INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT (the “Agreement”) made as of this _____day of ___ 2011 by and between Xxxxx Capital Management Mutual Funds (the “Trust”), a Delaware statutory trust registered as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”), and Xxxxx Capital Management, LLC (the “Advisor”), a Maryland limited liability company with its principal place of business in Baltimore, Maryland.
WITNESSETH
WHEREAS, the Board of Trustees (the “Board”) of the Trust has selected the Advisor to act as investment adviser to the series portfolios of the Trust set forth on Schedule A to this Agreement (each, a “Fund”), as such schedule may be amended from time to time upon mutual agreement of the parties, and to provide certain related services, as more fully set forth below, and to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits set forth herein, the Trust and the Advisor do hereby agree as follows:
| 1. | THE ADVISOR’S SERVICES. | |||
| (a) | Discretionary
Investment Management Services. The Advisor shall act as investment adviser
with respect to each Fund. In such capacity, the Advisor shall, subject to the supervision
of the Board, regularly provide each Fund with investment research, advice and supervision
and shall furnish continuously an investment program for each Fund, consistent with
the respective investment objectives and policies of each Fund. The Advisor shall
determine, from time to time, what securities shall be purchased for each Fund,
what securities shall be held or sold by each Fund and what portion of each Fund’s assets shall be held uninvested in cash, subject always to the provisions
of the Trust’s Agreement and Declaration of Trust (“Declaration of Trust”), as amended and supplemented (the “Declaration of Trust”), Bylaws
and its registration statement on Form N-1A (the “Registration Statement”)
under the 1940 Act, and under the Securities Act of 1933, as amended (the “1933
Act”), as filed with the Securities and Exchange Commission (the “Commission”), and with the investment objectives, policies and restrictions of each Fund,
as each of the same shall be from time to time in effect. To carry out such obligations,
and to the extent not prohibited by any of the foregoing, the Advisor shall exercise
full discretion and act for each Fund in the same manner and with the same force
and effect as each Fund itself might or could do with respect to purchases, sales
or other transactions, as well as with respect to all other such things necessary
or incidental to the furtherance or conduct of such purchases, sales or other transactions.
No reference in this Agreement to the Advisor having full discretionary authority
over each Fund’s investments shall in any way limit the right of the Board,
in its sole discretion, to establish or revise policies in connection with the management
of a Fund’s assets or to otherwise exercise its right to control the overall
management of a Fund. |
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| (b) | Compliance. The Advisor agrees to comply with the requirements of the 1940 Act, the Investment
Advisers Act of 1940, as amended (the “Advisers Act”), the 1933 Act, the
Securities Exchange Act of 1934, as amended (the “1934 Act”), and the
respective rules and regulations thereunder, as applicable, as well as with all
other applicable federal and state laws, rules and regulations that relate to the
services and relationships described hereunder and to the conduct of its business
as a registered investment adviser. The Advisor also agrees to comply with the objectives,
policies and restrictions set forth in |
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the Registration
Statement, as amended or supplemented, of each Fund, and with any policies, guidelines,
instructions and procedures approved by the Board and provided to the Advisor. In
selecting each Fund’s portfolio securities and performing the Advisor’s
obligations hereunder, the Advisor shall cause the Fund to comply with the diversification
and source of income requirements of Subchapter M of the Internal Revenue Code of
1986, as amended (the “Code”), for qualification as a regulated investment
company. The Advisor shall maintain compliance procedures that it reasonably believes
are adequate to ensure its compliance with the foregoing. No supervisory activity
undertaken by the Board shall limit the Advisor’s full responsibility for any
of the foregoing. |
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| (c) | Recordkeeping
. The Advisor agrees to preserve any Trust records that it creates or possesses
that are required to be maintained under the 1940 Act and the rules thereunder (“Fund Books and Records”) for the periods prescribed by Rule 31a-2 under
the 1940 Act. In compliance with the requirements of Rule 31a-3 under the 1940 Act,
the Advisor agrees that all such records are the property of the Trust and will
surrender promptly to the Trust any of such records upon the Trust’s request. |
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| (d) | Holdings
Information and Pricing. The Advisor shall provide regular reports regarding
Fund holdings, and shall, on its own initiative, furnish the Trust and its Board
from time to time with whatever information the Advisor believes is appropriate
for this purpose, and at the request of the Board, such information and reports
requested by the Board. The Advisor agrees to notify the Trust as soon as practicable
if the Advisor reasonably believes that the value of any security held by a Fund
may not reflect fair value. The Advisor agrees to provide any pricing information
of which the Advisor is aware to the Trust, its Board and/or any Fund pricing agent
to assist in the determination of the fair value of any Fund holdings for which
market quotations are not readily available or as otherwise required in accordance
with the 1940 Act or the Trust’s valuation procedures for the purpose of calculating
the Fund net asset value in accordance with procedures and methods established by
the Board. |
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| (e) | Cooperation
with Agents of the Trust. The Advisor agrees to cooperate with and provide reasonable
assistance to the Trust, any Trust custodian or foreign sub-custodians, any Trust
pricing agents and all other agents and representatives of the Trust with respect
to such information regarding each Fund as such entities may reasonably request
from time to time in the performance of their obligations, provide prompt responses
to reasonable requests made by such persons and establish appropriate interfaces
with each so as to promote the efficient exchange of information and compliance
with applicable laws and regulations. |
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| (f) | Delegation
of Authority. Any of the duties, responsibilities and obligations of the Advisor
specified in this Section 1 and throughout the remainder of this Agreement with
respect to one or more Funds may be delegated by the Advisor, at the Advisor’s
expense, to an appropriate party (a “Sub-Advisor”), subject to such approval
by the Board and shareholders of the applicable Funds to the extent required by
the 1940 Act. The Advisor shall oversee the performance of delegated duties by any
Sub-Advisor and shall furnish the Board with periodic reports concerning the performance
of delegated responsibilities by such Sub-Advisor. The retention of a Sub-Advisor
by the Advisor pursuant to this Paragraph 1(f) shall in no way reduce the responsibilities
and obligations of the Advisor under this Agreement and the Advisor shall be responsible
to the Trust for all acts or omissions of any Sub-Adviser party in connection with
the performance of the Advisor’s |
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duties under
this Agreement. Insofar as the provisions of this Agreement impose any restrictions,
conditions, limitations or requirements on the Advisor, the Advisor shall take measures
through its contract with, or its oversight of, the Sub-Advisor that attempt to
impose similar (insofar as the circumstances may require) restrictions, conditions,
limitations or requirements on the Sub-Advisor. |
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| 2. |
CODE OF ETHICS. The Advisor has adopted a written code of ethics (“Advisor’s Code of Ethics”) that it reasonably believes complies with the requirements
of Rule 17j-1 under the 1940 Act, which it has provided to the Trust. The Advisor
shall ensure that its Access Persons (as defined in the Advisor’s Code of Ethics)
comply in all material respects with the Advisor’s Code of Ethics, as in effect
from time to time. Upon request, the Advisor shall provide the Trust with a (i)
copy of the Advisor’s Code of Ethics, as in effect from time to time, and any
proposed amendments thereto that the Chief Compliance Officer (“CCO”)
of the Trust determines should be presented to the Board, and (ii) certification
that it has adopted procedures reasonably necessary to prevent Access Persons from
engaging in any conduct prohibited by the Advisor’s Code of Ethics. Annually,
the Advisor shall furnish a written report to the Board, which complies with the
requirements of Rule 17j-1, concerning the Advisor’s Code of Ethics. The Advisor
shall respond to requests for information from the Trust as to violations of the
Advisor’s Code of Ethics by Access Persons and the sanctions imposed by the
Advisor. The Advisor shall notify the Trust as soon as practicable after it becomes
aware of any material violation of the Advisor’s Code of Ethics, whether or
not such violation relates to a security held by any Fund. |
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| 3. |
INFORMATION AND REPORTING. The Advisor shall provide the Trust and its respective
officers with such periodic reports concerning the obligations the Advisor has assumed
under this Agreement as the Trust may from time to time reasonably request. |
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| (a) | Notification
of Breach / Compliance Reports. The Advisor shall notify the Trust’s CCO
immediately upon detection of (i) any material failure to manage any Fund in accordance
with its investment objectives and policies or any applicable law, or (ii) any material
breach of any of each Fund’s or the Advisor’s policies, guidelines or
procedures with respect to the Fund. In addition, the Advisor shall respond to quarterly
requests for information concerning the Fund’s compliance with its investment
objectives and policies, applicable law, including, but not limited to the 1940
Act and Subchapter M of the Code, and the Fund’s policies, guidelines or procedures
as applicable to the Advisor’s obligations under this Agreement. The Advisor
agrees to correct any such failure promptly and to take any action that the Board
may reasonably request in connection with any such breach. Upon request, the Advisor
shall also provide the officers of the Trust with supporting certifications in connection
with such certifications of Fund financial statements and disclosure controls pursuant
to the Xxxxxxxx-Xxxxx Act. The Advisor will promptly notify the Trust in the event
(x) the Advisor is served or otherwise receives notice of any action, suit, proceeding,
inquiry or investigation, at law or in equity, before or by any court, public board,
or body, involving the affairs of the Trust (excluding class action suits in which
a Fund is a member of the plaintiff class by reason of the Fund’s ownership
of shares in the defendant) or the compliance by the Advisor with the federal or
state securities laws, or (y) of an actual change in control of the Advisor resulting
in an “assignment” (as defined in Section 14) that has occurred or is
otherwise proposed to occur. |
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| (b) | Board and
Filings Information. The Advisor will also provide the Trust with any information
reasonably requested regarding its management of each Fund required for any meeting
of the Board, or for any shareholder report on Form N-CSR, Form N-Q, |
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Form N-PX,
Form N-SAR, Registration Statement or any amendment thereto, proxy statement, prospectus
supplement, or other form or document to be filed by the Trust with the Commission.
The Advisor will make its officers and employees available to meet with the Board
from time to time on a reasonable basis on due notice to review its investment management
services to each Fund in light of current and prospective economic and market conditions
and shall furnish to the Board such information as may reasonably be necessary in
order for the Board to evaluate this Agreement or any proposed amendments thereto. |
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| (c) | Transaction
Information. The Advisor shall furnish to the Trust such information concerning
portfolio transactions as may be necessary to enable the Trust or its designated
agent to perform such compliance testing on each Fund and the Advisor’s services
as the Trust may, in its sole discretion, determine to be appropriate. The provision
of such information by the Advisor to the Trust or its designated agent in no way
relieves the Advisor of its own responsibilities under this Agreement. |
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| 4. | BROKERAGE. | |||
| (a) | Principal
Transactions. In connection with purchases or sales of securities for the account
of a Fund, neither the Advisor nor any of its directors, officers or employees will
act as a principal or agent or receive any commission except as permitted by the
1940 Act. |
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| (b) | Placement of Orders.
The Advisor shall place all orders for the purchase and sale of portfolio
securities for each Fund’s account with brokers or dealers selected by the
Advisor. The Advisor will not execute transactions with a broker dealer which is
an “affiliated person” of the Trust except in accordance with procedures adopted
by the Board. The Advisor shall use its best efforts to seek to execute portfolio
transactions at prices which are advantageous to each Fund and at commission rates
which are reasonable in relation to the benefits received. In selecting brokers
or dealers qualified to execute a particular transaction, brokers or dealers may
be selected who also provide brokerage and research services (as those terms are
defined in Section 28(e) of the 0000 Xxx) to each Fund and/or the other accounts
over which the Advisor or its affiliates exercise investment discretion. The Advisor
is authorized to pay a broker or dealer who provides such brokerage and research
services a commission for executing a portfolio transaction for each Fund which
is in excess of the amount of commission another broker or dealer would have charged
for effecting that transaction if the Advisor 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 Advisor and its affiliates have with respect to accounts over which they exercise
investment discretion. The Board shall periodically review the commissions paid
by each Fund to determine if the commissions paid over representative periods of
time were reasonable in relation to the benefits received by each Fund. |
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| 5. | CUSTODY. | |||
| (a) | Physical
Possession. Nothing in this Agreement shall permit the Advisor to take or receive
physical possession of cash, securities or other investments of a Fund. |
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| (b) | Allocation
of Charges and Expenses. The Advisor will bear its own costs of providing services
hereunder. Other than as herein specifically indicated or otherwise agreed to in
a |
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separate signed
writing, the Advisor shall not be responsible for a Fund’s expenses, including
brokerage and other expenses incurred in placing orders for the purchase and sale
of securities and other investment instruments. |
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| 6. | REPRESENTATIONS, WARRANTIES AND COVENANTS. | |||
| (a) | Properly
Registered. The Advisor is registered with the Commission as an investment adviser
under the Advisers Act, and will remain so registered for the duration of this Agreement.
The Advisor is not prohibited by the Advisers Act or the 1940 Act from performing
the services contemplated by this Agreement, and to the best knowledge of the Advisor,
there is no proceeding or investigation that is reasonably likely to result in the
Advisor being prohibited from performing the services contemplated by this Agreement.
The Advisor agrees to promptly notify the Trust of the occurrence of any event that
would disqualify the Advisor from serving as an investment adviser to an investment
company. The Advisor is in compliance in all material respects with all applicable
federal and state law in connection with its investment management operations. |
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| (b) | ADV Disclosure
. The Advisor has provided the Board with a copy of its Form ADV and will, promptly
after amending its Form ADV, furnish a copy of such amendments to the Trust. The
information contained in the Advisor’s Form ADV is accurate and complete in
all material respects and does not omit to state any material fact necessary in
order to make the statements made, in light of the circumstances under which they
were made, not misleading. |
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| (c) | Fund Disclosure
Documents. The Advisor has reviewed and will in the future review the Registration
Statement and any amendments or supplements thereto, the annual or semi-annual
reports to shareholders, other reports filed with the Commission and any marketing
material of a Fund (collectively the “Disclosure Documents”) and represents
and warrants that with respect to disclosure about the Advisor, the manner in which
the Advisor manages the Fund or information relating directly or indirectly to the
Advisor, such Disclosure Documents contain or will contain, as of the date thereof,
no untrue statement of any material fact and does not and will not omit any statement
of material fact which was required to be stated therein or necessary to make the
statements contained therein not misleading. |
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| (d) | Use of
the Name “Xxxxx Capital Management, LLC”. The Advisor has the right
to use the names “Xxxxx Capital Management, LLC,” “Xxxxx Capital
Management,” “Xxxxx Capital” and derivations thereof in connection
with its services to the Trust and, subject to the terms set forth in Section 7
of this Agreement, the Trust shall have the right to use the names “Xxxxx Capital
Management, LLC,” “Xxxxx Capital Management,” “Xxxxx Capital” and derivations thereof in connection with the management and operation of
each Fund. The Advisor is not aware of any threatened or existing actions, claims,
litigation or proceedings that would adversely affect or prejudice the rights of
the Advisor or the Trust to use the names “Xxxxx Capital Management, LLC,”
“Xxxxx Capital Management,” “Xxxxx Capital” and derivations
thereof. |
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| (e) | Insurance.
The Advisor maintains errors and omissions insurance coverage in an appropriate
amount and shall provide prior written notice to the Trust (i) of any material changes
in its insurance policies or insurance coverage, or (ii) if any material claims
will be made on its insurance policies. Furthermore, the Advisor shall, upon reasonable |
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request, provide
the Trust with any information it may reasonably require concerning the amount of
or scope of such insurance. |
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| (f) | No Detrimental
Agreement. The Advisor represents and warrants that it has no arrangement or
understanding with any party, other than the Trust, that would influence the decision
of the Advisor with respect to its selection of securities for a Fund and its management
of the assets of the Fund, and that all selections shall be done in accordance with
what is in the best interest of the Fund. |
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| (g) | Conflicts. The Advisor shall act honestly, in good faith and in the best interests of
its clients and the Fund. The Advisor maintains a Code of Ethics which defines the
standards by which the Advisor conducts its operations consistent with its fiduciary
duties and other obligations under applicable law. |
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| (h) | Representations. The representations and warranties in this Section 6 shall be deemed to be
made on the date this Agreement is executed and at the time of delivery of the quarterly
compliance report required by Section 3(a), whether or not specifically referenced
in such report. |
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| 7. |
LICENSE TO USE THE NAME. The Advisor grants to the Trust a license to use
the name “Xxxxx Capital Management,” “Xxxxx Capital” and any
reasonable derivations thereof (collectively, the “Name”) as part of the
name of any Fund. The foregoing authorization by the Advisor to the Trust to use
the Name as part of the name of any Fund is not exclusive of the right of the Advisor
itself to use, or to authorize others to use, the Name; the Trust acknowledges and
agrees that, as between the Trust and the Advisor, the Advisor has the right to
use, or authorize others to use, the Name. The Trust shall: (i) only use the Name
in a manner consistent with uses approved by the Advisor; (ii) use its best efforts
to maintain the quality of the services offered using the Name; and (iii) adhere
to such other specific quality control standards as the Advisor may from time to
time promulgate. At the request of the Advisor, the Trust will (i) submit to the
Advisor representative samples of any promotional materials using the Name, and
(ii) change the name of any Fund within three months of its receipt of the Advisor’s request, or such other shorter time period as may be required under the terms
of a settlement agreement or court order, so as to eliminate all reference to the
Name and will not thereafter transact any business using the Name in the name of
any Fund; provided, however, that the Trust may continue to use beyond such date
any supplies of prospectuses, marketing materials and similar documents that the
Trust had on the date of such name change in quantities not exceeding those historically
produced and used in connection with such Fund. |
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| 8. |
ADVISOR’S COMPENSATION. Each Fund shall pay to the Advisor, as compensation
for the Advisor’s services hereunder, a fee, determined as described in Schedule
A that is attached hereto and made a part hereof. Such fee shall be computed daily
and paid not less than monthly in arrears by each Fund. The method for determining
net assets of a Fund for purposes hereof shall be the same as the method for determining
net assets for purposes of establishing the offering and redemption prices of Fund
shares as described in the Fund’s Registration Statement. In the event of termination
of this Agreement, the fee provided in this Section shall be computed on the basis
of the period ending on the last business day on which this Agreement is in effect
subject to a pro rata adjustment based on the number of days elapsed in the current
month as a percentage of the total number of days in such month. |
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| 9. |
INDEPENDENT CONTRACTOR. In the performance of its duties hereunder, the Advisor
is and shall be an independent contractor and, unless otherwise expressly provided
herein or otherwise |
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authorized in writing, shall have no authority to act for or represent the Trust
or any Fund in any way or otherwise be deemed to be an agent of the Trust or any
Fund. If any occasion should arise in which the Advisor gives any advice to its
clients concerning the shares of a Fund, the Advisor will act solely as investment
counsel for such clients and not in any way on behalf of the Fund. |
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| 10. |
ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically terminate, without
the payment of any penalty, in the event of its “assignment” (as defined
in Section 14). This Agreement may not be added to or changed orally and may not
be modified or rescinded except by a writing signed by the parties hereto and in
accordance with the requirements of the 1940 Act, when applicable. |
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| 11. | DURATION AND TERMINATION. | |||||
| (a) |
This Agreement shall become effective as of the date executed and shall remain in
full force and effect continually thereafter, subject to renewal as provided in
Section 11(a)(ii) hereof and unless terminated automatically as set forth in Section
10 hereof or until terminated as follows: |
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| (i) | Either party
hereto may, at any time on sixty (60) days’ prior written notice to the other,
terminate this Agreement, without payment of any penalty. With respect to a Fund,
termination may be authorized by action of the Board or by an “affirmative
vote of a majority of the outstanding voting securities of the Fund” (as defined
in Section 14); or |
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| (ii) | This Agreement
shall automatically terminate two years from the date of its execution unless the
terms of such contract and any renewal thereof is specifically approved at least
annually thereafter by (i) a majority vote of the Trustees, including a majority
vote of such Trustees who are not parties to the Agreement or “interested persons” (as defined in Section 14) of the Trust or the Advisor, at an in-person meeting
called for the purpose of voting on such approval, or (ii) the vote of a majority
of the outstanding voting securities of each Fund; provided, however, that if the
continuance of this Agreement is submitted to the shareholders of each Fund for
their approval and such shareholders fail to approve such continuance of this Agreement
as provided herein, the Advisor may continue to serve hereunder as to each Fund
in a manner consistent with the 1940 Act and the rules and regulations thereunder. |
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| (b) |
In the event of termination of this Agreement for any reason, the Advisor shall,
immediately upon notice of termination or on such later date as may be specified
in such notice, cease all activity on behalf of the Fund and with respect to any
of its assets, except as otherwise required by any fiduciary duties of the Advisor
under applicable law. In addition, the Advisor shall deliver the Fund Books and
Records to the Trust by such means and in accordance with such schedule as the Trust
shall direct and shall otherwise cooperate, as reasonably directed by the Trust,
in the transition of portfolio asset management to any successor of the Advisor. |
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| 12. |
NOTICE. Any notice or other communication required by or permitted to be given
in connection with this Agreement shall be in writing, and shall be delivered in
person or sent by first-class mail, postage prepaid, to the respective parties at
their last known address, or by e-mail or fax to a designated contact of the other
party. Oral instructions may be given if authorized by the Board and preceded by
a certificate from the Trust’s Secretary so attesting. Notices to the Trust
shall be |
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| B-7 | ||||||
directed to
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000; and notices to the Advisor
shall be directed to 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. |
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| 13. | CONFIDENTIALITY. The Advisor agrees on behalf of itself and its employees to treat confidentially
all records and other information relative to the Trust and its shareholders received
by the Advisor in connection with this Agreement, including any non-public personal
information as defined in Regulation S-P, and that it shall not use or disclose
any such information except for the purpose of carrying out the terms of this Agreement;
provided, however, that the Advisor may disclose such information as required by
law or in connection with any requested disclosure to a regulatory authority with
appropriate jurisdiction after prior notification to the Trust. |
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| 14. | CERTAIN DEFINITIONS.
For the purpose of this Agreement, the terms “affirmative vote of a majority
of the outstanding voting securities of the Fund,” “assignment” and
“interested person” shall have their respective meanings as defined in
the 1940 Act and rules and regulations thereunder, subject, however, to such exemptions
as may be granted by the Commission under the 1940 Act or any interpretations of
the Commission staff. |
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| 15. | LIABILITY OF THE ADVISOR. Neither the Advisor nor its officers, directors, employees, agents,
affiliated persons or controlling persons or assigns shall 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 of a Fund; provided
that nothing in this Agreement shall be deemed to protect the Advisor against any
liability to a Fund or its shareholders to which the Advisor would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or obligations hereunder or by reason of its reckless disregard of
its duties or obligations hereunder. |
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| 16. | RELATIONS WITH THE TRUST. It is understood that the Trustees, officers and shareholders of
the Trust are or may be or become interested persons of the Advisor as directors,
officers or otherwise and that directors, officers and stockholders of the Advisor
are or may be or become interested persons of the Fund, and that the Advisor may
be or become interested persons of the Fund as a shareholder or otherwise. |
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| 17. | ENFORCEABILITY. If any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of the parties shall
be construed and enforced as if the Agreement did not contain the particular part,
term or provision held to be illegal or invalid. This Agreement shall be severable
as to each Fund. |
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| 18. | LIMITATION
OF LIABILITY. The Advisor is expressly put on notice of the limitation of liability
as set forth in the Declaration of Trust or other Trust organizational documents
and agrees that the obligations assumed with respect to each Fund pursuant to this
Agreement shall be limited in all cases to each Fund and each Fund’s respective
assets, and the Advisor shall not seek satisfaction of any such obligation from
shareholders or any shareholder of each Fund. In addition, the Advisor shall not
seek satisfaction of any such obligations from the Trustees of the Trust or any
individual Trustee. The Advisor understands that the rights and obligations of any
Fund under the Declaration of Trust or other organizational document are separate
and distinct from those of any of and all other Funds. |
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| 19. | NON-EXCLUSIVE
SERVICES. The services of the Advisor to the Trust are not deemed exclusive, and
the Advisor shall be free to render similar services to others, to the extent that
such service does not affect the Advisor’s ability to perform its duties and
obligations hereunder. |
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| 20. | GOVERNING
LAW. This Agreement shall be governed by and construed to be in accordance with
the laws of the State of Delaware, without preference to choice of law principles
thereof, and in accordance with the applicable provisions of the 1940 Act. To the
extent that the applicable laws of the State of Delaware, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter shall
control. 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 any interpretations thereof, if any, by the United States courts or in the absence
of any controlling decision of any such court, by the Commission or its staff. In
addition, where the effect of a requirement of the 1940 Act, reflected in any provision
of this Agreement, is revised by rule, regulation, order or interpretation of the
Commission or its staff, such provision shall be deemed to incorporate the effect
of such revised rule, regulation, order or interpretation. |
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| 21. | PARAGRAPH
HEADINGS; SYNTAX. All Section headings contained in this Agreement are for convenience
of reference only, do not form a part of this Agreement and will not affect in any
way the meaning or interpretation of this Agreement. Words used herein, regardless
of the number and gender specifically used, will be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine,
or neuter, as the contract requires. |
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| 22. | COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which, when
so executed, shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument. |
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| Signature Page to Follow | ||||
B-9
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be signed on their behalf by their duly authorized officers as of the date first above written.
| XXXXX CAPITAL MANAGEMENT MUTUAL FUNDS | ||
| Signature | ||
| By: ____________________________________________________________ | ||
| Title: ___________________________________________________________ | ||
| XXXXX CAPITAL MANAGEMENT, LLC | ||
| Signature | ||
| By: ____________________________________________________________ | ||
| Title: ___________________________________________________________ | ||
B-10
Schedule A
Investment
Advisory Agreement
between
Xxxxx Capital Management Mutual Funds
(the “Trust”)
and
Xxxxx Capital Management, LLC (the “Advisor”)
Dated as of _______, 2011
The Trust will pay to the Advisor as compensation for the Advisor’s services rendered, a fee, computed daily at an annual rate based on the average daily net assets of the respective Fund in accordance with the following fee schedule:
| Fund | Fees as % of Net Assets |
| Small Company Fund | 1.00% on all assets |
| International Equity Fund | 1.00% on first $100
million; 0.75% on assets over $100 million |
| Mid-Cap Fund | 0.75% on all assets |
B-11
