MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT ("Agreement") is made
this 1st day of December, 2005, by and between Xxxxx
Xxxxxx Institutional Cash Management Fund Inc., a
Maryland Corporation (the "Corporation") and Xxxxx
Xxxxxx Fund Management LLC, a Delaware limited liability
company (the "Manager").
WHEREAS, the Corporation is registered as a
management investment company under the Investment Company
Act of 1940, as amended (the "1940 Act");
WHEREAS, the Manager is engaged primarily in
rendering investment advisory, management and
administrative services and is registered as an investment
adviser under the Investment Advisers Act of 1940, as
amended;
WHEREAS, the Corporation wishes to retain the
Manager to provide investment advisory, management, and
administrative services to the Corporation with respect
to the series of the Corporation designated in Schedule A
annexed hereto (the "Fund"); and
WHEREAS, the Manager is willing to furnish such
services on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and
mutual covenants herein contained, it is agreed as follows:
1. The Corporation hereby appoints the Manager to
act as investment adviser and administrator of the Fund for
the period and on the terms set forth in this Agreement.
The Manager accepts such appointment and agrees to render
the services herein set forth, for the compensation herein
provided.
2. The Fund shall at all times keep the Manager
fully informed with regard to the securities owned by it,
its funds available, or to become available, for investment,
and generally as to the condition of its affairs. It shall
furnish the Manager with such other documents and
information with regard to its affairs as the Manager may
from time to time reasonably request.
3. (a) Subject to the supervision of the
Corporation's Board of Directors (the "Board"), the Manager
shall regularly provide the Fund with investment research,
advice, management and supervision and shall furnish a
continuous investment program for the Fund's portfolio of
securities and other investments consistent with the Fund's
investment objectives, policies and restrictions, as stated
in the Fund's current Prospectus and Statement of Additional
Information. The Manager shall determine from time to time
what securities and other investments will be purchased,
retained, sold or exchanged by the Fund and what portion of
the assets of the Fund's portfolio will be held in the various
securities and other investments in which the Fund invests,
and shall implement those decisions, all subject to the
provisions of the Corporation's Articles of Incorporation and
By-Laws (collectively, the "Governing Documents"), the 1940 Act,
and the applicable rules and regulations promulgated thereunder
by the Securities and Exchange Commission (the "SEC") and
interpretive guidance issued thereunder by the SEC staff and any
other applicable federal and state law, as well as the
investment objectives, policies and restrictions of the Fund
referred to above, and any other specific policies adopted by
the Board and disclosed to the Manager. The Manager is
authorized as the agent of the Corporation to give instructions
to the custodian of the Fund as to deliveries of securities and
other investments and payments of cash for the account of the Fund.
Subject to applicable provisions of the 1940 Act and direction
from the Board, the investment program to be provided hereunder
may entail the investment of all or substantially all of the assets
of a Fund in one or more investment companies. The Manager will
place orders pursuant to its investment determinations for the Fund
either directly with the issuer or with any broker or dealer,
foreign currency dealer, futures commission merchant or others
selected by it. In connection with the selection of such brokers
or dealers and the placing of such orders, subject to applicable law,
brokers or dealers may be selected who also provide brokerage and
research services (as those terms are defined in Section 28(e) of the
Securities Exchange Act of 1934) to the Funds and/or the other
accounts over which the Manager or its affiliates exercise investment
discretion. The Manager is authorized to pay a broker or dealer who
provides such brokerage and research services a commission for executing
a portfolio transaction for a Fund which is in excess of the amount of
commission another broker or dealer would have charged for effecting
that transaction if the Manager determines in good faith that such amount
of commission is reasonable in relation to the value of the brokerage
and research services provided by such broker or dealer. This
determination may be viewed in terms of either that particular
transaction or the overall responsibilities which the Manager and its
affiliates have with respect to accounts over which they exercise
investment discretion. The Board may adopt policies and procedures that
modify and restrict the Manager's authority regarding the execution of
the Fund's portfolio transactions provided herein. The Manager shall
also provide advice and recommendations with respect to other aspects of
the business and affairs of the Fund, shall exercise voting rights, rights
to consent to corporate action and any other rights pertaining to a Fund's
portfolio securities subject to such direction as the Board may provide,
and shall perform such other functions of investment management and
supervision as may be directed by the Board.
(b) Subject to the direction and control of the Board, the
Manager shall perform such administrative and management services as may
from time to time be reasonably requested by the Fund as necessary for
the operation of the Fund, such as (i) supervising the overall
administration of the Fund, including negotiation of contracts and fees
with and the monitoring of performance and xxxxxxxx of the Fund's transfer
agent, shareholder servicing agents, custodian and other independent
contractors or agents, (ii) providing certain compliance, fund accounting,
regulatory reporting, and tax reporting services, (iii) preparing or
participating in the preparation of Board materials, registration statements,
proxy statements and reports and other communications to shareholders, (iv)
maintaining the Fund's existence, and (v) during such times as shares are
publicly offered, maintaining the registration and qualification of the
Fund's shares under federal and state laws. Notwithstanding the foregoing,
the Manager shall not be deemed to have assumed any duties with respect to,
and shall not be responsible for, the distribution of the shares of any
Fund, nor shall the Manager be deemed to have assumed or have any
responsibility with respect to functions specifically assumed by any
transfer agent, fund accounting agent, custodian, shareholder servicing
agent or other agent, in each case employed by the Fund to perform such
functions.
(c) The Fund hereby authorizes any entity or person associated
with the Manager which is a member of a national securities exchange to
effect any transaction on the exchange for the account of the Fund which
is permitted by Section 11(a) of the Securities Exchange Act of 1934, as
amended, and Rule 11a2-2(T) thereunder, and the Fund hereby consents to
the retention of compensation for such transactions in accordance with
Rule 11a2-2(T)(a)(2)(iv). Notwithstanding the foregoing, the Manager
agrees that it will not deal with itself, or with members of the Board or
any principal underwriter of the Fund, as principals or agents in making
purchases or sales of securities or other property for the account of the
Fund, nor will it purchase any securities from an underwriting or selling
group in which the Manager or its affiliates is participating, or arrange for
purchases and sales of securities between a Fund and another account advised
by the Manager or its affiliates, except in each case as permitted by the 1940
Act and in accordance with such policies and procedures as may be adopted by
a Fund from time to time, and will comply with all other provisions of the
Governing Documents and the Fund's then-current Prospectus and Statement of
Additional Information relative to the Manager and its directors and officers.
4. Subject to the Board's approval, the Manager or the Fund may
enter into contracts with one or more investment subadvisers or
subadministrators, including without limitation, affiliates of the Manager,
in which the Manager delegates to such investment subadvisers or
subadministrators any or all its duties specified hereunder, on such terms
as the Manager will determine to be necessary, desirable or appropriate,
provided that in each case the Manager shall supervise the activities of each
such subadviser or subadministrator and further provided that such contracts
impose on any investment subadviser or subadministrator bound thereby all the
conditions to which the Manager is subject hereunder and that such contracts
are entered into in accordance with and meet all applicable requirements of
the 1940 Act.
5. (a) The Manager, at its expense, shall supply the Board
and officers of the Corporation with all information and reports reasonably
required by them and reasonably available to the Manager and shall furnish
the Fund with office facilities, including space, furniture and equipment and
all personnel reasonably necessary for the operation of the Fund. The Manager
shall oversee the maintenance of all books and records with respect to
the Fund's securities transactions and the keeping of the Fund's books of
account in accordance with all applicable federal and state laws and
regulations. In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Manager hereby agrees that any records that it maintains for
the Fund are the property of the Fund, and further agrees to surrender
promptly to the Fund any of such records upon the Fund's request. The
Manager further agrees to arrange for the preservation of the records
required to be maintained by Rule 31a-1 under the 1940 Act for the periods
prescribed by Rule 31a-2 under the 1940 Act. The Manager shall authorize
and permit any of its directors, officers and employees, who may be elected
as Board members or officers of the Fund, to serve in the capacities in
which they are elected.
(b) The Manager shall bear all expenses, and shall furnish all
necessary services, facilities and personnel, in connection with its
responsibilities under this Agreement. Other than as herein specifically
indicated, the Manager shall not be responsible for the Fund's expenses,
including, without limitation, advisory fees; distribution fees; interest;
taxes; governmental fees; voluntary assessments and other expenses incurred
in connection with membership in investment company organizations;
organization costs of the Fund; the cost (including brokerage commissions,
transaction fees or charges, if any) in connection with the purchase or sale
of the Fund's securities and other investments and any losses in connection
therewith; fees and expenses of custodians, transfer agents, registrars,
independent pricing vendors or other agents; legal expenses; loan commitment
fees; expenses relating to share certificates; expenses relating to the
issuing and redemption or repurchase of the Fund's shares and servicing
shareholder accounts; expenses of registering and qualifying the Fund's shares
for sale under applicable federal and state law; expenses of preparing,
setting in print, printing and distributing prospectuses and statements of
additional information and any supplements thereto, reports, proxy statements,
notices and dividends to the Fund's shareholders; costs of stationery;
website costs; costs of meetings of the Board or any committee thereof,
meetings of shareholders and other meetings of the Fund; Board fees; audit
fees; travel expenses of officers, members of the Board and employees of the
Fund, if any; and the Fund's pro rata portion of premiums on any fidelity
bond and other insurance covering the Fund and its officers, Board members
and employees; litigation expenses and any non-recurring or extraordinary
expenses as may arise, including, without limitation, those relating to
actions, suits or proceedings to which the Fund is a party and the legal
obligation which the Fund may have to indemnify the Fund's Board members
and officers with respect thereto.
6. No member of the Board, officer or employee of the Corporation or
Fund shall receive from the Corporation or Fund any salary or other
compensation as such member of the Board, officer or employee while he is
at the same time a director, officer, or employee of the Manager or any
affiliated company of the Manager, except as the Board may decide. This
paragraph shall not apply to Board members, executive committee members,
consultants and other persons who are not regular members of the Manager's
or any affiliated company's staff.
7. As compensation for the services performed and the facilities
furnished and expenses assumed by the Manager, including the services of any
consultants retained by the Manager, the Fund shall pay the Manager, as
promptly as possible after the last day of each month, a fee, computed
daily at an annual rate set forth opposite the Fund's name on Schedule A
annexed hereto, provided however, that if the Fund invests all or
substantially all of its assets in another registered investment company
for which the Manager or an affiliate of the Manager serves as investment
adviser or investment manager, the annual fee computed as set forth on
such Schedule A shall be reduced by the aggregate management fees allocated
to that Fund for the Fund's then-current fiscal year from such other
registered investment company. The first payment of the fee shall be made
as promptly as possible at the end of the month succeeding the effective
date of this Agreement, and shall constitute a full payment of the fee due
the Manager for all services prior to that date. If this Agreement is
terminated as of any date not the last day of a month, such fee shall be
paid as promptly as possible after such date of termination, shall be based
on the average daily net assets of the Fund in that period from the
beginning of such month to such date of termination, and shall be that
proportion of such average daily net assets as the number of business days
in such period bears to the number of business days in such month. The
average daily net assets of the Fund shall in all cases be based only on
business days and be computed as of the time of the regular close of business
of the New York Stock Exchange, or such other time as may be determined
by the Board.
8. The Manager assumes no responsibility under this Agreement other
than to render the services called for hereunder, in good faith, and 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 execution
of securities transactions for a Fund, provided that nothing in this
Agreement shall protect the Manager against any liability to the Fund to
which the Manager would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
hereunder. As used in this Section 8, the term "Manager" shall include any
affiliates of the Manager performing services for the Corporation or the
Fund contemplated hereby and the partners, shareholders, directors, officers
and employees of the Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the right of
any director, officer, or employee of the Manager who may also be a Board
member, officer, or employee of the Corporation or the Fund, to engage in any
other business or to devote his time and attention in part to the management
or other aspects of any other business, whether of a similar nature or a
dissimilar nature, nor to limit or restrict the right of the Manager to engage
in any other business or to render services of any kind, including investment
advisory and management services, to any other fund, firm, individual or
association. If the purchase or sale of securities consistent with the
investment policies of a Fund or one or more other accounts of the Manager
is considered at or about the same time, transactions in such securities will
be allocated among the accounts in a manner deemed equitable by the Manager.
Such transactions may be combined, in accordance with applicable laws and
regulations, and consistent with the Manager's policies and procedures as
presented to the Board from time to time.
10. For the purposes of this Agreement, the Fund's "net assets" shall
be determined as provided in the Fund's then-current Prospectus and Statement
of Additional Information and the terms "assignment," "interested person,"
and "majority of the outstanding voting securities" shall have the meanings
given to them by Section 2(a) of the 1940 Act, subject to such exemptions as
may be granted by the SEC by any rule, regulation or order.
11. This Agreement will become effective with respect to the Fund on
the date set forth opposite the Fund's name on Schedule A annexed hereto,
provided that it shall have been approved by the Corporation's Board and by
the shareholders of the Fund in accordance with the requirements of the 1940
Act and, unless sooner terminated as provided herein, will continue in effect
for two years from the above written date. Thereafter, if not terminated, this
Agreement shall continue in effect with respect to the Fund, so long as such
continuance is specifically approved at least annually (i) by the Board or
(ii) by a vote of a majority of the outstanding voting securities of the Fund,
provided that in either event the continuance is also approved by a majority of
the Board members who are not interested persons of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval.
12. This Agreement is terminable with respect to the Fund without
penalty by the Board or by vote of a majority of the outstanding voting
securities of the Fund, in each case on not more than 60 days' nor less than
30 days' written notice to the Manager, or by the Manager upon not less than
90 days' written notice to the Fund, and will be terminated upon the mutual
written consent of the Manager and the Corporation. This Agreement shall
terminate automatically in the event of its assignment by the Manager and
shall not be assignable by the Corporation without the consent of the Manager.
13. The Manager agrees that for services rendered to the Fund, or for
any claim by it in connection with services rendered to the Fund, it shall look
only to assets of the Fund for satisfaction and that it shall have no claim
against the assets of any other portfolios of the Corporation.
14. 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, and no material amendment of the Agreement shall be effective until
approved, if so required by the 1940 Act, by vote of the holders of a majority
of the Fund's outstanding voting securities.
15. This Agreement embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings relating to the subject matter hereof. Should any part of this
Agreement 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 on and shall inure to the benefit of the
parties hereto and their respective
successors.
16. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers thereunto duly authorized.
XXXXX XXXXXX INSTITUTIONAL CASH MANAGEMENT
FUND INC.
By:_______________________________
Name: R. Xxx Xxxxxx
Title: Chairman
XXXXX XXXXXX FUND MANAGEMENT LLC
By:_______________________________
Name: Xxxxxx Xxxxxxx
Title: Director
Schedule A
Cash Portfolio
Fee:
The following percentage of the Fund's average daily net assets:
First $1 billion 0.25; Next $1 billion 0.225; Next $3 billion 0.20; Next $5
billion 0.175; Over $10 billion 0.15
