Exhibit d-9
INVESTMENT MANAGEMENT AGREEMENT
THE XXXXX FUND
XXXXX SMALLCAP AND MIDCAP PORTFOLIO
MAY ____, 0000
Xxxx Xxxxx Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The Xxxxx Fund (the "Fund"), an unincorporated business trust organized under
the laws of the Commonwealth of Massachusetts, hereby confirms its agreement
with Xxxx Xxxxx Management, Inc. ("Xxxxx") as follows:
1. INVESTMENT DESCRIPTION; APPOINTMENT
The Fund desires to employ the capital of the Xxxxx SmallCap and MidCap
Portfolio (the "Portfolio") by investing and reinvesting in investments of
the kind and in accordance with the limitations specified in its Agreement
and Declaration of Trust and in its Prospectus and Statement of Additional
Information, as from time to time in effect, and in such manner and to such
extent as may from time to time be approved by the Board of Trustees of the
Fund. Copies of the Fund's Prospectus, Statement of Additional Information
and Agreement and Declaration of Trust, as each may from time to time be
amended, have been or will be submitted to Xxxxx. The Fund desires to
employ and hereby appoints Xxxxx to act as the investment manager for the
Portfolio. Xxxxx accepts the appointment and agrees to furnish the services
for the compensation set forth below.
2. SERVICES AS INVESTMENT MANAGER
Subject to the supervision and direction of the Board of Trustees of the
Fund, Xxxxx will (a) act in strict conformity with the Fund's Agreement and
Declaration of Trust, the Investment Company Act of 1940 (the "Act") and
the Investment Advisers Act of 1940, as the same may from time to time be
amended; (b) manage the Portfolio in accordance with the Portfolio's
investment objective and policies as stated in the Fund's Prospectus and
Statement of Additional Information as from time to time in effect; (c)
make general investment decisions for the Portfolio involving decisions
concerning (i) the specific
types of securities to be held by the Portfolio and the proportion of the1
Portfolio's assets that should be allocated to such investments during
particular market cycles and (ii) the specific issuers whose securities
will be purchased or sold by the Portfolio; and (d) supply office
facilities (which may be in Xxxxx'x own offices); statistical and research
data; data processing services; clerical, accounting and bookkeeping
services; internal auditing services; internal executive and administrative
services; stationery and office supplies; preparation of reports to
shareholders of the Portfolio; preparation of tax returns, reports to and
filings with the Securities and Exchange Commission (the "SEC") and state
Blue Sky authorities; calculation of the net asset value of shares of the
Portfolio; maintenance of the Portfolio's financial accounts and records;
and general assistance in all aspects of the Fund's operations with respect
to the Portfolio. In providing those services, Xxxxx will supervise the
Portfolio's investments generally and conduct a continual program of
evaluation of the Portfolio's assets.
In connection with the performance of its duties under this Agreement, it
is understood that Xxxxx may from time to time employ or associate with
itself such person or persons as Xxxxx may believe to be particularly
fitted to assist it in the performance of this Agreement, it being
understood that the compensation of such person or persons shall be paid by
Xxxxx and that no obligation may be incurred on the Fund's behalf in any
such respect.
3. BROKERAGE
In executing transactions for the Portfolio and selecting brokers or
dealers, Xxxxx will use its best efforts to seek the best overall terms
available. In assessing the best overall terms available for any Portfolio
transactions, Xxxxx will consider all factors it deems relevant including,
but not limited to, breadth of the market in the security, the price of the
security, the financial condition and execution capability of the broker or
dealer and the reasonableness of any commission for the specific
transaction and on an continuing basis. In selecting brokers or dealers to
execute a particular transaction and in evaluating the best overall terms
available, Xxxxx may consider the brokerage and research services (as those
terms are defined in Section 28(e) of the Securities Exchange Act of 1934)
provided to the Portfolio and/or other accounts over which Xxxxx or an
affiliate exercises investment discretion.
4. INFORMATION PROVIDED TO THE FUND
Xxxxx will keep the Fund informed of developments materially affecting the
Portfolio, and will, on its own initiative, furnish the Fund from time to
time with whatever information Xxxxx believes is appropriate for this
purpose.
In compliance with the requirements of Rule 31a-3 under the Act, Xxxxx
hereby agrees that all records that it maintains for the Fund in respect of
the Portfolio are the property of the Fund and further agrees to surrender
promptly to the Fund any of such records upon the Fund's request.
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5. STANDARD OF CARE
Xxxxx shall exercise its best judgment in rendering the services listed in
paragraph 2 above. Xxxxx shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Portfolio in connection with
the matters to which this Agreement relates, provided that nothing herein
shall be deemed to protect or purport to protect Xxxxx against any
liability to the Portfolio or to its shareholders to which Xxxxx would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or by reason of
Xxxxx'x reckless disregard of its obligations and duties under this
Agreement.
6. COMPENSATION
In consideration of the services rendered pursuant to this Agreement, the
Portfolio will pay Xxxxx on the first business day of each month a fee for
the previous month at the annual rate of .85 of 1.00% of the Portfolio's
average daily net assets. The fee for the period from the date of the
Fund's registration statement is declared effective by the SEC to the end
of the month during which its registration statement is declared effective
shall be prorated according to the proportion that such period bears to the
full monthly period. Upon any termination of this Agreement before the end
of a month, the fee for such part of that month shall be prorated according
to the proportion that such period bears to the full monthly period and
shall be payable upon the date of termination of this Agreement. For the
purpose of determining fees payable to Xxxxx, the value of the Portfolio's
net assets shall be computed at the times and in the manner specified in
the Fund's Prospectus and Statement of Additional Information as from time
to time in effect.
7. EXPENSES
Xxxxx will bear all expenses in connection with the performance of its
services under this Agreement. The Portfolio will bear certain other
expenses to be incurred in its operation, including: taxes, interest,
brokerage fees and commissions, if any; fees of Trustees of the Fund who
are not officers, directors or employees of Xxxxx or any of its affiliates;
SEC fees and state Blue Sky qualification fees; charges of custodians and
transfer and dividend disbursing agents; charges of any independent pricing
service retained to assist in valuing the assets of the Portfolio; the
Fund's proportionate share of the insurance premiums; outside auditing and
legal expenses; costs of maintenance of the Fund's existence, costs
attributable to shareholder services, including, without limitation,
telephone and personnel expenses; costs of preparing and printing
prospectuses and statements of additional information for regulatory
purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of
the officers or Board of Trustees of the Fund; and any extraordinary
expenses. Fund-wide expenses not specifically identifiable to the Portfolio
or any other portfolio of the Fund will be allocated to all portfolios pro
rata on the basis of their relative net assets.
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8. REIMBURSEMENT TO THE PORTFOLIO
If in any fiscal year the aggregate expenses of the Portfolio (including
fees pursuant to this Agreement, but excluding interest, taxes, brokerage
expenses and distribution expenses and, if permitted by state securities
commissions, extraordinary expenses) exceed the expense limitation imposed
by any state having jurisdiction over the Portfolio, Xxxxx will reimburse
the Portfolio for such excess expense. Such expense reimbursement, if any,
will be estimated, reconciled and paid on a monthly basis.
9. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The Fund understands that Xxxxx now acts, will continue to act and may act
in the future as investment adviser to fiduciary and other managed accounts
and as investment manager to one or more other investment companies
(including other portfolios of the Fund), and the Fund has no objection to
Xxxxx so acting, provided that whenever the Portfolio and one or more other
accounts or investment companies advised by Xxxxx have available funds for
investment, investments suitable and appropriate for each will be allocated
in accordance with a formula believed to be equitable to each entity. The
Fund recognizes that in some case this procedure may adversely affect the
size of the position obtainable for the Portfolio. In addition, the Fund
understands that the persons employed by Xxxxx to assist in the performance
of Xxxxx'x duties hereunder will not devote their full time to such service
and nothing contained herein shall be deemed to limit or restrict the right
of Xxxxx or any affiliate of Xxxxx to engage in and devote time and
attention to other businesses or to render services of whatever kind or
nature.
10. TERM OF AGREEMENT
This Agreement shall continue until October 31, 2003 and thereafter shall
continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Board of
Trustees of the Fund or (ii) a vote of a "majority" (as defined in the Act)
of the Portfolio's outstanding voting securities, provided that in either
event the continuance is also approved by a majority of the Board of
Trustees who are not "interested persons" (as defined in the Act) of any
party to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval. This Agreement is terminable, without
penalty, on sixty (60) days' written notice, by the Board of Trustees of
the Fund or by vote of holders of a majority of the portfolio's outstanding
voting securities, or upon sixty (60) days' written notice, by Xxxxx. This
Agreement will also terminate automatically in the event of its assignment
(as defined in the Act and the rules thereunder).
11. REPRESENTATION BY THE FUND
The fund represents that a copy of its Agreement and Declaration of Trust,
dated March 20, 1986, together with all amendments thereto, is on file in
the office of the Secretary of the Commonwealth of Massachusetts.
12. LIMITATION OF LIABILITY
This Agreement has been executed on behalf of the Fund in respect of the
Portfolio by the undersigned officer of the Fund in his capacity as an
officer of the Fund. The
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obligations of this Agreement shall be binding on the assets and property
of the Portfolio only and shall not be binding on any other portfolio of
the Fund or any Trustee, officer or shareholder of the Fund individually.
13. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws (except the conflict-of-law rules) of the State of New York.
If the foregoing is in accordance with your understanding, kindly indicate your
acceptance hereof by signing and returning the enclosed copy hereof.
Very truly yours,
THE XXXXX FUND
By:
----------------------------
Authorized Officer
Agreed and Accepted:
XXXX XXXXX MANAGEMENT, INC.
By:
----------------------------
Authorized Officer
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