EXHIBIT (d)
FORM OF
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this day of , 2002 by and between XXXXXXXX
CAPITAL MANAGEMENT TRUST, a Delaware statutory trust (hereinafter referred to
as the "Trust"), and XXXXXXXX CAPITAL MANAGEMENT, LLC, a Delaware limited
liability company (hereinafter referred to as the "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940, as amended
(hereinafter referred to as the "Investment Company Act"); and
WHEREAS, the Investment Adviser is willing to provide investment
advisory services to the Trust on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Investment Adviser agree as follows:
ARTICLE I
DUTIES OF THE INVESTMENT ADVISER
(a) General. The Trust hereby employs the Investment Adviser to act as
investment adviser of each Series of the Trust that executes an exhibit to this
Agreement (each, a "Fund" and together, the "Funds") and to furnish, or arrange
for affiliates to furnish, the investment advisory services described below,
subject to the supervision of the Trustees of the Trust, for the period and on
the terms and conditions set forth in this Agreement. The Investment Adviser
hereby accepts such employment and agrees during such period, at its own
expense, to render, or arrange for the rendering of, such services and to assume
the obligations herein set forth for the compensation provided for herein. The
Investment Adviser and its affiliates shall for all purposes herein be deemed to
be an independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust or any Fund in
any way or otherwise be deemed an agent of the Trust or any Fund.
(b) Investment Advisory Services. The Investment Adviser shall provide
each Fund with such investment research, advice and supervision as the latter
may from time to time consider necessary for the proper supervision of the
assets of each Fund, shall furnish continuously an investment program for each
Fund and shall determine from time to time which securities shall be purchased,
sold or exchanged and what portion of the assets of each Fund shall
be held in the various securities in which each Fund invests or cash, subject
always to the restrictions of the Declaration of Trust and By-Laws of the Trust,
as amended from time to time, the provisions of the Investment Company Act and
the statements relating to each Fund's investment objectives, investment
policies and investment restrictions as the same are set forth in the currently
effective prospectus relating to the shares of beneficial interest of that Fund
under the Securities Act of 1933, as amended (the "Prospectus"). The Investment
Adviser shall also make decisions for each Fund as to the manner in which voting
rights, rights to consent to corporate action and any other rights pertaining to
that Fund's portfolio securities shall be exercised. Should the Trustees at any
time, however, make any definite determination as to investment policy and
notify the Investment Adviser thereof in writing, the Investment Adviser shall
be bound by such determination for the period, if any specified in such notice
or until similarly notified that such determination has been revoked. The
Investment Adviser shall take, on behalf of each Fund, all actions that it deems
necessary to implement the investment policies determined as provided above, and
in particular to place all orders for the purchase or sale of portfolio
securities for each Fund's account with brokers or dealers selected by it, and
to that end, the Investment Adviser is authorized as the agent of each Fund to
give instructions to that Fund's custodian as to deliveries of securities and
payments of cash for the account of the Fund. In connection with the selection
of such brokers or dealers and the placing of such orders with respect to assets
for each Fund, the Investment Adviser is directed at all times to seek to obtain
execution and price within the policy guidelines determined by the Trustees of
the Trust and set forth in the Prospectus of each Fund. Subject to this
requirement and the provisions of the Investment Company Act, the Securities
Exchange Act of 1934, as amended, and other applicable provisions of law, the
Investment Adviser may select brokers or dealers with which it or the Trust is
affiliated.
ARTICLE II
ALLOCATION OF CHARGES AND EXPENSES
(a) The Investment Adviser. The Investment Adviser assumes and shall
pay for maintaining the staff and personnel necessary to perform its obligations
under this Agreement, and shall pay all compensation of officers of the Funds
and all Trustees of the Trust who are affiliated persons of the Investment
Adviser.
(b) The Funds. Each Fund assumes and shall pay or cause to be paid all
of its other expenses (except for the expenses incurred by the Distributor) and
its allocable share of Trust expenses, including, without limitation, interest
charges, taxes, brokerage fees and commissions; expenses of issue, repurchase
and redemption of shares; premiums of insurance for the Trust, its Trustees and
officers and fidelity bond premiums; applicable fees, interest charges and
expenses of third parties, including the fees paid to the Investment Adviser,
administrator, custodian and accounting agent and transfer agent; fees of
pricing, interest, dividend, credit and other reporting services; costs of
memberships in trade associations; telecommunications expenses; funds
transmission expenses; auditing, legal and compliance expenses; cost of forming
the Trust and maintaining its existence; costs of preparing and printing the
Trust's prospectuses, statements of additional information and shareholder
reports and delivering them to existing shareholders; expenses of meetings of
shareholders and proxy solicitations thereof, costs of maintaining books and
accounts and preparing tax returns; costs of reproduction, stationery and
supplies; fees and
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expenses of the independent Trustees; compensation of the Trust's officers and
employees who are not employees of the Investment Adviser, and costs of other
personnel (who may be employees of the Investment Adviser) performing services
for the Trust; costs of Trustee board meetings; Securities and Exchange
Commission registration fees and related expenses; and state or foreign
securities laws registration fees and related expenses.
ARTICLE III
COMPENSATION OF THE INVESTMENT ADVISER
Advisory Fee. With respect to each Fund, the Trust shall pay to the
Investment Adviser, for all services rendered to each Fund by the Investment
Adviser hereunder, the fees set forth in the exhibits attached hereto.
ARTICLE IV
LIMITATION OF LIABILITY OF THE INVESTMENT ADVISER
The Investment Adviser shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for any act or
omission in the management of any Fund, except for willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder. As used in this
Article IV, the term "Investment Adviser" shall include any affiliates of the
Investment Adviser performing services for a Fund contemplated hereby and
directors, officers and employees of the Investment Adviser and such affiliates.
ARTICLE V
ACTIVITIES OF THE INVESTMENT ADVISER
The services of the Investment Adviser to the Trust are not to be
deemed to be exclusive, the Investment Adviser being free to render services to
others. It is understood that Trustees of the Trust, officers, employees and
shareholders of the Funds are or may become interested in the Investment
Adviser, as directors, officers, employees and shareholders or otherwise and
that directors, officers, employees and shareholders of the Investment Adviser
are or may become similarly interested in the Trust, and that the Investment
Adviser may become interested in the Trust as shareholder of a Fund or
otherwise.
ARTICLE VI
DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective as of the date first above
written and shall remain in force with respect to each Fund presently set forth
on an exhibit (and any subsequent Funds added pursuant to an exhibit during the
initial term of this Agreement) for a period of two years and thereafter, but
only so long as such continuance is specifically approved at least annually by
(i) the Trustees of the Trust, or by the vote of a majority of the outstanding
voting securities of each Fund set forth on an exhibit at that time, and (ii) a
majority of those Trustees who are not
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parties to this Agreement or interested persons of any such party cast in person
at a meeting called for the purpose of voting on such approval. If a Fund is
added after the first approval by the Trustees as described above, this
Agreement will be effective as to that Fund upon execution of the applicable
exhibit and will continue in effect until the next annual approval of this
Agreement by the Trustees and thereafter for successive periods of one year,
subject to approval as described above.
This Agreement may be terminated at any time with respect to any Fund,
without the payment of any penalty, by the Trustees of the Trust or by vote of a
majority of the outstanding voting securities of that Fund, or by the Investment
Adviser, on sixty days' written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment.
ARTICLE VII
AMENDMENTS OF THIS AGREEMENT
This Agreement may be amended by the parties with respect to a Fund
only if such amendment is specifically approved by the vote of the Trustees of
the Trust, including a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval and, when required by the
Investment Company Act, by the vote of a majority of the outstanding voting
securities of that Fund.
ARTICLE VIII
DEFINITIONS OF CERTAIN TERMS
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
ARTICLE IX
GOVERNING LAW
This Agreement shall be construed in accordance with laws of the State
of New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
ARTICLE X
LIMITATION OF LIABILITY
Copies of the Certificate of Trust of the Trust are on file with the
Secretary of State of the State of Delaware, and notice is hereby given that
this agreement is executed on behalf of the trustees of the Trust. No trustee,
officer, employee or agent of the Trust when acting in such capacity shall be
subject to any personal liability whatsoever, in his or her individual capacity,
to
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any person in connection with the affairs of the Trust; and all such persons
shall look solely to the Trust's property for satisfaction of claims of any
nature against a trustee, officer, employee or agent of the Trust in connection
with the affairs of the Trust.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXXXX CAPITAL MANAGEMENT TRUST
Attest:
By:
---------------------------------
XXXXXXXX CAPITAL MANAGEMENT, LLC
Attest:
By:
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EXHIBIT A
TO THE
INVESTMENT ADVISORY AGREEMENT
XXXXXXXX CAPITAL LIQUID ASSETS FUND
The following provisions are hereby incorporated and made part of the
Investment Advisory Agreement dated , 2002 between Xxxxxxxx Capital
Management Trust and Xxxxxxxx Capital Management, LLC.
For all services rendered by Investment Adviser hereunder, the Trust,
on behalf of the above-named Fund, shall pay to the Investment Adviser and the
Investment Adviser agrees to accept as full compensation for all services
rendered hereunder, an annual investment advisory fee equal to 0.12 of 1% of the
average daily net assets of the Fund.
The portion of the fee based upon the average daily net assets of the
Fund shall be accrued daily at the rate of 1/365th of 0.12 of 1% applied to the
daily net assets of the Fund. The advisory fee so accrued shall be paid to
Investment Adviser monthly.
If this Agreement becomes effective subsequent to the first day of a
month or shall terminate before the last 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 fee as set forth above. Payment of the
Investment Adviser's compensation for the preceding month shall be made as
promptly as possible after completion of the calculation of the fee as set forth
above. During any period when the determination of net asset value is suspended
by the Trustees, the average daily net asset value of a share as of the last day
prior to such suspension shall for this purpose be deemed to be the average
daily net asset value at the close of each succeeding day until it is again
determined.
In consideration of the mutual covenants set forth in the Investment
Advisory Agreement dated , 2002 between Xxxxxxxx Capital Management Trust
and Xxxxxxxx Capital Management, LLC, Xxxxxxxx Capital Management Trust executes
and delivers this Exhibit on behalf of the Fund set forth above.
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Witness the due execution hereof this day of , 2002.
Attest: XXXXXXXX CAPITAL MANAGEMENT, LLC
By:
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Attest: XXXXXXXX CAPITAL MANAGEMENT TRUST
By:
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