Exhibit No. 4(c)
FORM OF INVESTMENT ADVISORY AND ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of __________, 2001, by and between XXXXXXX
ADVISORS, INC., a Delaware corporation ("Xxxxxxx Advisors"), and XXXXXXX MANAGED
INVESTMENTS TRUST, a Massachusetts business trust (the "Trust"), on behalf of
its series, Xxxxxxx Equity Focus Fund ("Fund").
W I T N E S S E T H
WHEREAS, the Trust is registered with the Securities and Exchange Commission
(the "Commission") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust has established the Fund; and
WHEREAS, Xxxxxxx Advisors is registered with the Commission as an investment
advisor under the Investment Advisers Act of 1940, as amended (the "Advisers
Act") and as a broker-dealer under the Securities Exchange Act of 1934, as
amended ("1934 Act"), and is in the business of acting as an investment advisor
and as a broker-dealer; and
WHEREAS, the Trust, on behalf of the Fund, and Xxxxxxx Advisors desire to enter
into an agreement to provide for investment advisory and administration services
for the Fund on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties agree as follows:
I. APPOINTMENT OF XXXXXXX ADVISORS
Subject to the terms and conditions of this Agreement and the policies and
control of the Trust's Board of Trustees ("Trustees"), the Trust, on behalf of
the Fund, hereby appoints Xxxxxxx Advisors to serve as the investment advisor
and administrator to the Fund, to provide the investment advisory services set
forth below in Section III and the administration services set forth below in
Section IV. Xxxxxxx Advisors accepts such appointment and agrees to render the
services herein set forth for the compensation herein provided. Xxxxxxx Advisors
agrees that, except as required to carry out its duties under this Agreement or
otherwise expressly authorized, it is acting as an independent contractor and
not as an agent of the Fund and has no authority to act for or represent the
Fund in any way.
II. REPRESENTATIONS AND WARRANTIES
A. Representations and Warranties of Xxxxxxx Advisors
Xxxxxxx Advisors hereby represents and warrants to the Trust as
follows:
1. DUE INCORPORATION AND ORGANIZATION. Xxxxxxx Advisors is duly
organized and is in good standing under the laws of the State
of Delaware and is fully authorized to enter into this
Agreement and carry out its duties and obligations hereunder.
2. REGISTRATION. Xxxxxxx Advisors is registered as an investment
advisor with the Commission under the Advisers Act and as a
broker-dealer with the Commission under the 1934 Act. Xxxxxxx
Advisors shall maintain such registrations in effect at all
times during the term of this Agreement.
B. Representations and Warranties of the Fund and the Trust
The Trust, on behalf of the Fund, hereby represents and warrants to
Xxxxxxx Advisors as follows:
1. DUE ORGANIZATION. The Trust has been duly organized under the
laws of the Commonwealth of Massachusetts and it is authorized
to enter into this Agreement and carry out its obligations
hereunder.
2. REGISTRATION. The Trust is registered as an investment company
with the Commission under the 1940 Act and shares of the Fund
are registered or qualified for offer and sale to the public
under the Securities Act of 1933, as amended, and all
applicable state securities laws. Such registrations or
qualifications will be kept in effect during the term of this
Agreement.
III. DUTIES AS INVESTMENT ADVISOR
In carrying out the terms of this Agreement with respect to its duties as
investment advisor, Xxxxxxx Advisors shall do the following subject to the
supervision of the Trustees:
1. select the securities to be purchased, sold or exchanged by the
Fund or otherwise represented in the Fund's investment portfolio,
place trades for all such securities and regularly report thereon
to the Trustees;
2. formulate and implement continuing programs for the purchase and
sale of securities and regularly report thereon to the Trustees;
3. obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data,
domestic, foreign or otherwise, whether affecting the economy
generally, the Fund, securities held by or under consideration for
the Fund, or the issuers of those securities;
4. provide economic research and securities analyses as Xxxxxxx
Advisors considers necessary or advisable in connection with
Xxxxxxx Advisors' performance of its duties hereunder;
5. provide assistance to the administration of the Trust with the task
of valuing portfolio securities held by the Trust; and
6. take any other actions which appear to Xxxxxxx Advisors and the
Trustees necessary to carry into effect Xxxxxxx Advisors' duties as
investment advisor under this Agreement.
IV. DUTIES AS ADMINISTRATOR
In carrying out the terms of this Agreement with respect to its duties as
administrator, Xxxxxxx Advisors shall do the following subject to the
supervision of the Trustees:
1. provide the Fund with officers and other corporate, administrative
and clerical personnel necessary to perform the Fund's operations;
2
2. provide office space, equipment and facilities (which may be
Xxxxxxx Advisors' or its affiliates') for maintaining the Trust's
organization, for meetings of the Trustees and shareholders, and
for performing administrative services hereunder;
3. assist the Trust in obtaining the services of and contracting with
custodians of the Fund's securities, transfer agents, dividend
paying agents, pricing services and other service providers as are
necessary to carry out the terms of this Agreement;
4. provide oversight of and manage all aspects of the Fund's
operations (other than investment advisory activities), oversee
relations with, and monitor the performance of, custodians,
depositories, transfer and pricing agents, accountants, attorneys,
underwriters, brokers and dealers, insurers and other persons in
any capacity deemed to be necessary and desirable by the Trustees;
5. provide certain internal clerical and legal services, and
stationery and office supplies;
6. provide or oversee the provision of accounting services, including:
a) determining (with the assistance of the Fund's advisor and/or
sub-advisor as necessary) and arranging for the publication of
the net asset value of the Fund;
b) preparing financial information for presentation to the
Trustees;
c) preparing and monitoring the Trust's annual expense budget, and
establishing daily accruals;
d) coordinating payment of Fund expenses;
e) calculating periodic dividend rates to be declared in
accordance with guidelines;
f) calculating total return information as described in the
current prospectus and statement of additional information
("Registration Statement");
g) responding to regulatory audits;
7. provide non-investment related statistical and research data and
such other reports, evaluations and information as the Fund may
request from time to time;
8. monitor the Fund's compliance with the current Registration
Statement, the 1940 Act, the Internal Revenue Code and other
applicable laws and regulations;
9. prepare, to the extent requested by the Fund and at the Fund's
expense, registration statements, proxy statements and annual and
semi-annual reports to shareholders;
3
10. arrange for the printing and mailing (at the Fund's expense) of
prospectuses, proxy statements and other reports or other materials
provided to the Fund's shareholders;
11. support outside auditors in preparing and filing the Fund's federal
and state tax returns and required tax filings;
12. prepare periodic reports to and filings with the Commission and
state Blue Sky authorities;
13. maintain the Trust's existence, and during such times as the shares
of the Fund are publicly offered, maintain the registration and
qualification of the Fund's shares under federal and state law;
14. keep and maintain the financial accounts and records of the Fund;
15. analyze and propose changes to shareholder services designed to
enhance the value or convenience of the Fund as an investment
vehicle;
16. provide the Trustees on a regular basis with reports and analyses
of the Fund's operations and the operations of comparable
investment companies; and
17. take any other actions which appear to Xxxxxxx Advisors and the
Trustees necessary to carry into effect Xxxxxxx Advisors' duties as
administrator under this Agreement.
V. DELEGATION OF XXXXXXX ADVISORS' DUTIES AS
INVESTMENT ADVISOR
Subject to the approval of the Trustees, and the shareholders of the Fund (if
required), Xxxxxxx Advisors may enter into one or more agreements (each a
"Sub-Advisory Agreement") with one or more sub-advisors in which Xxxxxxx
Advisors delegates to such sub-advisors any or all of its duties specified in
Section III of this Agreement, with respect to all or a portion of the Fund's
assets, provided that each Sub-Advisory Agreement imposes on the sub-advisor
bound thereby the corresponding duties and conditions to which Xxxxxxx Advisors
is subject by Section III of this Agreement. With respect to each Sub-Advisory
Agreement, Xxxxxxx Advisors shall perform an initial review of the prospective
sub-advisor and shall supervise and monitor the sub-advisor's performance
thereafter. Xxxxxxx Advisors agrees to report to the Trust the results of its
evaluation, supervision and monitoring functions and to keep certain books and
records of the Trust in connection therewith. Xxxxxxx Advisors further agrees to
communicate performance expectations and evaluations to such sub-advisor and to
recommend to the Trust whether the Sub-Advisory Agreement with such sub-advisor
should be renewed, modified or terminated. Xxxxxxx Advisors is responsible for
informing the sub-advisor of the Fund's investment objective, policies and
restrictions, for informing or ascertaining that it is aware of other legal and
regulatory responsibilities applicable to the sub-advisor with respect to the
Fund and for monitoring the sub-advisor's discharge of its duties; but Xxxxxxx
Advisors is not responsible for the specific actions (or inactions) of such
sub-advisor in the performance of the duties assigned to it.
4
VI. DELEGATION OF XXXXXXX ADVISORS' DUTIES AS
ADMINISTRATOR
Subject to the approval of the Trustees, Xxxxxxx Advisors may enter into one or
more agreements (each a "Sub-Administration Agreement") with one or more
sub-administrators in which Xxxxxxx Advisors delegates to such
sub-administrators any or all of its duties specified in Section IV of this
Agreement provided that each Sub-Administration Agreement imposes on the
sub-administrator bound thereby the corresponding duties and conditions to which
Xxxxxxx Advisors is subject by Section IV of this Agreement. With respect to
each Sub-Administration Agreement, Xxxxxxx Advisors shall perform an initial
review of the prospective sub-administrator and shall monitor the
sub-administrator's performance thereafter.
VII. BROKER-DEALER RELATIONSHIPS
A. Trade Execution
Xxxxxxx Advisors shall place all orders for the purchase and sale of
portfolio securities for the Fund with brokers or dealers selected by
Xxxxxxx Advisors, which may include brokers affiliated with Xxxxxxx
Advisors, subject to the requirements of Section 11(a) of the 1934 Act,
and in accordance with Rule 17e-1 under the 1940 Act. Xxxxxxx Advisors
shall use its best efforts to seek to execute portfolio transactions at
prices that are advantageous to the Fund and at commission rates that
are reasonable in relation to the benefits received.
B. Selection of Broker-Dealers
In selecting broker-dealers qualified to execute a particular
transaction, brokers or dealers may be selected that also provide
brokerage or research services (as those terms are used in Section
28(e) of the 0000 Xxx) to Xxxxxxx Advisors and/or the other accounts
over which Xxxxxxx Advisors exercises investment discretion. Xxxxxxx
Advisors is authorized to cause the Fund to pay a broker or dealer who
provides such brokerage or research services a commission for executing
a portfolio transaction for the Fund that is in excess of the amount of
commission another broker or dealer would have charged for effecting
that transaction if Xxxxxxx Advisors determines in good faith that such
amount of commission is reasonable in relation to the value of the
brokerage or research services provided by such broker or dealer and is
paid, in accordance with Section 28(e). This determination may be
viewed in terms of either that particular transaction or the overall
responsibilities that Xxxxxxx Advisors and its affiliates have with
respect to accounts over which they exercise investment discretion.
Xxxxxxx Advisors may consider the sale of shares of the Fund and of
other investment companies advised by Xxxxxxx Advisors as a factor in
the selection of brokers or dealers to effect transactions for the
Fund, subject to Xxxxxxx Advisors' duty to seek best execution. Xxxxxxx
Advisors may also select brokers or dealers to effect transactions for
the Fund that provide payment for expenses of the Fund. The Trustees
shall periodically review the commissions paid by the Fund to determine
if the commissions paid over representative periods of time were
reasonable in relation to the benefits received.
5
VIII. CONTROL BY THE TRUSTEES
Any investment program undertaken by Xxxxxxx Advisors pursuant to this
Agreement, as well as any other activities undertaken by Xxxxxxx Advisors on
behalf of the Fund pursuant thereto, shall at all times be subject to any
directives of the Trustees.
IX. COMPLIANCE WITH APPLICABLE REQUIREMENTS
In carrying out its obligations under this Agreement, Xxxxxxx Advisors shall at
all times conform to:
1. all applicable provisions of the 1940 Act;
2. the provisions of the current Registration
Statement of the Trust;
3. the provisions of the Trust's Declaration of
Trust, as may be amended from time to time;
4. the provisions of the Bylaws of the Trust, as
may be amended from time to time; and
5. any other applicable provisions of state and
federal law.
X. COMPENSATION
For the services to be rendered, the facilities furnished and the expenses
assumed by Xxxxxxx Advisors, the Trust, on behalf of the Fund, shall pay to
Xxxxxxx Advisors a fee, computed daily and paid monthly, at an annual rate of
0.80% of average daily net assets of the Fund.
Except as hereinafter set forth, compensation under this Agreement shall be
calculated and accrued daily at the rate of 1/365 (1/366 in the event of a leap
year) of the annual advisory fee applied to the daily net assets of the Fund. If
this Agreement becomes effective subsequent to the first day of a month or
terminates before the last day of a month, compensation for that part of the
month this Agreement is in effect shall be prorated in a manner consistent with
the calculation of the fees set forth above. Subject to the provisions of
Section XII hereof, payment of Xxxxxxx Advisors' compensation for the preceding
month shall be made as promptly as possible.
XI. EXPENSES
The expenses in connection with the management of the Fund shall be allocated
between the Fund and Xxxxxxx Advisors as follows:
6
A. Expenses of Xxxxxxx Advisors
Xxxxxxx Advisors shall pay:
1. the salaries, employment benefits and other related costs and
expenses of those of its personnel engaged in providing
investment advice to the Fund, including without limitation,
office space, office equipment, telephone and postage costs;
and
2. all fees and expenses of all Trustees, officers and employees,
if any, of the Trust who are employees of Xxxxxxx Advisors,
including any salaries and employment benefits payable to
those persons.
B. Expenses of the Fund
The Fund shall pay:
1. fees payable to and expenses incurred on behalf of the Fund by
Xxxxxxx Advisors under this Agreement;
2. brokers' commissions, issue and transfer taxes or other
transaction fees payable in connection with any transactions
in the securities in the Fund's investment portfolio or other
investment transactions incurred in managing the Fund's
assets, including portions of commissions that may be paid to
reflect brokerage research services provided to Xxxxxxx
Advisors;
3. taxes;
4. expenses of organizing the Trust and the Fund;
5. filing fees and expenses relating to the registrations and
qualification of the Fund's shares and the Trust under federal
and/or state securities laws and maintaining such registration
and qualifications;
6. fees and salaries payable to the Trustees who are not
interested persons of the Trust or Xxxxxxx Advisors
("Independent Trustees");
7. all expenses incurred in connection with the Trustees'
services, including travel expenses;
8. costs of any liability, uncollectible items of deposit and
other insurance and fidelity bonds;
9. any costs, expenses or losses arising out of a liability of or
claim for damages or other relief asserted against the Trust
or Fund for violation of any law;
10. legal, accounting and auditing expenses, including legal fees
of special counsel for the Independent Trustees;
11. charges of custodians, transfer agents and other agents;
7
12. expenses of setting in type and printing prospectuses and
supplements thereto, statements of additional information and
supplements thereto, and reports and proxy materials for
existing shareholders;
13. costs of mailing prospectuses and supplements thereto,
statements of additional information and supplements thereto,
and reports and proxy materials to existing shareholders;
14. any extraordinary expenses (including fees and disbursements
of counsel, costs of actions, suits or proceedings to which
the Trust is a party and the expenses the Trust may incur as a
result of its legal obligation to provide indemnification to
its officers, Trustees, agents and shareholders) incurred by
the Trust or Fund;
15. fees, voluntary assessments and other expenses incurred in
connection with membership in investment company
organizations;
16. cost of mailing and tabulating proxies and costs of meetings
of shareholders, the Trustees and any committees thereof;
17. the cost of investment company literature and other
publications provided by the Trust to its Trustees and
officers;
18. costs of mailing, stationery and communications equipment;
19. expenses incident to any dividend, withdrawal or redemption
options;
20. charges and expenses of any outside pricing service used to
value portfolio securities;
21. interest on borrowings of the Trust; and
22. fees or expenses related to license agreements with respect to
securities indices.
Notwithstanding the above, Xxxxxxx Advisors may waive a portion or all of the
fees it is entitled to receive.
In addition, Xxxxxxx Advisors may reimburse the Trust, on behalf of the Fund,
for expenses allocated to the Fund.
The Trust or the Fund may pay directly any expenses incurred by it in its normal
operations and, if any such payment is consented to by Xxxxxxx Advisors and
acknowledged as otherwise payable by Xxxxxxx Advisors pursuant to this
Agreement, the Fund may reduce the fee payable to Xxxxxxx Advisors pursuant to
Section X thereof by such amount. To the extent that such deductions exceed the
fee payable to Xxxxxxx Advisors on any monthly payment date, such excess shall
be carried forward and deducted in the same manner from the fee payable on
succeeding monthly payment dates.
The payment or assumption by Xxxxxxx Advisors of any expenses of the Trust or
the Fund that Xxxxxxx Advisors is not required by this Agreement to pay or
assume shall not obligate Xxxxxxx Advisors to pay or assume the same or any
similar expense of the Trust or the Fund on any subsequent occasion.
8
XII. ADDITIONAL SERVICES
Upon the request of the Trustees, Xxxxxxx Advisors may perform certain services
on behalf of the Fund that are not required by this Agreement. Such services
will be performed on behalf of the Fund and Xxxxxxx Advisors may receive from
the Fund such reimbursement for costs or reasonable compensation for such
services as may be agreed upon between Xxxxxxx Advisors and the Trustees on a
finding by the Trustees that the provision of such services by Xxxxxxx Advisors
is in the best interests of the Fund and its shareholders.
XIII. NON-EXCLUSIVITY
The services of Xxxxxxx Advisors to the Fund are not to be deemed to be
exclusive, and Xxxxxxx Advisors shall be free to render similar services or
other services to others (including other investment companies) and to engage in
other activities, so long as its services under this Agreement are not impaired
thereby. It is understood and agreed that officers and directors of Xxxxxxx
Advisors may serve as officers or Trustees of the Trust, to the extent permitted
by law; and that the officers and directors of Xxxxxxx Advisors are not
prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, directors
or trustees of any other firm or trust, including other investment companies.
XIV. TERM
This Agreement, which shall become effective on the date first above written,
shall have an initial term of two years and then may be renewed in accordance
with Section XV herein.
XV. RENEWAL
Following the expiration of its initial two-year term, the Agreement shall
continue in force and effect from year to year, provided that such continuance
is specifically approved at least annually:
1. a. by the Trustees, or
b. by the vote of a majority of the Fund's outstanding voting
securities (as defined in Section 2(a)(42) of the 1940 Act),
and
2. by the affirmative vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of a party to this
Agreement by votes cast in person at a meeting specifically called
for such purpose.
XVI. TERMINATION
This Agreement may be terminated at any time without the payment of any penalty,
by vote of the Trustees or by vote of a majority of the Fund's outstanding
voting securities (as defined in Section 2(a)(42) of the 1940 Act), or by
Xxxxxxx Advisors, on sixty (60) days' written notice to the other party. The
notice provided for herein may be waived by the party required to be notified.
This Agreement shall automatically terminate in the event of its "assignment"
(as defined in Section 2(a)(4) of the 1940 Act).
9
XVII. 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.
XVIII. LIMITATION OF LIABILITY
Xxxxxxx Advisors shall not be liable to the Trust for any losses incurred by the
Trust except to the extent that such losses resulted from an act or omission on
the part of Xxxxxxx Advisors or its officers, directors or employees that
involves willful misfeasance, bad faith or gross negligence, or reckless
disregard by Xxxxxxx Advisors of its duties under this Agreement, in connection
with the services rendered by Xxxxxxx Advisors hereunder. Any person, even
though also an officer, director, employee, or agent of Xxxxxxx Advisors, who
may be or become an officer, Trustee, employee or agent of the Trust shall be
deemed, when rendering services to the Fund or the Trust or acting with respect
to any business of the Fund or the Trust, to be rendering such service to or
acting solely for the Fund or the Trust and not as an officer, director,
employee, or agent or one under the control or direction of Xxxxxxx Advisors
even though paid by it.
XIX. LIMITATION OF LIABILITY OF THE TRUSTEES AND
SHAREHOLDERS OF THE TRUST
No Trustee, shareholder, officer, employee or agent of the Fund shall be liable
for any obligations of the Fund or the Trust under this Agreement, and Xxxxxxx
Advisors agrees that, in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the Fund in settlement of such
right or claim, and not to any Trustee, shareholder, officer, employee or agent.
XX. NOTICES
Any notices under this Agreement shall be in writing, addressed and delivered,
mailed postage paid, or sent by other delivery service, or by facsimile
transmission to each party at such address as each party may designate for the
receipt of notice. Until further notice, such addresses shall be:
IF TO THE TRUST, ON BEHALF OF THE FUND:
Xxxxxxx Managed Investments Trust
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax number (000) 000-0000
Attention: Xxx X. Doberman, Esq.
IF TO XXXXXXX ADVISORS:
Xxxxxxx Advisors, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax number (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
10
XXI. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York, without
giving effect to the conflicts of laws principles thereof, and in accordance
with the 1940 Act, provided, however, that Section XIX above will be construed
in accordance with the laws of the Commonwealth of Massachusetts. Any question
of interpretation of any term or provision of this Agreement having a
counterpart in or otherwise derived from a term or provision of the 1940 Act
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules or orders of the
Commission issued pursuant to the 1940 Act, or contained in no-action and
interpretive positions taken by the Commission staff. In addition, where the
effect of a requirement of the 1940 Act reflected in the provisions of this
Agreement is revised by rule, order or interpretation of the Commission or the
Commission staff, such provisions shall be deemed to incorporate the effect of
such rule, order or interpretation.
XXII. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their respective officers on day and year first above written.
XXXXXXX ADVISORS, INC. XXXXXXX ADVISORS, INC.
By: By:
--------------------------- -------------------------------------
Name: Name:
Title: Title:
XXXXXXX MANAGED XXXXXXX MANAGED
INVESTMENTS TRUST INVESTMENTS TRUST
By: By:
--------------------------- -------------------------------------
Name: Name:
Title: Title:
