EXHIBIT 5
[XXXXXXX XXXXX EQUITY PORTFOLIOS, INC.]
[XXXXXXX SACHS TRUST]
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
April 30, 1997
[Xxxxxxx Xxxxx Asset Management]
[Xxxxxxx Sachs Asset Management International]
[Xxxxxxx Xxxxx Funds Management L.P.]
[address]
MANAGEMENT AGREEMENT
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Dear Sirs:
[Xxxxxxx Sachs Trust] [Xxxxxxx Xxxxx Equity Portfolios, Inc.] (the "Registrant")
has been organized as a [business trust under the laws of the State of Delaware]
[business trust under the laws of the Commonwealth of Massachusetts] [a
corporation under the laws of the State of Maryland] to engage in the business
of an investment company. The shares of the Registrant ("Shares") may be
divided into multiple series ("Series"), including the Series listed on Annex A
(including any Series added to Annex A in the future, each a "Fund"). Each
Series will represent the interests in a separate portfolio of securities and
other assets. Each Series may be terminated, and additional Series established,
from time to time by action of the Board of [Trustees/Directors]. The
Registrant on behalf of each Fund has selected you to act as the investment
adviser and administrator of the Funds and to provide certain services, as more
fully set forth below, and you are willing to act as such investment adviser and
administrator and to perform such services under the terms and conditions
hereinafter set forth. Accordingly, the Registrant agrees with you as follows:
1. Name of Registrant. The Registrant may use any name including or
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derived from the name "Xxxxxxx Sachs" in connection with a Fund only for so long
as this Agreement or any extension, renewal or amendment hereof remains in
effect, including any similar agreement with any organization which shall have
succeeded to your business as investment adviser or administrator. Upon the
termination of this Agreement, the Registrant (to the extent that it lawfully
can) will cause the Funds to cease to use such a name or any other name
indicating that it is advised by or otherwise connected with you or any
organization which shall have so succeeded to your business.
2. Sub-Advisers. You may engage one or more investment advisers which are
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either registered as such or specifically exempt from registration under the
Investment Advisers Act of 1940, as amended, to act as sub-advisers to provide
with respect to the Fund certain services set forth in Paragraphs 3 and 6
hereof, all as shall be set forth in a written contract to which the Registrant,
on behalf of the Fund, and you shall be parties, which contract shall be subject
to approval by the vote of a majority of the [Trustees/Directors] who are not
interested persons of you, the sub-adviser, or of the Registrant, cast in person
at a meeting called for the purpose of voting on such approval and by the vote
of a majority of the outstanding voting securities of the Fund and otherwise
consistent with the terms of the Investment Company Act of 1940 Act, as amended
(the "1940 Act").
3. Management Services.
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(a) You will regularly provide each Fund with investment research,
advice and supervision and will furnish continuously an investment program
for each Fund consistent with the investment objectives and policies of the
Fund. You will determine from time to time what
securities shall be purchased for a Fund, what securities shall be held or
sold by a Fund, and what portion of a Fund's assets shall be held
uninvested as cash, subject always to the provisions of the Registrant's
[Articles of Incorporation] [Declaration of Trust] and By-Laws and of the
1940 Act, and to the investment objectives, policies and restrictions of
the Fund, as each of the same shall be from time to time in effect, and
subject, further, to such policies and instructions as the Board of
[Trustees/Directors] of the Registrant may from time to time establish.
(b) Subject to the general supervision of the Board of
[Trustees/Directors] of the Registrant, you will provide certain
administrative services to each Fund. You will, to the extent such services
are not required to be performed by others pursuant to the custodian
agreement (or the transfer agency agreement to the extent that a person
other than you is serving thereunder as the Registrant's transfer agent),
(i) provide supervision of all aspects of each Fund's operations not
referred to in paragraph (a) above; (ii) provide each Fund with personnel
to perform such executive, administrative and clerical services as are
reasonably necessary to provide effective administration of the Fund; (iii)
arrange for, at the Registrant's expense, (a) the preparation for each Fund
of all required tax returns, (b) the preparation and submission of reports
to existing shareholders and (c) the periodic updating of the Fund's
prospectuses and statements of additional information and the preparation
of reports filed with the Securities and Exchange Commission and other
regulatory authorities; (iv) maintain all of the Funds' records and (v)
provide the Funds with adequate office space and all necessary office
equipment and services including telephone service, heat, utilities,
stationery supplies and similar items.
(c) You will also provide to the Registrant's Board of
[Trustees/Directors] such periodic and special reports as the Board may
reasonably request. You shall for all purposes herein be deemed to be an
independent contractor and shall, except as otherwise expressly provided or
authorized, have no authority to act for or represent the Registrant or the
Funds in any way or otherwise be deemed an agent of the Registrant or the
Funds.
(d) You will maintain all books and records with respect to the Funds'
securities transactions required by sub-paragraphs (b)(5), (6), (9) and
(10) and paragraph (f) of Rule 31a-1 under the 1940 Act (other than those
records being maintained by the Fund's custodian or transfer agent) and
preserve such records for the periods prescribed therefor by Rule 31a-2 of
the 1940 Act. You will also provide to the Registrant's Board of
[Trustees/Directors] such periodic and special reports as the Board may
reasonably request.
(e) You will notify the Registrant of any change in your membership
within a reasonable time after such change.
(f) Your services hereunder are not deemed exclusive and you shall be
free to render similar services to others.
4. Allocation of Charges and Expenses. You will pay all costs incurred by you
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in connection with the performance of your duties under paragraph 3. You will
pay the compensation and expenses of all personnel of yours and will make
available, without expense to the Funds, the services of such of your partners,
officers and employees as may duly be elected officers or [Trustees/Directors]
of the Registrant, subject to their individual consent to serve and to any
limitations imposed by law. You will not be required to pay any expenses of any
Fund other than those specifically allocated to you in this paragraph 4. In
particular, but without limiting the generality of the foregoing, you will not
be required to pay: (i) organization expenses of the Funds; (ii) fees and
expenses incurred by the Funds in connection with membership in investment
company organizations; (iii) brokers' commissions; (iv) payment for portfolio
pricing services to a pricing agent, if any; (v) legal, auditing or accounting
expenses (including an allocable portion of the cost of your employees rendering
legal and accounting services to the Fund); (vi) taxes or governmental fees;
(vii) the fees and expenses of the transfer agent of the Registrant; (viii) the
cost of preparing stock certificates or any other expenses, including clerical
expenses of issue, redemption or repurchase of Shares of the Fund; (ix) the
expenses of and fees for registering or qualifying Shares for sale and of
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maintaining the registration of the Funds and registering the Registrant as a
broker or a dealer; (x) the fees and expenses of [Trustees/Directors] of the
Registrant who are not affiliated with you; (xi) the cost of preparing and
distributing reports and notices to shareholders, the Securities and Exchange
Commission and other regulatory authorities; (xii) the fees or disbursements of
custodians of each Fund's assets, including expenses incurred in the performance
of any obligations enumerated by the [Declaration of Trust or] By-Laws of the
Registrant insofar as they govern agreements with any such custodian; or (xiii)
litigation and indemnification expenses and other extraordinary expenses not
incurred in the ordinary course of the Fund's business. You shall not be
required to pay expenses of activities which are primarily intended to result in
sales of Shares of the Funds.
5. Compensation of the Manager.
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(a) For all services to be rendered and payments made as provided in
paragraphs 3 and 4 hereof, the Registrant on behalf of each Fund will pay
you each month a fee at an annual rate equal to the percentage of the
average daily net assets of the Fund set forth with respect to such Fund on
Annex A. The "average daily net assets" of a Fund shall be determined on
the basis set forth in the Fund's prospectus(es) or otherwise consistent
with the 1940 Act and the regulations promulgated thereunder.
(b) In addition to the foregoing, you may from time to time agree not
to impose all or a portion of your fee otherwise payable hereunder (in
advance of the time such fee or portion thereof would otherwise accrue)
and/or undertake to pay or reimburse a Fund for all or a portion of its
expenses not otherwise required to be borne or reimbursed by you. Any such
fee reduction or undertaking may be discontinued or modified by you at any
time.
6. Avoidance of Inconsistent Position. In connection with purchases or sales
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of portfolio securities for the account of the Funds, neither you nor any of
your partners, officers or employees will act as a principal, except as
otherwise permitted by the 1940 Act. You or your agent shall arrange for the
placing of all orders for the purchase and sale of portfolio securities for each
Fund's account with brokers or dealers (including Xxxxxxx, Xxxxx & Co.) selected
by you. In the selection of such brokers or dealers (including Xxxxxxx, Sachs &
Co.) and the placing of such orders, you are directed at all times to seek for
the Funds the most favorable execution and net price available. It is also
understood that it is desirable for the Funds that you have access to
supplemental investment and market research and security and economic analyses
provided by brokers who may execute brokerage transactions at a higher cost to a
Fund than may result when allocating brokerage to other brokers on the basis of
seeking the most favorable price and efficient execution. Therefore, you are
authorized to place orders for the purchase and sale of securities for the Funds
with such brokers, subject to review by the Registrant's Board of
[Trustees/Directors] from time to time with respect to the extent and
continuation of this practice. It is understood that the services provided by
such brokers may be useful to you in connection with your services to other
clients. If any occasion should arise in which you give any advice to your
clients concerning the Shares of the Funds, you will act solely as investment
counsel for such clients and not in any way on behalf of any Fund. You may, on
occasions when you deem the purchase or sale of a security to be in the best
interests of a Fund as well as your other customers (including any other Series
or any other investment company or advisory account for which you or any of your
affiliates acts as an investment adviser), aggregate, to the extent permitted by
applicable laws and regulations, the securities to be sold or purchased in order
to obtain the best net price and the most favorable execution. In such event,
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by you in the manner you consider to
be the most equitable and consistent with your fiduciary obligations to the Fund
and to such other customers. In addition, you are authorized to take into
account the sale of shares of the Registrant in allocating purchase and sale
orders for portfolio securities to brokers or dealers (including brokers and
dealers that are affiliated with you), provided that you believe that the
quality of the transaction and the commission is comparable to what they would
be with other qualified firms.
7. Limitation of Liability of Manager and Fund. You shall not be liable for
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any error of judgment or
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mistake of law or for any loss suffered by a Fund in connection with the matters
to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on your part in the performance of
your duties or from reckless disregard by you of your obligations and duties
under this Agreement. Any person, even though also employed by you, who may be
or become an employee of and paid by the Registrant or the Funds shall be
deemed, when acting within the scope of his employment by the Funds, to be
acting in such employment solely for the Funds and not as your employee or
agent. The Fund shall not be liable for any claims against any other Series of
the Registrant.
8. Duration and Termination of this Agreement. This Agreement shall remain in
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force as to each Fund until June 30, 1998 and shall continue for periods of one
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the [Trustees/Directors] who
are not interested persons (as defined in the 0000 Xxx) of the Registrant and
have no financial interest in this Agreement, cast in person at a meeting
called for the purpose of voting on such approval and (b) by a vote of a
majority of the Board of [Trustees/Directors] of the Registrant or of a majority
of the outstanding voting securities of such Fund. The aforesaid requirement
that continuance of this Agreement be "specifically approved at least annually"
shall be construed in a manner consistent with the 1940 Act and the rules and
regulations thereunder. This Agreement may, on 60 days written notice to the
other party, be terminated in its entirety or as to a particular Fund at any
time without the payment of any penalty, by the Board of [Trustees/Directors] of
the Registrant, by vote of a majority of the outstanding voting securities of a
Fund, or by you. This Agreement shall automatically terminate in the event of
its assignment. In interpreting the provisions of this Agreement, the
definitions contained in Section 2(a) of the 1940 Act (particularly the
definitions of "interested person," "assignment" and "majority of the
outstanding voting securities"), as from time to time amended, shall be applied,
subject, however, to such exemptions as may be granted by the Securities and
Exchange Commission by any rule, regulation or order.
9. Amendment of this Agreement. No provisions of this Agreement may be
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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. No amendment of this Agreement shall be
effective as to a Fund until approved by vote of the holders of a majority of
the outstanding voting securities of such Fund and by a majority of the Board of
[Trustees/Directors] of the Registrant, including a majority of the
[Trustees/Directors] who are not interested persons (as defined in the 0000 Xxx)
of the Registrant and have no financial interest in this Agreement, cast in
person at a meeting called for the purpose of voting on such amendment.
Notwithstanding the foregoing, this Agreement may be amended at any time to add
a new Fund to Annex A provided such amendment is approved by a majority of the
Board of [Trustees/Directors] of the Registrant, including a majority of the
[Trustees/Directors] who are not interested persons (as defined in the 0000 Xxx)
of the Registrant and have no financial interest in this Agreement. This
paragraph does not apply to any agreement described in paragraph 5(b) hereof,
which shall be effective during the period you specify in a prospectus, sticker,
or other document made available to current or prospective shareholders.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
11. Miscellaneous. The captions in this Agreement are included for convenience
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of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[The name Xxxxxxx Xxxxx Trust is the designation of the [Trustees] for the
time being under [an Amended and Restated Agreement and Declaration of Trust
dated December 5, 1991], [under a Declaration of Trust dated January 29, 1997]
as amended from time to time, and all persons dealing with the Trust or a Funds
must look solely to the property of the Trust or such Fund for the enforcement
of any claims as none of Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Trust. No
Fund shall be liable for any claims against any other Series.
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If you are in agreement with the foregoing, please sign the form of
acceptance on the Registrant counterpart of this letter and return such
counterpart to the Registrant, whereupon this letter shall become a binding
contract.
Yours very truly,
[XXXXXXX SACHS EQUITY PORTFOLIOS, INC.]
[XXXXXXX XXXXX TRUST]
Attest:_________________________ By: _________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Grip
Secretary of the Registrant President of the Registrant
The foregoing Agreement is hereby accepted as of the date thereof.
[XXXXXXX SACHS ASSET MANAGEMENT,
A DIVISION OF XXXXXXX, XXXXX & CO.]
[XXXXXXX SACHS FUNDS MANAGEMENT L.P.]
[XXXXXXX XXXXX ASSET MANAGEMENT INTERNATIONAL]
[AN AFFILIATE OF XXXXXXX, SACHS & CO.]
Attest:_________________________ By: _________________________
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxx
Counsel to the Funds Group [title]
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