FORM OF MANAGEMENT AGREEMENT
This Agreement is made as of December 16, 2000, between Xxxxxxxxx
Xxxxxx Equity Funds, a Delaware business trust ("Trust"), and Xxxxxxxxx Xxxxxx
Management Inc., a New York corporation ("Manager").
W I T N E S S E T H:
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WHEREAS, Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end, diversified management investment
company and has established several separate series of shares ("Series") with
each Series having one or more classes and with each Series having its own
assets and investment policies; and
WHEREAS, Trust desires to retain the Manager as investment
adviser to furnish investment advisory and portfolio management services to each
Series listed in Schedule A attached hereto, to such other Series of Trust
hereinafter established as agreed to from time to time by the parties, evidenced
by an addendum to Schedule A (hereinafter "Series" shall refer to each Series
which is subject to this Agreement and all agreements and actions described
herein to be made or taken by Trust on behalf of the Series), and the Manager is
willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. SERVICES OF THE MANAGER.
1.1 INVESTMENT MANAGEMENT SERVICES. The Manager shall act as
the investment adviser to the Series and, as such, shall (1) obtain and evaluate
such information relating to the economy, industries, businesses, securities
markets and securities as it may deem necessary or useful in discharging its
responsibilities hereunder, (ii) formulate a continuing program for the
investment of the assets of the Series in a manner consistent with its
investment objectives, policies and restrictions, and (iii) determine from time
to time securities to be purchased, sold, retained or lent by the Series, and
implement those decisions, including the selection of entities with or through
which such purchases, sales or loans are to be effected; provided, that the
Manager will place orders pursuant to its investment determinations either
directly with the issuer or with a broker or dealer, and if with a broker or
dealer, (a) will attempt to obtain the best net price and most favorable
execution of its orders, and (b) may nevertheless in its discretion purchase and
sell portfolio securities from and to brokers and dealers who provide the
Manager with research, analysis, advice and similar services and pay such
brokers and dealers in return a higher commission or spread than may be charged
by other brokers or dealers.
The Series 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 Series which is
permitted by Section 11(a) of the Securities Exchange Act of and Rule 11a2-2(T)
thereunder, and the Series hereby consents to the retention of compensation for
such transactions in accordance with Rule 11a-2(T)(a)(iv).
The Manager shall carry out its duties with respect to the
Series' investments in accordance with applicable law and the investment
objectives, policies and restrictions of the Series adopted by the trustees of
Trust ("Trustees"), and subject to such further limitations as the Series may
from time to time impose by written notice to the Manager.
1.2 ADMINISTRATIVE SERVICES. The Manager shall supervise the
Series' business and affairs and shall provide such services required for
effective administration of the Series as are not provided by employees or other
agents engaged by the Series; provided, that the Manager shall not have any
obligation to provide under this Agreement any direct or indirect services to
the holders of interests in the Series ("Interestholders"), any services related
to the sale of interests in the Series, or any other services which are the
subject of a separate agreement or arrangement between the Series and the
Manager. Subject to the foregoing, in providing administrative services
hereunder, the Manager shall:
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1.2.1 OFFICE SPACE, EQUIPMENT AND FACILITIES. Furnish
without cost to the Series, or pay the cost of, such office space, office
equipment and office facilities as are adequate for the Series' needs.
1.2.2 PERSONNEL. Provide, without remuneration from or
other cost to Trust or the Series, the services of individuals competent to
perform all of the Series' executive, administrative and clerical functions
which are not performed by employees or other agents engaged by the Series or by
the Manager acting in some other capacity pursuant to a separate agreement or
arrangement with the Series.
1.2.3 AGENTS. Assist the Series in selecting and
coordinating the activities of the other agents engaged by the Series, including
the Series' custodian, independent auditors and legal counsel.
1.2.4 TRUSTEES AND OFFICERS. Authorize and permit the
Manager's directors, officers and employees who may be elected or appointed as
trustees or officers of Trust to serve in such capacities, without remuneration
from or other cost to Trust or the Series.
1.2.5 BOOKS AND RECORDS. Assure that all financial,
accounting and other records required to be maintained and preserved by Trust
and/or the Series are maintained and preserved by it or on its behalf in
accordance with applicable laws and regulations.
1.2.6 REPORTS AND FILINGS. Assist in the preparation of
(but not pay for) all periodic reports by Trust or the Series to Interestholders
of the Series and all reports and filings required to maintain the registration
and qualification of the Series, or to meet other regulatory or tax requirements
applicable to the Series, under federal and state securities and tax laws.
1.3 The Manager can use any of the officers and employees of
Xxxxxxxxx Xxxxxx, LLC to provide any of the non-investment advisory services
described herein, and can subcontract to third parties, provided the Manager
remains as fully responsible to the Trust or Series, as applicable, under this
contract as if the Manager had provided services directly.
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2. EXPENSES OF THE SERIES.
2.1 EXPENSES TO BE PAID BY THE MANAGER. The Manager shall pay
all salaries, expenses and fees of the officers, trustees and employees of the
Trust who are officers, directors or employees of the Manager.
In the event that the Manager pays or assumes any expenses
of Trust or a Series not required to be paid or assumed by the Manager under
this Agreement, the Manager shall not be obligated hereby to pay or assume the
same or any similar expense in the future; PROVIDED, that nothing herein
contained shall be deemed to relieve the Manager of any obligation to Trust or
to a Series under any separate agreement or arrangement between the parties.
2.2 EXPENSES TO BE PAID BY THE SERIES. Each Series shall bear
the expenses of its operation, except those specifically allocated to the
Manager under this Agreement or under any separate agreement between a Series
and the Manager. Expenses to be borne by a Series shall include both expenses
directly attributable to the operation of the Series and the placement of
interests therein, as well as the portion of any expenses of Trust that is
properly allocable to the Series in a manner approved by the trustees of Trust.
Subject to any separate agreement or arrangement between Trust or a Series and
the Manager, the expenses hereby allocated to each Series, and not to the
Manager, include, but are not limited to:
2.2.1 CUSTODY. All charges of depositories, custodians, and
other agents for the transfer, receipt, safekeeping, and servicing of its cash,
securities, and other property.
2.2.2 INTERESTHOLDER SERVICING. All expenses of maintaining and
servicing Interestholder accounts, including but not limited to the charges of
any Interestholder servicing agent, dividend disbursing agent or other agent
engaged by a Series to service Interestholder accounts.
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2.2.3 INTERESTHOLDER REPORTS. All expenses of preparing, setting
in type, printing and distributing reports and other communications to
Interestholders of a Series.
2.2.4 PRICING AND PORTFOLIO VALUATION. All expenses of computing
a Series' net asset value per share, including any equipment or services
obtained for the purpose of pricing shares or valuing the Series' investment
portfolio.
2.2.5 COMMUNICATIONS. All charges for equipment or services used
for communications between the Manager or the Series and any custodian,
Interestholder servicing agent, portfolio accounting services agent, or other
agent engaged by a Series.
2.2.6 LEGAL AND ACCOUNTING FEES. All charges for services and
expenses of a Series' legal counsel and independent auditors.
2.2.7 TRUSTEES' FEES AND EXPENSES. With respect to each Series,
all compensation of Trustees other than those affiliated with the Manager, all
expenses incurred in connection with such unaffiliated Trustees' services as
Trustees, and all other expenses of meetings of the Trustees or committees
thereof.
2.2.8 INTERESTHOLDER MEETINGS. All expenses incidental to
holding meetings of Interestholders, including the printing of notices and proxy
materials, and proxy solicitation therefor.
2.2.9 BONDING AND INSURANCE. All expenses of bond, liability,
and other insurance coverage required by law or regulation or deemed advisable
by the Trustees, including, without limitation, such bond, liability and other
insurance expense that may from time to time be allocated to the Series in a
manner approved by the Trustees.
2.2.10 BROKERAGE COMMISSIONS. All brokers' commissions and other
charges incident to the purchase, sale or lending of a Series' portfolio
securities.
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2.2.11 TAXES. All taxes or governmental fees payable by or with
respect to a Series to federal, state or other governmental agencies, domestic
or foreign, including stamp or other transfer taxes.
2.2.12 TRADE ASSOCIATION FEES. All fees, dues and other expenses
incurred in connection with a Series' membership in any trade association or
other investment organization.
2.2.13 NONRECURRING AND EXTRAORDINARY EXPENSES. Such nonrecurring
and extraordinary expenses as may arise, including the costs of actions, suits,
or proceedings to which the Series is a party and the expenses a Series may
incur as a result of its legal obligation to provide indemnification to Trust's
officers, Trustees and agents.
2.2.14 ORGANIZATIONAL EXPENSES. Any and all organizational
expenses of a Series paid by the Manager shall be reimbursed by such Series at
such time or times agreed by such Series and the Manager.
3. ADVISORY FEE.
3.1 FEE. As compensation for all services rendered, facilities
provided and expenses paid or assumed by the Manager under this Agreement, each
Series shall pay the Manager an annual fee as set out in Schedule B to this
Agreement.
3.2 COMPUTATION AND PAYMENT OF FEE. The advisory fee shall
accrue on each calendar day, and shall be payable monthly on the first business
day of the next succeeding calendar month. The daily fee accruals shall be
computed by multiplying the fraction of one divided by the number of days in the
calendar year by the applicable annual advisory fee rate (as set forth in
Schedule B hereto), and multiplying this product by the net assets of the
Series, determined in the manner established by the Trustees, as of the close of
business on the last preceding business day on which the Series' net asset value
was determined.
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3.3 STATE EXPENSE LIMITATION. If in any fiscal year the
operating expenses of any Interestholder in a Series plus such Interestholder's
pro rata portion of the Series' operating expenses in such fiscal year
("Aggregate Operating Expenses", which includes any fees or expense
reimbursements payable to the Manager pursuant to this Agreement and any
compensation payable to the Manager pursuant to (1) the Administration Agreement
between such Interestholder and the Manager or (ii) any other Agreement or
arrangement with Trust with respect to that Interestholder, but excludes
interest, taxes, brokerage commissions, litigation and indemnification expenses,
and other extraordinary expenses not incurred in the ordinary course of
business) exceed the lowest applicable percentage expense limitation imposed
under the securities law and regulations of any state in which such
Interestholder's shares are qualified for sale (the "State Expense Limitation"),
then the Manager shall pay such Interestholder the amount of such excess, less
the amount of any reduction of the administration fee referred to below;
provided, that the Manager shall have no obligation hereunder to pay such
Interestholder for any such expenses which exceed the pro rata portion of such
advisory fee attributable to such Interestholder's interest in that Series.
No payment shall be made to such Interestholder hereunder
unless and until the administration fee payable by such Interestholder under a
similar State Expense Limitation of its Administration Agreement with the
Manager has been reduced to zero. Any payment to an interestholder hereunder
shall be made monthly, by annualizing the Aggregate Operating Expenses for each
month as of the last day of such month. An adjustment shall be made on or before
the last day of the first month of the next succeeding fiscal year if Aggregate
Operating Expenses for such fiscal year do not exceed the State Expense
Limitation or if for such fiscal year there is no applicable State Expense
Limitation.
4. OWNERSHIP OF RECORDS.
All records required to be maintained and preserved by the Series
pursuant to the provisions or rules or regulations of the Securities and
Exchange Commission under Section 3 1 (a) of the 1940 Act and maintained and
preserved by the Manager on behalf of the Series are the property of the Series
and shall be surrendered by the Manager promptly on request by the Series;
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provided, that the Manager may at its own expense make and retain copies of any
such records.
5. REPORTS TO MANAGER.
The Series shall furnish or otherwise make available to the
Manager such copies of that Series' financial statements, proxy statements,
reports, and other information relating to its business and affairs as the
Manager may, at any time or from time to time, reasonably require in order to
discharge its obligations under this Agreement.
6. REPORTS TO THE SERIES.
The Manager shall prepare and furnish to the Series such reports,
statistical data and other information in such for-in and at such intervals as
the Series may reasonably request.
7. RETENTION OF SUB-ADVISER.
Subject to a Series obtaining the initial and periodic approvals
required under Section 15 of the 1940 Act, the Manager may retain a sub-adviser,
at the Manager's own cost and expense, for the purpose of making investment
recommendations and research information available to the Manager. Retention of
a sub-adviser shall in no way reduce the responsibilities or obligations of the
Manager under this Agreement and the Manager shall be responsible to Trust and
the Series for all acts or omissions of the sub-adviser in connection with the
performance of the Manager's duties hereunder.
8. SERVICES TO OTHER CLIENTS.
Nothing herein contained shall limit the freedom of the Manager
or any affiliated person of the Manager to render investment management and
administrative services to other investment companies, to act as investment
adviser or investment counselor to other persons, firms or corporations, or to
engage in other business activities.
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9. LIMITATION OF LIABILITY OF MANAGER AND ITS PERSONNEL.
Neither the Manager nor any director, officer or employee of the
Manager performing services for the Series at the direction or request of the
Manager in connection with the Manager's discharge of its obligations hereunder
shall be liable for any error of judgment or mistake of law or for any loss
suffered by a Series in connection with any matter to which this Agreement
relates; provided, that nothing herein contained shall be construed (i) to
protect the Manager against any liability to Trust or a Series or its
Interestholders to which the Manager would otherwise be subject by reason of the
Manager's misfeasance, bad faith, or gross negligence in the performance of the
Manager's duties, or by reason of the Manager's reckless disregard of its
obligations and duties under this Agreement, or (ii) to protect any director,
officer or employee of the Manager who is or was a Trustee or officer of Trust
against any liability to Trust or a Series or its Interestholders to which such
person would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
such person's office with Trust.
10. NO LIABILITY OF OTHER SERIES.
This Agreement is made by each Series pursuant to authority
granted by the Trustees, and the obligations created hereby are not binding on
any of the Trustees or Interestholders of the Series individually, but bind only
the property of that Series and no other.
11. EFFECT OF AGREEMENT.
Nothing herein contained shall be deemed to require the Series to
take any action contrary to the Declaration of Trust or By-Laws of Trust, any
actions of the Trustees binding upon the Series, or any applicable law,
regulation or order to which the Series is subject or by which it is bound, or
to relieve or deprive the Trustees of their responsibility for and control of
the conduct of the business and affairs of the Series or Trust.
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12. TERM OF AGREEMENT.
The term of this Agreement shall begin on the date first above
written with respect to each Series listed in Schedule A on the date hereof and,
unless sooner terminated as hereinafter provided, this Agreement shall remain in
effect through June 30, 2001. With respect to each Series added by execution of
an Addendum to Schedule A, the term of this Agreement shall begin on the date of
such execution and, unless sooner terminated as hereinafter provided, this
Agreement shall remain in effect to August 2 of the year following the year of
execution. Thereafter, in each case, this Agreement shall continue in effect
with respect to each Series from year to year, subject to the termination
provisions and all other terms and conditions hereof, provided, such continuance
with respect to a Series is approved at least annually by vote of the holders of
a majority of the outstanding voting securities of the Series or by the
Trustees, provided, that in either event such continuance is also approved
annually by the vote, cast in person at a meeting called for the purpose of
voting on such approval, of a majority of the Trustees who are not parties to
this Agreement or interested persons of either party hereto; and provided
further that the Manager shall not have notified a Series in writing at least
sixty (60) days prior to the first expiration date hereof or at least sixty (60)
days prior to any expiration date hereof of any year thereafter that it does not
desire such continuation. The Manager shall furnish to Trust and the Series,
promptly upon their request, such information as may reasonably be necessary to
evaluate the terms of this Agreement or any extension, renewal or amendment
thereof.
13. AMENDMENT OR ASSIGNMENT OF AGREEMENT.
Any amendment to this Agreement shall be in writing signed by the
parties hereto; provided, that no such amendment shall be effective unless
authorized on behalf of any Series (i) by resolution of the Trustees, including
the vote or written consent of a majority of the Trustees who are not parties to
this Agreement or interested persons of either party hereto, and (ii) by vote of
a majority of the outstanding voting securities of the Series. This Agreement
shall terminate automatically and immediately in the event of its assignment.
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14. TERMINATION OF AGREEMENT.
This Agreement may be terminated at any time by either party
hereto, without the payment of any penalty, upon sixty (60) days' prior written
notice to the other party; provided, that in the case of termination by any
Series, such action shall have been authorized (i) by resolution of the
Trustees, including the vote or written consent of a majority of Trustees who
are not parties to this Agreement or interested persons' of either party hereto,
or (ii) by vote of a majority of the outstanding voting securities of the
Series.
15. NAME OF THE SERIES.
Each Series hereby agrees that if the Manager shall at any time
for any reason cease to serve as investment adviser to a Series, the Series
shall, if and when requested by the Manager, eliminate from the Series' name the
name "Xxxxxxxxx Xxxxxx" and thereafter refrain from using the name "Xxxxxxxxx
Xxxxxx" or the initials "NB" in connection with its business or activities, and
the foregoing agreement of a Series shall survive any termination of this
Agreement and any extension or renewal thereof.
16. INTERPRETATION AND DEFINITION OF TERMS.
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 interpretation thereof, if any, by the United States courts or,
in the absence of any controlling decision of any such court, by rules,
regulations or orders of the Securities and Exchange Commission validly issued
pursuant to the 1940Act. Specifically, the terms "vote of a majority of the
outstanding voting securities," "interested person," "assignment" and
"affiliated person," as used in this Agreement shall have the meanings assigned
to them by Section 2(a) of the 1940 Act. In addition, when the effect of a
requirement of the 1940 Act reflected in any provision of this Agreement is
modified, interpreted or relaxed by a rule, regulation or order of the
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Securities and Exchange Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
17. CHOICE OF LAW
This Agreement is made and to be principally performed in the
State of New York and except insofar as the 1940 Act or other federal laws and
regulations may be controlling, this Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
York.
18. CAPTIONS.
The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
19. EXECUTION IN COUNTERPARTS.
This Agreement may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by their respective officers thereunto duly authorized and their
respective seals to be hereunto affixed, as of the day and year first above
written.
XXXXXXXXX XXXXXX EQUITY FUNDS
By:
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Title:
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XXXXXXXXX XXXXXX MANAGEMENT INC.
By:
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Title:
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