INVESTMENT MANAGEMENT CONTRACT
AGREEMENT made as of the 23rd day of August, 1996, by and between
Xxxxxx Xxxxxxxx Investment Trust (the "Trust"), on behalf of Xxxxxx Xxxxxxxx
Microcap Fund (the "Portfolio"), and Xxxxxx Xxxxxxxx Capital Management
Incorporated (the "Adviser").
WHEREAS, the Trust is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended,
consisting of several series of shares, each having its own investment policies;
and
WHEREAS, the Trust has retained SEI Financial Management Corporation
(the "Administrator") to provide administration of the Trust's operations,
subject to the control of the Board of Trustees;
WHEREAS, the Trust desires to retain the Adviser to render investment
management services with respect to the Portfolio, and the Adviser is willing to
render such services:
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. Duties of Adviser. The Trust employs the Adviser to manage the
investment and reinvestment of the assets, and to continuously
review, supervise, and administer the investment programs of the
Portfolio, to determine in its discretion the securities to be
purchased or sold, to provide the Administrator and the Trust with
records concerning the Adviser's activities which the Trust is
required to maintain, and to render regular reports to the
Administrator and to the Trust's officers and trustees concerning
the Adviser's discharge of the foregoing responsibilities.
The Adviser shall discharge the foregoing responsibilities subject
to the control of the Board of Trustees of the Trust and in
compliance with such policies as the Trustees may from time to time
establish, and in compliance with the objectives, policies, and
limitations for the Portfolio set forth in the Portfolio's
prospectus and statement of additional information, as amended from
time to time, and applicable laws and regulations.
The Adviser accepts such employment and agrees, at its own expense,
to render the services and to provide the office space, furnishings
and equipment and the personnel
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required by it to perform the services on the terms and for the
compensation provided herein.
2. Portfolio Transactions. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of
portfolio securities for the Portfolio and is directed to use its
best efforts to obtain the best net results as described from time
to time in the Portfolio's Prospectus and Statement of Additional
Information. The Adviser will promptly communicate to the
Administrator and to the officers and the Trustees of the Trust such
information relating to portfolio transactions as they may
reasonably request.
It is understood that the Adviser will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or be
in breach of any obligation owing to the Trust under this Agreement,
or otherwise, solely by reason of its having directed a securities
transaction on behalf of the Trust to a broker-dealer in compliance
with the provisions of Sectiony28(e) of the Securities Exchange Act
of 1934 or as otherwise permitted from time to time by the
Portfolio's Prospectus and Statement of Additional Information.
3. Compensation of the Adviser. For the services to be rendered by the
Adviser as provided in Sectionsy1 and 2 of this Agreement, the Trust
shall pay to the Adviser compensation at the rate specified in the
Schedule(s) which are attached hereto and made a part of this
Agreement. Such compensation shall be paid to the Adviser at the end
of each month, and calculated by applying a daily rate, based on the
annual percentage rates as specified in the attached Schedule(s), to
the assets of the Portfolio. The fee shall be based on the average
daily net assets for the month involved (less any assets of the
Portfolio held in non-interest bearing special deposits with a
Federal Reserve Bank).
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the termination
of this Agreement.
4. Other Expenses. The Adviser shall pay all expenses of printing and
mailing reports, prospectuses, statements of additional information,
and sales literature relating to its efforts to solicit prospective
clients.
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5. Excess Expenses. If the expenses for the Portfolio for any fiscal
year (including fees and other amounts payable to the Adviser, but
excluding interest, taxes, brokerage costs, litigation, and other
extraordinary costs) as calculated every business day would exceed
the expense limitations imposed on investment companies by any
applicable statute or regulatory authority of any jurisdiction in
which shares of the Portfolio are qualified for offer and sale, the
Adviser shall bear such excess cost.
However, the Adviser will not bear expenses of the Portfolio which
would result in the Portfolio's inability to qualify as a regulated
investment company under provisions of the Internal Revenue Code of
1986, as amended. Payment of expenses by the Adviser pursuant to
this Sectiony5 shall be settled on a monthly basis (subject to
fiscal year end reconciliation) by a reduction in the fee payable to
the Adviser for such month pursuant to Sectiony3 and, if such
reduction shall be insufficient to offset such expenses, by
reimbursing the Trust.
6. Reports. The Trust and the Adviser agree to furnish to each other,
if applicable, current prospectuses, proxy statements, reports to
Shareholders, certified copies of their financial statements, and
such other information with regard to their affairs as each may
reasonably request.
7. Status of Adviser. The services of the Adviser to the Trust are not
to be deemed exclusive, and the Adviser shall be free to render
similar services to others so long as its services to the Trust are
not impaired thereby. The Adviser shall 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 in any way or otherwise be deemed an agent of the Trust.
8. Certain Records. Any records required to be maintained and preserved
pursuant to the provisions of Ruley31a-1 and Ruley31a-2 promulgated
under the Investment Company Act of 1940 which are prepared or
maintained by the Adviser on behalf of the Trust are the property of
the Trust and will be surrendered promptly to the Trust on request.
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9. Limitation of Liability of Adviser. The duties of the Adviser shall
be confined to those expressly set forth herein, and no implied
duties are assumed by or may be asserted against the Adviser
hereunder. The 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 carrying out its duties hereunder, except
a loss resulting from 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, except
as may otherwise be provided under provisions of applicable state
law or Federal securities law which cannot be waived or modified
hereby. (As used in this Paragraphy9, the term "Adviser" shall
include directors, officers, employees and other corporate agents of
the Adviser as well as that corporation itself).
10. Permissible Interests. Trustees, agents, and shareholders of the
Trust are or may be interested in the Adviser (or any successor
thereof) as directors, partners, officers, or shareholders, or
otherwise; directors, partners, officers, agents, and shareholders
of the Adviser are or may be interested in the Trust as Trustees,
shareholders or otherwise; and the Adviser (or any Successor) is or
may be interested in the Trust as a Shareholder or otherwise. In
addition, brokerage transactions for the Portfolio may be effected
through affiliates of the Adviser if approved by the Board of
Trustees, subject to the rules and regulations of the Securities and
Exchange Commission.
11. License of Adviser's Name. The Adviser hereby agrees to grant a
license to the Trust for use of its name in the names of the
Portfolio for the term of this Agreement and such license shall
terminate upon termination of this Agreement.
12. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall remain in effect until two years from the
date first set forth above, and thereafter, for periods of one year
so long as such continuance thereafter is specifically approved at
least annually (a)yby the vote of a majority of those Trustees of
the Trust 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 (b)yby the Trustees of
the Trust or by vote of a majority of the outstanding voting
securities of each Portfolio; provided, however, that if the
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shareholders of the Portfolio fail to approve the Agreement as
provided herein, the Adviser may continue to serve hereunder in the
manner and to the extent permitted by the Investment Company Act of
1940 and rules and regulations thereunder. The foregoing requirement
that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the
Investment Company Act of 1940 and the rules and regulations
thereunder.
This Agreement may be terminated at any time, without the payment of
any penalty by vote of a majority of the Trustees of the Trust or by
vote of a majority of the outstanding voting securities of the
Portfolio on not less than 30 days nor more than 60 days written
notice to the Adviser, or by the Adviser at any time without the
payment of any penalty, on 90 days written notice to the Trust. This
Agreement will automatically and immediately terminate in the event
of its assignment. Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the other
party at any office of such party.
As used in this Sectiony12, the terms "assignment", "interested
persons", and a "vote of a majority of the outstanding voting
securities" shall have the respective meanings set forth in the
Investment Company Act of 1940 and the rules and regulations
thereunder, subject to such exemptions as may be granted by the
Securities and Exchange Commission under said Act.
13. Notice. Any notice required or permitted to be given by either party
to the other shall be deemed sufficient if sent by registered or
certified mail, postage prepaid, addressed by the party giving
notice to the other party at the last address furnished by the other
party to the party giving notice: if to the Trust, at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 and if to the Adviser, at 000xXxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
14. Severability. 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.
A copy of the Certificate of Trust of the Trust is on file with the Secretary of
State of the State of Delaware, and notice is hereby given that this instrument
is executed on behalf of the Trustees of the Trust as Trustees, and is not
binding upon any of
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the Trustees, officers, or shareholders of the Trust individually but binding
only upon the assets and property of the Trust.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first written above.
XXXXXX XXXXXXXX INVESTMENT TRUST
on behalf of
Xxxxxx Xxxxxxxx Microcap Fund
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Secretary
Attest: /s/ Xxxxxx Xxxxxxxxx, Xx.
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XXXXXX XXXXXXXX CAPITAL MANAGEMENT INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
Attest: /s/ Xxxxxx Xxxxxxxxx, Xx.
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Schedule
to the
Investment Advisory Agreement
between
Xxxxxx Xxxxxxxx Investment Trust
on behalf of
Xxxxxx Xxxxxxxx Microcap Fund
and
Xxxxxx Xxxxxxxx Capital Management Incorporated
Pursuant to Articley3, the Trust, on behalf of the Portfolio, shall pay the
Adviser compensation at an annual rate as follows:
Portfolio Fee
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Xxxxxx Xxxxxxxx Microcap 1.50% of the average
Fund daily net assets
