates and any and all other documents
relating to or filed in connection with the Registration Statement described
above.
6. Brokerage
In
selecting
brokers or dealers to execute transactions on behalf of the Fund, MCM will
use
its best efforts to seek the best overall terms available. In assessing the
best
overall terms available for any Fund transaction, MCM will consider all factors
it deems relevant, including, but not limited to, the breadth of the market
in
the security, the price of the security, the financial condition and execution
capability of the broker or dealer and the reasonableness of the commission,
if
any, for the specific transaction and on a continuing basis. In selecting
brokers or dealers to execute a particular transaction, and in evaluating the
best overall terms available, MCM is authorized to consider the brokerage and
research services (as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended (the “ 1934 Act”)) provided to the Fund and/or
other accounts over which MCM or its affiliates exercise investment discretion.
In accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder,
and subject to any other applicable laws and regulations, MCM and its affiliates
are authorized to effect portfolio transactions for the Fund as agent and to
retain usual and customary brokerage commissions on such
transactions.
7. Records
MCM
agrees to
maintain and to preserve for the periods prescribed under the 1940 Act any
such
records as are required to be maintained by MCM with respect to the Fund by
the
1940 Act. MCM further agrees that all records which it maintains for
the Fund are the property of the Fund and it will promptly surrender any of
such
records upon request, provided that MCM may maintain a copy for its own
records.
8. Standard
of Care
MCM
shall
exercise its best judgment in rendering the services under this
Agreement. MCM shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund or the Fund’s shareholders
in connection with the matters to which this Agreement relates, provided that
nothing herein shall be deemed to protect or purport to protect MCM against
any
liability to the Fund or to its shareholders to which MCM would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence on
its
part in the performance of its duties or by reason of MCM’s reckless disregard
of its obligations and duties under this Agreement. As used in this
Section 8, the term “MCM” shall include any officers, directors, employees, or
other affiliates of MCM performing services with respect to the
Fund.
9. Compensation
In
consideration of the services rendered pursuant to this Agreement, the Fund
will
pay MCM a fee at an annual rate equal to 0.85% of the average daily net assets
of the Fund. This fee shall be computed and accrued daily and payable
monthly. For the purpose of determining fees payable to MCM, the
value of the Fund’s average daily net assets shall be computed at the times and
in the manner specified in the Fund’s Prospectus or Statement of Additional
Information.
10. Expenses
MCM
will bear
all expenses in connection with the performance of its services under this
Agreement. The Fund will bear certain other expenses to be incurred in its
operation, including: taxes, interest, brokerage fees and commissions; fees
and
expenses of Trustees of the Trust who are not officers, directors, or employees
of MCM; Securities and Exchange Commission fees and state blue sky qualification
fees; charges of custodians and transfer and dividend disbursing agents and
the
independent administrator; the Fund’s proportionate share of insurance premiums;
outside auditing and legal expenses; costs of membership in any industry trade
groups; costs of maintenance of the Fund’s existence; costs attributable to
investor services, including, without limitation, telephone and personnel
expenses; charges of independent pricing services; costs of preparing and
printing prospectuses and statements of additional information for regulatory
purposes and for distribution to existing shareholders; costs of shareholders’
reports and meetings of the shareholders of the Fund and of the officers or
Board of Trustees of the Trust; and any extraordinary expenses. In addition,
the
Fund will pay distribution fees pursuant to a Distribution Plan adopted under
Rule 12b-1 under the 1940 Act.
11. Services
to Other Companies or Accounts
The
investment
advisory and administrative services provided by MCM to the Fund under this
Agreement are not to be deemed exclusive, and MCM, or any affiliate thereof,
shall be free to render similar services to other investment companies and
other
clients (whether or not their investment objectives and policies are similar
to
those of the Fund) and to engage in other activities, so long as its services
hereunder are not impaired thereby.
12. Reimbursement
of Organization Expenses
The
Trust
hereby agrees to reimburse MCM for the organization expenses of, and the
expenses incurred in connection with, the initial offering of the shares of
the
Fund, to the extent permissible.
13. Duration
and Termination
This
Agreement
shall become effective on December 14, 2007 and shall continue in effect, unless
sooner terminated as provided herein, for two years from such date and shall
continue from year to year thereafter, provided each continuance is specifically
approved at least annually by (i) the vote of a majority of the Board of
Trustees of the Trust or (ii) a vote of a “majority” (as defined in the 0000
Xxx) of the Fund’s outstanding voting securities, provided that in either event
the continuance is also approved by a majority of the Board of Trustees who
are
not “interested persons” (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable, without penalty, on sixty (60)
days’ written notice by the Board of Trustees of the Trust or by vote of holders
of a majority of the Fund’s shares or upon ninety (90) days’ written notice by
MCM. This Agreement will also terminate automatically in the event of
its “assignment” (as defined in the 1940 Act).
14. Amendment
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 amendment of this
Agreement shall be effective until approved by an affirmative vote of (i) a
majority of the outstanding voting securities of the Fund, and (ii) a majority
of the Trustees of the trust, including a majority of Trustees who are not
interested persons of any party to this Agreement, cast in person at a meeting
called for the purpose of voting on such approval, if such approval is required
by applicable law.
15. Use
of the Name “Marsico”
Xxxxxxx
Capital
Management, LLC has consented to and granted a non-exclusive license for the
use
by the Trust and by each Series thereof to the phrase “Xxxxxxx Capital” or the
identifying word “Marsico” in the name of the Trust and of each Series or any
logo or symbol authorized by Xxxxxxx Capital. Such consent is conditioned upon
the Trust’s employment of Xxxxxxx Capital or its affiliates as investment
adviser to the Trust and to each Series. As between Xxxxxxx Capital and the
Trust, Xxxxxxx Capital shall control the use of such name insofar as such name
contains the phrase “Xxxxxxx Capital” or the identifying word
“Marsico.” Marsico may from time to time use the phrase “Xxxxxxx
Capital” or the identifying word “Marsico” in other connections and for other
purposes, including without limitation in the names of other investment
companies, corporations or businesses that it may manage, advise, sponsor or
own
or in which it may have a financial interest. Xxxxxxx Capital may
require the Trust or any Series to cease using the phrase “Xxxxxxx Capital” or
the identifying word “Marsico” in the name of the Trust or any Series or any
logo or symbol authorized by Xxxxxxx Capital if the Trust or Series ceases
to
employ Xxxxxxx Capital or an affiliate thereof as investment
adviser.
16. Miscellaneous
(a)
This Agreement constitutes the full and complete agreement of the parties hereto
with respect to the subject matter hereof.
(b)
Titles or captions of Sections contained in this Agreement are inserted only
as
a matter of convenience and for reference, and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provisions
thereof.
(c)
This Agreement may be executed in several counterparts, all of which together
shall for all purposes constitute one Agreement, binding on all the
parties.
(d)
This Agreement and the rights and obligations of the parties hereunder shall
be
governed by, and interpreted, construed and enforced in accordance with the
laws
of the State of Delaware.
(e)
If any provisions of this Agreement or the application thereof to any party
or
circumstances shall be determined by any court of competent jurisdiction to
be
invalid or unenforceable to any extent, the remainder of this Agreement or
the
application of such provision to such person or circumstance, other
than those as to which it is so determined to be invalid or unenforceable,
shall
not be affected thereby, and each provision hereof shall be valid and shall
be
enforced to the fullest extent permitted by law.
(f)
Notices of any kind to be given to MCM by the Trust shall be in writing and
shall be duly given if mailed or delivered to MCM at 0000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attn: Xxx Xxxxxx, or at such other
address or to such individual as shall be specified by MCM to the Trust. Notices
of any kind to be given to the Trust by MCM shall be in writing and shall be
duly given if mailed or delivered to 0000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxxxxxxxx X. Xxxxxxx, or
at
such other address or to such individual as shall be specified by the Trust
to
MCM.
IN
WITNESS
WHEREOF, the parties hereto have caused this instrument to be executed by
their officers designated below effective as of the day and year first above
written.
THE
XXXXXXX
INVESTMENT FUND on Behalf of the Xxxxxxx Focus Fund
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President and Secretary
XXXXXXX
CAPITAL
MANAGEMENT, LLC
By: /s/
Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx
X. Xxxxxxx
Title: President
