PORTFOLIO MANAGEMENT AGREEMENT For The Small Capitalization Equity Portfolio
EXHIBIT (d)(41)
PORTFOLIO MANAGEMENT AGREEMENT
For The Small Capitalization Equity Portfolio
For The Small Capitalization Equity Portfolio
AGREEMENT made this 28th day of August, 2009, between Pzena Investment Management, LLC,
a limited liability company organized under the laws of Delaware (“Portfolio Manager”), and The
Xxxxxx Xxxxxxxxx Trust, a Delaware statutory trust (“Trust”).
WHEREAS, the Trust is registered as an open-end, diversified, management investment company under
the Investment Company Act of 1940, as amended (“Investment Company Act”) which offers several
series of shares of beneficial interests (“shares”) representing interests in separate investment
portfolios; and
WHEREAS, the Trust desires to retain the Portfolio Manager to provide a continuous program of
investment management to that portion of the assets of The Small Capitalization Equity Portfolio of
the Trust (“Portfolio”) that may, from time to time be allocated to it by, or under the supervision
of, the Trust’s Board of Trustees, and Portfolio Manager is willing, in accordance with the terms
and conditions hereof, to provide such services to the Trust;
NOW THEREFORE, in consideration of the promises and covenants set forth herein and intending to be
legally bound hereby, it is agreed between the parties as follows:
1. Appointment of Portfolio Manager. The Trust hereby retains Portfolio Manager to provide
the investment services set forth herein under Portfolio Manager’s Small Cap Value Service and
Portfolio Manager agrees to accept such appointment. In carrying out its responsibilities under
this Agreement, the Portfolio Manager shall at all times act in accordance with the investment
objectives, policies and restrictions applicable to the Portfolio as set forth in the then current
Registration Statement of the Trust delivered by the Trust to the Portfolio Manager, applicable
provisions of the Investment Company Act and the rules and regulations promulgated under the
Investment Company Act and other applicable federal securities laws.
2. Duties of Portfolio Manager. (a) Portfolio Manager shall provide a continuous program
of investment management for that portion of the assets of the Portfolio (“Account”) that may, from
time to time be allocated to it by, or under the supervision of, the Trust’s Board of Trustees, as
indicated in writing by an authorized officer of the Trust. It is understood that the Account may
consist of all, a portion of or none of the assets of the Portfolio, and that the Board of Trustees
and/or Xxxxxx Xxxxxxxxx & Co., LLC (“Xxxxxx Xxxxxxxxx”), the Trust’s investment adviser, has the
right to allocate and reallocate such assets to the Account at any time, and from time to time,
upon such notice to the Portfolio Manager as may be reasonably necessary, in the view of the Trust,
to ensure orderly management of the Account or the Portfolio. The Portfolio Manager’s
responsibility for providing portfolio management services to the Portfolio shall be limited to the
Account.
(b) Subject to any other written instructions of Trust or authorized officers of the Trust,
Portfolio Manager is hereby appointed the Trust’s agent and attorney-in-fact for the limited
purposes of executing account documentation, agreements, contracts and other documents as Portfolio
Manager shall be requested by brokers, dealers, counterparties and other persons in connection with
its management of the Account, provided that, Portfolio Manager’s actions in executing such
documents shall comply with federal regulations, all other federal laws applicable to registered
investment companies and Portfolio Manager’s duties and obligations under this Agreement and the
Trust’s governing documents.
(c) Subject to the general supervision of the Trust’s Board of Trustees and the direction of Xxxxxx
Xxxxxxxxx, Portfolio Manager shall have sole investment discretion with respect to the Account,
including investment research, selection of the securities to be purchased and sold and the portion
of the Account, if any, that shall be held uninvested, and the selection of brokers and dealers
through which securities transactions in the Account shall be executed. The Portfolio Manager
shall not consult with any other portfolio manager of the Portfolio concerning transactions for the
Portfolio in securities or other assets. Specifically, and without limiting the generality of the
foregoing, Portfolio Manager agrees that it will:
(i) advise the Portfolio’s designated custodian bank and administrator or accounting agent on
each business day of each purchase and sale, as the case may be, made on behalf of the Account,
specifying the name and quantity of the security purchased or sold, the unit and aggregate purchase
or sale price, commission paid, the market on
which the transaction was effected, the trade date, the settlement date, the identity of the
effecting broker or dealer and/or such other information, and in such manner, as may from time to
time be reasonably requested by the Trust;
(ii) maintain all applicable books and records with respect to the securities transactions of
the Account. Specifically, Portfolio Manager agrees to maintain with respect to the Account those
records required to be maintained under Rule 31a-1(b)(1), (b)(5) and (b)(6) under the Investment
Company Act with respect to transactions in the Account including, without limitation, records
which reflect securities purchased or sold in the Account, showing for each such transaction, the
name and quantity of securities, the unit and aggregate purchase or sale price, commission paid,
the market on which the transaction was effected, the trade date, the settlement date, and the
identity of the effecting broker or dealer. Portfolio Manager will preserve such records in the
manner and for the periods prescribed by Rule 31a-2 under the Investment Company Act. Portfolio
Manager acknowledges and agrees that all records it maintains for the Trust are the property of the
Trust, and Portfolio Manager will surrender promptly to the Trust any such records upon the Trust’s
request. The Trust agrees, however, that Portfolio Manager may retain copies of those records that
are required to be maintained by Portfolio Manager under federal or state regulations to which it
may be subject or are reasonably necessary for purposes of conducting its business;
(iii) provide, in a timely manner, such information as may be reasonably requested by the
Trust or its designated agents in connection with, among other things, the daily computation of the
Portfolio’s net asset value and net income, preparation of proxy statements or amendments to the
Trust’s registration statement and monitoring investments made in the Account to ensure compliance
with the various limitations on investments applicable to the Portfolio and to ensure that the
Portfolio will continue to qualify for the special tax treatment accorded to regulated investment
companies under Subchapter M of the Internal Revenue Code of 1986, as amended (“Code”);
(iv) render regular reports to the Trust concerning the performance of Portfolio Manager of
its responsibilities under this Agreement. In particular, Portfolio Manager agrees that it will,
at the reasonable request of the Board of Trustees, attend meetings of the Board or its validly
constituted committees and will, in addition, make its officers and employees available to meet
with the officers and employees of the Trust at least quarterly and at other times upon reasonable
notice, to review the investments and investment program of the Account; and
(v) vote proxies of issuers of securities and respond to all corporate actions for securities
held by the Account unless otherwise instructed by the Trust or authorized officers of the Trust.
Portfolio Manager further agrees that it has adopted written proxy voting procedures that comply
with the requirements of the Investment Company Act and the Investment Advisers Act of 1940, as
amended (“Advisers Act”) (“Proxy Voting Policy”). Portfolio Manager shall exercise such voting
rights and monitor such corporate actions in accordance with Portfolio Manager’s Proxy Voting
Policy, as the same may be amended from time to time. The Trust acknowledges that there may be
times when refraining to vote a proxy may be appropriate under such Proxy Voting Policy. In
addition, the Trust acknowledges and agrees that Portfolio Manager shall not have any
responsibility to initiate, consider or participate in any bankruptcy, class action or other
litigation against or involving any issue of securities held in or formerly held in the Account or
to advise or take action on behalf of the Trust with respect to any such actions or litigation.
Portfolio Manager will forward any important information received by it about such actions to the
Trust.
3. Portfolio Transaction and Brokerage. In placing orders for portfolio securities with
brokers and dealers, Portfolio Manager shall use its best efforts to execute securities
transactions on behalf of the Account in such a manner that the total cost or proceeds in each
transaction is the most favorable under the circumstances. Portfolio Manager may, however, in its
discretion, direct orders to brokers that provide to Portfolio Manager research, analysis, advice
and similar services, and Portfolio Manager may cause the Account to pay to those brokers a higher
commission than may be charged by other brokers for similar transactions, provided that Portfolio
Manager determines in good faith that such commission is reasonable in terms either of the
particular transaction or of the overall responsibility of the Portfolio Manager to the Account and
any other accounts with respect to which Portfolio Manager exercises investment discretion, and
provided further that the extent and continuation of any such practice is subject to review by the
Trust’s Board of Trustees. Portfolio Manager shall not execute any portfolio transactions for the
Trust with a broker or dealer which is an “affiliated person” of the Trust or Portfolio Manager,
including any other investment advisory organization that may, from time to time act as a portfolio
manager for the Portfolio or any of the Trust’s other Portfolios, except as permitted under the
Investment Company Act and rules promulgated thereunder. The Trust shall provide a list of such
affiliated brokers and dealers to Portfolio Manager and will promptly advise Portfolio Manager of
any changes in such list.
4. Expenses and Compensation. Except for expenses specifically assumed or agreed to be paid
by the Portfolio Manager under this Agreement, the Portfolio Manager shall not be liable for any
expenses of the Portfolio or the Trust, including, without limitation: (i) interest and taxes;
(ii) brokerage commissions and other costs in connection with the purchase and sale of securities
or other investment instruments with respect to the Portfolio; and (iii) custodian fees and
expenses. For its services under this Agreement, Portfolio Manager shall be entitled to receive a
fee, which fee shall be payable monthly in arrears at the annual rate of 1.00% of the average daily
net assets of the Account.
5. Limitation of Liability and Indemnification. (a) Portfolio Manager shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the Portfolio or the Trust
in connection with the matters to which this Agreement relates including, without limitation,
losses that may be sustained in connection with the purchase, holding, redemption or sale of any
security or other investment by the Trust on behalf of the Portfolio, except a loss resulting from
willful misfeasance, bad faith or gross negligence on the part of Portfolio Manager in the
performance of its duties or from reckless disregard by it of its duties under this Agreement.
(b) Notwithstanding the foregoing, Portfolio Manager expressly agrees that the Trust may rely upon:
(i) the Portfolio Manager’s current Form ADV; and (ii) information provided, in writing, by
Portfolio Manager to the Trust in accordance with Section 9 of this Agreement or otherwise to the
extent such information was provided by Portfolio Manager for the purpose of inclusion in SEC
Filings, as hereinafter defined provided that a copy of each SEC Filing is provided to Portfolio
Manager: (i) at least 10 business days prior to the date on which it will become effective, in
the case of a registration statement; (ii) at least 10 business days prior to the date upon which
it is filed with the SEC in the case of the Trust’s semi-annual-report on Form N-SAR or any
shareholder report or proxy statement; or (iii) at least 10 business days prior to first use, in
the case of any other SEC Filing. For purposes of this Section 5, “SEC Filings” means the Trust’s
registration statement and amendments thereto and any periodic reports relating to the Trust and
its Portfolios that are required by law to be furnished to shareholders of the Trust and/or filed
with the Securities and Exchange Commission.
(c) Portfolio Manager agrees to indemnify and hold harmless the Trust and each of its Trustees,
officers, employees and control persons from any claims, liabilities and reasonable expenses,
including reasonable attorneys’ fees (collectively, “Losses”), to the extent that such Losses arise
out of any untrue statement of a material fact contained in an SEC Filing or the omission to state
therein a material fact necessary to make the statements therein, in light of the circumstances
under which they are made, not materially misleading, if such statement or omission was made in
reliance upon the Portfolio Manager’s current Form ADV or written information furnished by the
Portfolio Manager for the purpose of inclusion in such SEC Filings or other appropriate SEC
Filings; provided that a copy of each SEC Filing was provided to Portfolio Manager: (i) at least
10 business days prior to the date on which it will become effective, in the case of a
registration statement; (ii) at least 10 business days prior to the date upon which it is filed
with the SEC in the case of the Trust’s semi-annual-report on Form N-SAR or any shareholder report
or proxy statement; or (iii) at least 10 business days prior to first use, in the case of any other
SEC Filing.
(d) In the event that a legal proceeding is commenced against the Trust on the basis of claims for
which the Portfolio Manager would, if such claims were to prevail, be required to indemnify the
Trust pursuant to Section 5(c) above, Portfolio Manager will, at its expense, provide such
assistance as the Trust may reasonably request in preparing the defense of the such claims
(including by way of example making Portfolio Manager’s personnel available for interview by
counsel for the Trust, but specifically not including retention or payment of counsel to defend
such claims on behalf of the Trust); provided that the Portfolio Manager will not be required to
pay any Losses of the Trust except to the extent it may be required to do so under Section 5(c)
above.
(e) The indemnification obligations set forth in Section 5 (c) shall not apply unless: (i) the
statement or omission in question accurately reflects information provided to the Trust in writing
by the Portfolio Manager; (ii) the statement or omission in question was made in an SEC Filing in
reliance upon written information provided to the Trust by the Portfolio Manager specifically for
use in such SEC Filing or was contained in Portfolio Manager’s Form ADV; (iii) the Portfolio
Manager was afforded the opportunity to review the statement (or the omission was identified to it)
in connection with the 10 business day review requirement set forth in Section 5(b) above; and
(iv) upon receipt by the Trust of any notice of the commencement of any action or the assertion of
any claim to which the indemnification obligations set forth in Section 5(c) may apply, the Trust
notifies the Portfolio Manager, within 30 days and in writing, of such receipt and provides to
Portfolio Manager the opportunity to participate in the defense and/or settlement of any such
action or claim. Further, Portfolio Manager will not be required to indemnify any person under
this Section 5 to the extent that Portfolio Manager relied upon statements or information furnished
to the
Portfolio Manager, in writing, by any officer, employee or Trustee of the Trust, or by the Trust’s
custodian, administrator or accounting agent or any other agent of the Trust, in preparing written
information provided to the Trust and upon which the Trust relied in preparing the SEC Filing(s) in
question.
(f) The Portfolio Manager shall not be liable for: (i) any acts of any other portfolio manager to
the Portfolio or the Trust with respect to the portion of the assets of the Portfolio or the Trust
not managed by the Portfolio Manager; and (ii) acts of the Portfolio Manager which result from acts
of the Trust, including, but not limited to, a failure of the Trust to provide accurate and current
information with respect to the investment objectives, policies, or restrictions applicable to the
Portfolio, actions of the Trustees, or any records maintained by Trust or any other portfolio
manager to the Portfolio. The Trust agrees that, to the extent the Portfolio Manager complies
with the investment objectives, policies, and restrictions applicable to the Portfolio as provided
to the Portfolio Manager by the Trust, and with laws, rules, and regulations applicable to the
Portfolio in the management of the assets of the Portfolio specifically committed to management by
the Portfolio Manager, without regard to any other assets or investments of the Portfolio,
Portfolio Manager will be conclusively presumed for all purposes to have met its obligations under
this Agreement to act in accordance with the investment objectives, polices, and restrictions
applicable to the Portfolio and with laws, rules, and regulations applicable to the Portfolio, it
being the intention that for this purpose the assets committed to management by the Portfolio
Manager shall be considered a separate and discrete investment portfolio from any other assets of
the Portfolio; without limiting the generality of the foregoing, the Portfolio Manager will have no
obligation to inquire into, or to take into account, any other investments of the Portfolio in
making investment decisions under this Agreement. In no event shall the Portfolio Manager or any
officer, director, employee, or agent or the Portfolio Manager have any liability arising from the
conduct of the Trust and any other portfolio manager with respect to the portion of the Portfolio’s
assets not allocated to the Portfolio Manager.
6. Permissible Interest. Subject to and in accordance with the Trust’s Declaration of
Trust and Bylaws and corresponding governing documents of Portfolio Manager, Trustees, officers,
agents and shareholders of the Trust may have an interest in the Portfolio Manager as officers,
directors, agents and/or shareholders or otherwise. Portfolio Manager may have similar interests
in the Trust. The effect of any such interrelationships shall be governed by said governing
documents and the provisions of the Investment Company Act.
7. Duration, Termination and Amendments. This Agreement shall become effective as of the
date first written above and shall continue in effect thereafter for two years. This Agreement
shall continue in effect from year to year thereafter for so long as its continuance is
specifically approved, at least annually, by: (i) a majority of the Board of Trustees or the vote
of the holders of a majority of the Portfolio’s outstanding voting securities; and (ii) the
affirmative vote, cast in person at a meeting called for the purpose of voting on such continuance,
of a majority of those members of the Board of Trustees (“Independent Trustees”) who are not
“interested persons” of the Trust or any investment adviser to the Trust.
This Agreement may be terminated by the Trust or by Portfolio Manager at any time and without
penalty upon sixty days written notice to the other party, which notice may be waived by the party
entitled to it. This Agreement may not be amended except by an instrument in writing and signed by
the party to be bound thereby provided that if the Investment Company Act requires that such
amendment be approved by the vote of the Board, the Independent Trustees and/or the holders of the
Trust’s or the Portfolio’s outstanding shareholders, such approval must be obtained before any such
amendment may become effective. This Agreement shall terminate upon its assignment. For purposes
of this Agreement, the terms “majority of the outstanding voting securities,” “assignment” and
“interested person” shall have the meanings set forth in the Investment Company Act.
8. Confidentiality; Use of Name. Portfolio Manager and the Trust acknowledge and agree
that during the term of this Agreement the parties may have access to certain information that is
proprietary to the Trust or Portfolio Manager, respectively (or to their affiliates and/or service
providers). The parties agree that their respective officers and employees shall treat all such
proprietary information as confidential and will not use or disclose information contained in, or
derived from such material for any purpose other than in connection with the carrying out of their
responsibilities under this Agreement and the management of the Trust’s assets, provided, however,
that this shall not apply in the case of: (i) information that is publicly available; and (ii)
disclosures required by law or requested by any regulatory authority that may have jurisdiction
over Portfolio Manager or the Trust, as the case may be, in which case such party shall request
such confidential treatment of such information as may be reasonably available. In addition, each
party shall use its reasonable efforts to ensure that its agents or affiliates who may gain access
to such proprietary information shall be made aware of the proprietary nature and shall likewise treat
such materials as confidential.
It is acknowledged and agreed that the names “Xxxxxx Xxxxxxxxx,” “Xxxxxx Xxxxxxxxx Chief Investment
Officers” (which is a registered trademark of Xxxxxx Xxxxxxxxx & Co., LLC (“HCC”)), and any
derivative of either, as well as any logo that is now or shall later become associated with either
name (“Marks”) are valuable property of HCC and that the use of the Marks, or any one of them, by
the Trust or its agents is subject to the license granted to the Trust by HCC. Portfolio Manager
agrees that it will not use any Xxxx without the prior written consent of the Trust. Portfolio
Manager consents to use of its name, performance data, biographical data and other pertinent data,
and the Pzena Marks (as defined below), by the Trust for use in marketing and sales literature,
provided that any such marketing and sales literature shall not be used by the Trust without the
prior written consent of Portfolio Manager, which consent shall not be unreasonably withheld. The
Trust shall have full responsibility for the compliance by any such marketing and sales literature
with all applicable laws, rules, and regulations, and Portfolio Manager will have no responsibility
or liability therefor.
It is acknowledged and agreed that the name “Pzena Investment Management, LLC” and any portion or
derivative thereof, as well as any logo that is now or shall later become associated with the name
(“Pzena Marks”), are valuable property of the Portfolio Manager and that the use of the Pzena Marks
by the Trust or its agents is permitted only so long as this Agreement is in place.
The provisions of this Section 8 shall survive termination of this Agreement.
9. Representation, Warranties and Agreements of Portfolio Manager. Portfolio Manager
represents and warrants that:
(a) It is registered as an investment adviser under the Investment Advisers Act of 1940, as amended
(“Investment Advisers Act”), it will maintain such registration in full force and effect and will
promptly report to the Trust the commencement of any formal proceeding that could render the
Portfolio Manager ineligible to serve as an investment adviser to a registered investment company
under Section 9 of the Investment Company Act.
(b) Portfolio Manager understands that the Trust is subject to various regulations under the
Investment Company Act which require that the Board review and approve various procedures adopted
by portfolio managers and may also require disclosure regarding the Board’s consideration of these
matters in various documents required to be filed with the SEC. Portfolio Manager represents that
it will, upon reasonable request of the Trust, provide to the Trust information regarding all such
matters including, but not limited to, codes of ethics required by Rule 17j-1 under the Investment
Company Act and compliance procedures required by Rule 206(4)-7 under the Investment Advisers Act,
as well as certifications that, as contemplated under Rule 38a-1 under the Investment Company Act,
Portfolio Manager has implemented a compliance program that is reasonably designed to prevent
violations of the federal securities laws by the Portfolio with respect to those services provided
pursuant to this Agreement. Portfolio Manager acknowledges that the Trust may, in response to
regulations or recommendations issued by the SEC or other regulatory agencies, from time to time,
request additional information regarding the personal securities trading of its directors,
partners, officers and employees and the policies of Portfolio Manager with regard to such trading.
Portfolio Manager agrees that it make reasonable efforts to respond to the Trust’s reasonable
requests in this area.
(c) Upon request of the Trust, Portfolio Manager shall promptly supply the Trust with any
information concerning Portfolio Manager and its stockholders, employees and affiliates that the
Trust may reasonably require in connection with the preparation of its registration statements,
proxy materials, reports and other documents required, under applicable state or Federal laws, to
be filed with state or Federal agencies and/or provided to shareholders of the Trust.
10. Status of Portfolio Manager. The Trust and Portfolio Manager acknowledge and agree
that the relationship between Portfolio Manager and the Trust is that of an independent contractor
and under no circumstances shall any employee of Portfolio Manager be deemed an employee of the
Trust or any other organization that the Trust may, from time to time, engage to provide services
to the Trust, its Portfolios or its shareholders. The parties also acknowledge and agree that
nothing in this Agreement shall be construed to restrict the right of Portfolio Manager or its
affiliates to perform investment management or other services to any person or entity, including
without limitation, other investment companies and persons who may retain Portfolio Manager to
provide investment management services and the performance of such services shall not be deemed to violate or give
rise to any duty or obligations to the Trust.
11. Counterparts and Notice. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original. Any notice required to be given under this
Agreement shall be deemed given when received, in writing addressed and delivered, by certified
mail, by facsimile followed by a hard copy sent by first class, postage prepaid mail, by hand or
via overnight delivery service as follows:
If to the Trust:
Xxxxxx X. Xxxx
The Xxxxxx Xxxxxxxxx Trust
Five Tower Bridge, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
The Xxxxxx Xxxxxxxxx Trust
Five Tower Bridge, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
If to Portfolio Manager:
Xxxxxxx X. Xxxxxx
Pzena Investment Management, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Pzena Investment Management, LLC
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
12. Miscellaneous. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect. If any provision of this Agreement shall 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 upon and shall inure to the benefit of the parties hereto
and their respective successors and shall be governed by the law of the State of Delaware provided
that nothing herein shall be construed as inconsistent with the Investment Company Act or the
Investment Advisers Act.
The Trust acknowledges receipt of Part II of Portfolio Manager’s Form ADV, copies of which have
been provided to the Trust’s Board of Trustees. The Trust hereby consents to Portfolio Manager’s
use of electronic mail to satisfy its disclosure delivery requirements under the federal securities
laws (including Portfolio Manager’s obligation to deliver its Form ADV), and to deliver any other
reports and documents. Such consent shall be effective for the duration of this Agreement, unless
the Trust revokes such consent, in writing.
Portfolio Manager is hereby expressly put on notice of the limitations of shareholder and Trustee
liability set forth in the Declaration of Trust of the Trust and agrees that obligations assumed by
the Trust pursuant to this Agreement shall be limited in all cases to the assets of the Portfolio.
Portfolio Manager further agrees that it will not seek satisfaction of any such obligations from
the shareholders or any individual shareholder of the Trust, or from the Trustees of the Trust or
any individual Trustee of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers
thereunto duly authorized as of the day and year first written above.
ATTEST:
|
Pzena Investment Management, LLC |
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
ATTEST:
|
The Xxxxxx Xxxxxxxxx Trust (on behalf of The Small Capitalization Equity Portfolio) |
| By: | /s/ Xxxxxx X. Xxxx | |||
