EXHIBIT 23D
XXXXXXXXXXX FUNDS, INC.
MANAGEMENT AGREEMENT
This Agreement is made the 8th day of April, 2003, by and between
Xxxxxxxxxxx Funds, Inc., a Maryland corporation (the `Fund'), and
Xxxxxxxxxxx Corporation, a Virginia corporation (`Adviser').
WHEREAS, the Fund engages in the business of investing and
reinvesting its assets and property in various stocks and
securities and is authorized to issue shares of capital stock in
separate series, each representing interests in a separate
portfolio of securities and other assets, with the initial series
being:
Xxxxxxxxxxx Value Fund (the `Portfolio'); and
WHEREAS, Adviser engages in the business of investment management
and the provision of certain other administrative services in
connection therewith; and
WHEREAS, the Fund wishes to engage Adviser to retain certain
investment management and administrative services which are
necessary for the day-to-day operations of the Portfolio in the
manner and on the terms and conditions hereinafter set forth, and
Adviser wishes to accept such engagement
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. OBLIGATIONS OF INVESTMENT ADVISER
a. START-UP EXPENSES. The Adviser will pay the organization
(start-up) expenses of the Fund, and will not be reimbursed for
such expenses by the Fund.
b. INVESTMENT ADVISORY SERVICES. Adviser agrees to perform the
following services for the Fund (collectively, the `Investment
Advisory Services'):
i. manage the investment and reinvestment of the Portfolio's
assets;
ii. review, supervise, and administer the investment program of
the Portfolio on an ongoing basis;
iii. determine, in its discretion, the securities to be
purchased, retained or sold for the Portfolio (and implement
those decisions);
iv. provide the Fund with records concerning the Adviser's
activities which the Fund is required to maintain; and
v. provide such information and reports as the Fund's officers
and directors reasonably require to discharge their
responsibilities to the Fund.
c. ADMINISTRATIVE SERVICES. The Fund hereby retains Adviser to
provide, or upon receipt of written approval of the Fund arrange
for other companies to provide, all administrative and
operational services necessary for the operation of the Portfolio
(collectively, the `Administrative Services'); such services may
include, but are not limited to:
(1) accounting services and functions, including costs and
expenses of independent public accountants;
(2) non-litigation related legal and compliance services,
including the expenses of maintaining registration and
qualification of the Fund and the Portfolio under federal, state
and other applicable laws and regulations;
(3) dividend disbursing agent, dividend reinvestment agent,
transfer agent, answering inquiries related to shareholder
Portfolio accounts;
(4) custodian services (which may be self-custodian, as
described under Rule 17f-2 of the Act), and depository services
and functions;
(5) distribution and/or marketing services;
(6) shareholder and board of directors communication services,
including the costs of preparing, printing and distributing
notices of shareholders' meetings, proxy statements,
prospectuses, statements of additional information, Portfolio
reports, and other communications to the Fund's Portfolio
shareholders, as well as expenses of shareholders' and board of
directors' meetings, including the compensation and reimbursable
expenses of the directors of the Fund;
(7) premiums for the fidelity bond maintained by the Fund
pursuant to Section 17(g) of the Act (except for such premiums as
may be allocated to third parties, as insureds thereunder).
d. EXCLUSIONS FROM SERVICES. Notwithstanding the provisions of
Paragraphs 1(b) and 1(c) above, the Investment Advisory Services
and Administrative Services shall not include and Adviser will
not be responsible for: interest; taxes; any extraordinary
expense, including but not limited to litigation and
indemnification costs and expenses; brokers' commissions and
other costs of securities transactions.
e. PROVISION OF SERVICES. Adviser shall discharge the foregoing
responsibilities subject to the general supervision and control
of the officers and the directors of the Fund and in compliance
with such policies as the directors may from time to time
establish, and in compliance with the objectives, policies, and
limitations set forth in the Fund's prospectus and statement of
additional information, as amended from time to time, and with
all applicable laws and regulations. All services to be furnished
by Adviser under this Agreement may be furnished through the
medium of any directors, officers or employees of Adviser or
through such other parties as Adviser may determine from time to
time. In the conduct of the respective businesses of the parties
hereto and in the performance of this agreement, the Fund and
Adviser may share common facilities and personnel common to each.
f. BOOKS AND RECORDS. All books and records prepared and
maintained by Adviser for the Fund under this Agreement shall be
the property of the Fund, and upon request, Adviser shall
surrender to the Fund such of the books and records so requested.
It is understood that computer equipment, software, and database
structures used by the Adviser for the Fund's data storage and
operations are the valuable property of the Adviser, and will not
be surrendered to the Fund.
2. COMPENSATION OF ADVISER. The Fund will pay to Adviser on the
last day of each month:
a. a fee at an annual rate equal to 1.00% of the daily average
net asset value of the Portfolio for INVESTMENT ADVISORY
SERVICES;
b. a fee at an annual rate equal to 0.50% of the daily average
net asset value of the Portfolio for ADMINISTRATIVE SERVICES;
such fees to be computed daily based upon the net asset value
of the Portfolio as determined by a valuation made in
accordance with the Fund's procedures for calculating
Portfolio net asset value as described in the Fund's
Prospectus and/or Statement of Additional Information. During
any period when the determination of a Portfolio's net asset
value is suspended by the directors of the Fund, the net asset
value of a share of the Portfolio as of the last business day
prior to such suspension shall, for the purpose of this
Paragraph 2, be deemed to be net asset value at the close of
each succeeding business day until it is again determined. For
the month and year in which this Agreement becomes effective
or terminates, there shall be an appropriate proration on the
basis of the number of days that the Agreement is in effect
during the month and year, respectively. The Adviser may, from
time to time and at the Adviser's sole discretion, waive
compensation without affecting the validity of this Agreement.
Employees, officers, or directors of the Adviser who serve as
directors and/or officers of the Fund shall receive no
compensation from the Fund for acting in such capacities for
the Fund.
3. BROKERAGE. Adviser is authorized to select the brokers or
dealers that will execute the purchases and sales of securities
for the Fund and is directed to use its best efforts to obtain
the best net results as described in the Fund's prospectus and
statement of additional information from time to time. Adviser
may, in its discretion, purchase and sell Fund securities from
and to brokers and dealers who provide the Fund with research,
analysis, advice and similar services, and Adviser may pay to
these brokers and dealers, in return for research and analysis, a
higher commission or spread than may be charged by other brokers
and dealers, provided that Adviser determines in good faith that
such commission is reasonable in terms either of that particular
transaction or of the overall responsibility of Adviser to the
Fund and its other clients and that the total commission paid by
the Fund will be reasonable in relation to the benefits to the
Fund over the long-term. Adviser will promptly communicate to the
officers and the directors of the Fund such information relating
to brokerage transactions as they may reasonably request.
4. STATUS OF INVESTMENT ADVISER. The services of Adviser to the
Fund are not to be deemed exclusive, and Adviser shall be free to
render similar services to others so long as its services to the
Fund are not impaired thereby. Adviser shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
Nothing in this Agreement shall limit or restrict the right of
any director, officer or employee of Adviser, who may also be a
director, officer, or employee of the Fund, to engage in any
other business or to devote his or her time and attention in part
to the management or other aspects of any other business, whether
of a similar nature or a dissimilar nature.
5. PERMISSIBLE INTERESTS. Directors, officers, agents, and
stockholders of the Fund are or may be interested in Adviser (or
any successor thereof) as directors, partners, officers, or
stockholders, or otherwise, and directors, officers, agents, and
stockholders of Adviser are or may be interested in the Fund as
directors, officers, stockholders or otherwise; and Adviser (or
any successor) is or may be interested in the Fund as a
stockholder or otherwise.
6. LIABILITY OF ADVISER. Adviser shall give the Fund the
benefit of its best judgment and efforts in rendering these
services. It is understood that Adviser's advice, while based on
information believed to be correct, is not guaranteed. The fund
agrees as an inducement to the undertaking of these services that
Adviser and its officers, directors, employees, agents,
controlling persons and assigns shall be protected from liability
hereunder for any mistake of judgment or any event whatsoever,
provided that nothing herein shall be deemed to protect, or
purport to protect, Adviser against any liability to the Fund or
to its security holders to which the Adviser would otherwise be
subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder, or by reason
of reckless disregard of obligations and duties hereunder. Any
person, even though also an officer, partner, employee, or agent
of the Adviser, who may be or become an officer, director,
employee or agent of the Fund shall be deemed, when rendering
services to the Fund or acting in any business of the Fund, to be
rendering such services to or acting solely for the Fund and not
as an officer, partner, employee, or agent or one under the
control or direction of the Adviser even though paid by it.
7. TERM. This Agreement shall become effective the 8th day of
May, 2003 and remain in effect until May 8, 2005, and from year
to year thereafter provided such continuance is specifically
approved at least annually in accordance with Section 15 of the
Investment Company Act of 1940, as amended, and any rules and
regulations thereunder (the `Act'); provided however, that;
a. this Agreement may be terminated at any time, without the
payment of any penalty by the Fund or by the Adviser on thirty
(30) days written notice to the other party (the Fund may effect
termination by action of the Board of Directors or by vote of a
majority of the outstanding shares of common stock of the fund,
accompanied by appropriate notice);
b. this Agreement shall immediately terminate in the event of
its assignment by the Adviser (within the meaning of the Act);
c. the terms of Paragraph 6 of this Agreement shall survive the
termination of this Agreement, as will the right of the Adviser
to receive payment of the compensation described in Paragraph 2
hereof and any expenses prepaid on behalf of the Fund, prorated
to the date of termination.
8. AMENDMENTS. This Agreement contains the entire Agreement of
the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements and understandings,
oral or written, if any, between the parties hereto. 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
this Agreement with respect to any Portfolio shall be effective
until approved by vote of the holders of a majority of that
Portfolio's voting securities.
9. USE OF NAME. It is understood that the name `Xxxxxxxxxxx' or
any derivative thereof or logo associated with that name is the
valuable property of the Adviser, and that the Fund has the right
to use such name (or derivative or logo) only with the approval
of the Adviser and only so long as the Adviser is investment
adviser to the Fund. Upon termination of this Agreement between
the Fund and the Adviser, the Fund shall forthwith cease to use
such name (or derivative or logo).
10. SEVERABILITY. In the event any provision or provisions of
this Agreement shall be held to be illegal or invalid for any
reason (including, without limitation, not conforming to
applicable federal and state securities laws), the illegality or
invalidity shall not affect the remaining provisions of this
Agreement, but shall be fully severable and the Agreement shall
be construed in force as if the illegal or invalid provisions had
never been included herein. Furthermore, in lieu of such illegal
or invalid provision, there shall be added automatically as part
of the Agreement a provision as similar in terms to such illegal
or such invalid provision as may be possible and be legal and
valid.
11. CHOICE OF LAW. This Agreement shall be construed in
accordance with the laws of the State of Maryland, without giving
effect to the conflicts of laws principles thereof, and the Act.
To the extent the laws of the State of Maryland conflict with the
applicable provisions of the Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and the year first written above.
Xxxxxxxxxxx Funds, Inc. Xxxxxxxxxxx Corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxx Xxxxxxxxxxx
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Xxxxx X. Xxxxxx, Vice President Xxx Xxxxxxxxxxx, President
