EXHIBIT G
XXXX XXXXXXX INVESTORS TRUST
INVESTMENT MANAGEMENT CONTRACT
AS AMENDED AND RESTATED
AUGUST 22, 2003
XXXX XXXXXXX INVESTORS TRUST
Xxxxxx, Xxxxxxxxxxxxx 00000
August 22, 2003
Xxxx Xxxxxxx Advisers, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
INVESTMENT MANAGEMENT CONTRACT
Dear Sirs:
Xxxx Xxxxxxx Investors Trust (the "Trust") has been organized as a
business trust under the laws of Massachusetts to engage in the business of
investing securities. Its Trustees have selected you to provide investment
advice and management for the Trust and to provide certain other services, as
more fully set forth below, and you are willing to provide such advice,
management and services under the terms and conditions hereinafter set forth.
Accordingly, the Trust agrees with you as follows:
1. Delivery of Trust Documents. The Trust has furnished you with copies,
properly certified or authenticated, of each of the following:
(a) "Declaration of Trust" of the Trust.
(b) "By-Laws of the Trust" as in effect on the date hereof.
(c) "Resolutions of the Trustees" of the Trust selecting you as investment
adviser and manager and approving the form of this Contract.
The Trust will furnish you from time to time with copies, properly certified or
authenticated, of all amendments of or supplements to the foregoing, if any.
2. Investment Services. You will use your best efforts to present to the
Trust a continuing and suitable investment program consistent with the
investment policies and objective of the Trust. In the performance of your
duties hereunder, subject always to the provisions contained in the documents
delivered to you pursuant to Section 1, as each of the same may from time to
time be amended or supplemented, you will, at your own expense:
(a) furnish the Trust with advice and recommendations, consistent
with the investment policies of the Trust with respect to the purchase,
holding and disposition of portfolio securities;
(b) advise the Trust in connection with policy decisions to be made
by its Trustees or any committee thereof and, as requested, furnish the
Trust with research, economic and statistical data in connection with the
Trust's investments and investment policies;
(c) provide administration of the day-to-day investment operations
of the Trust;
(d) investigate and conduct relations with the issuers of securities
privately purchased or to be purchased by the Trust;
(e) submit reports analyzing each portfolio security of the Trust at
least monthly and more frequently on the request of the Trust's Board of
Trustees;
(f) assist the Trust in any negotiations relating to the Trust's
investments with issuers, investment banking firms, securities brokers or
dealers and other institutions or investors;
(g) provide office space and office equipment, the use of accounting
equipment when required, and necessary executive, clerical and secretarial
personnel for the performance of the foregoing services;
(h) from time to time or any time requested by the Trustees of the
Trust, make reports to the Trust of your performance of the foregoing
services and furnish advice and recommendations with respect to other
aspects of the business and affairs of the Trust; and
(i) maintain and preserve the records required by the Investment
Company Act of 1940 to be maintained and preserved by the Trust. You agree
that such records are the property of the Trust and will be surrendered to
the Trust promptly upon request therefore.
3. Expenses of the Adviser. You will pay:
(a) the compensation and expenses of all officers and employees of
the Trust;
(b) the expenses of office rent, telephone, utilities, office
furniture, equipment and other office expenses of the Trust;
(c) the expense of periodic calculations of the net asset value of
the Trust's shares;
(d) any other expenses incurred by you in connection with the
performance of your duties hereunder.
4. Expenses of the Trust. You will not be required to pay any expenses of
the Trust not expressly assumed by you. In particular, and without limiting the
generality of the foregoing, you will not be required to pay:
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(a) the compensation and expenses of Trustees who are not interested
persons (as used in this Contract, such term shall have the meaning
specified in the Investment Company Act of 1940, as amended) of you, and
of independent advisers, independent contractors, consultants, managers
and other agents employed by the Trust other than through you;
(b) legal, accounting, financial management, tax and auditing fees
and expenses of the Trust (including an allocable portion of the cost of
its employees rendering such services to the Trust);
(c) the fees or disbursements of custodians and depositories of the
Trust's assets, transfer agents, disbursing agents, and registrars;
(d) taxes or governmental fees;
(e) the cost of preparing and mailing dividends, distributions,
reports, notices and proxy materials to stockholders;
(f) brokers' commissions or underwriting fees; and
(g) insurance as required by the Trustees of the Trust.
5. Compensation of the Adviser. For all services to be rendered and
payments to be made by you as provided in paragraphs 2 and 3 hereof, the Trust
will pay you quarterly, an investment management fee approximately equivalent on
an annual basis to a stated percentage of the average weekly managed assets of
the Trust as set forth below:
Net Asset Value Annual Rate
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First $150,000,000 0.650%
Next $50,000,000 0.375%
Next $100,000,000 0.350%
Amount Over $300,000,000 0.300%
"Managed assets" means the total assets of the Trust (including any assets
attributable to any leverage that may be outstanding) minus the sum of accrued
liabilities (other than liabilities representing financial leverage). The
liquidation preference of any preferred shares is not a liability. The "average
weekly managed assets" of the Trust shall be determined on the basis set forth
in the Trust's prospectus or otherwise consistent with the 1940 Act and the
rules and regulations promulgated thereunder, provided that a majority of the
Trustees of the Trust, including a majority of the Trustees of the Trust who are
not interested persons of you or of the Trust (otherwise than as Trustees) shall
have approved the valuations of the Trust's assets on which such fee is based.
6. Other Activities of Adviser and Its Affiliates. Nothing herein
contained shall prevent you or any affiliate or associate of yours from engaging
in any other business or from acting as investment adviser or investment manager
for any other person or entity, whether or not having investment policies or
portfolios similar to the Trust's; and it is specifically understood that
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officers, directors and employees of yours and those of your parent company,
Xxxx Xxxxxxx Mutual Insurance Company, may continue to engage in portfolio
management and advice on behalf of other investment companies, whether or not
registered, and of the said Insurance Company itself.
7. Avoidance of Inconsistent Position. In connection with purchases or
sales of portfolio securities for the account of the Trust neither you nor any
of your directors, officers or employees will act as principal or agent or
receive any commission. If any occasion should arise in which you advise persons
concerning the shares of the Trust you will act solely on your own behalf and
not in any way on behalf of the Trust.
8. No Partnership or Joint Venture. The Trust and you are not partners or
joint venturers with each other and nothing herein shall be construed so as to
make them such partners or joint venturers or impose any liability as such on
either of them.
9. Name of Trust. The Trust may use the name "Xxxx Xxxxxxx" or may name
derived from or similar to the name "Xxxx Xxxxxxx Advisers, Inc." or "Xxxx
Xxxxxxx Mutual Life Insurance Company" only for so long as this Agreement or any
extension, renewal, or amendment hereof remains in effect. At such time as such
an agreement shall no longer be in effect, the Trust will (to the extent that it
lawfully can) cease to use such a name or any other name indicating that it is
advised by or otherwise connected with you.
10. Limitation of Liability of Adviser. You shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Contract relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on your part
in the performance of your duties or from reckless disregard by you of your
obligations and duties under this Contract. Any person, even though also
employed by you, who may be or become an employee of and paid by the Trust shall
be deemed, when acting within the scope of his employment by the Trust to be
acting in such employment solely for the Trust and not as your employee or
agent.
11. Duration and Termination of this Contract. This Contract shall remain
in force but only so long as such continuance is specifically approved at least
annually by (a) a majority of the Trustees who are not interested persons of you
or (other than as Trustees) of the Trust cast in person at a meeting called for
the purpose of voting on such approval, and (b) either (i) the Trustees of the
Trust or (ii) a majority of the outstanding voting securities of the Trust. This
Contract may, on 60 days' written notice, be terminated at any time without the
payment of any penalty, by the Trustees of the Trust; by vote of a majority of
the outstanding voting securities of the Trust; or by you. This Contract shall
automatically terminate in the event of its assignment. In interpreting the
provisions of this Paragraph 11, the definitions contained in Section 2(a) of
the Investment Company Act of 1940, as amended (particularly the definitions of
"assignment" and "voting security"), shall be applied.
12. Amendment of this Contract. No provision of this Contract 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 amendment of this Contract shall be
effective until approved by (a) a majority of the Trustees who are not
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interested persons of you or (other than as Trustees) of the Trust cast in
person at a meeting called for the purpose of voting on such approval, and (b)
either (i) the Trustees of the Trust or (ii) a majority of the outstanding
voting securities of the Trust as defined in the Investment Company Act of 1940,
as amended.
13. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Contract may be executed simultaneously in two or more 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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If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Trust, whereupon this letter shall become a binding contract.
Yours very truly,
XXXX XXXXXXX INVESTORS TRUST
By
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Chairman of the Board and President
The foregoing Agreement is hereby accepted as of the date thereof.
XXXX XXXXXXX ADVISERS, INC.
By
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Vice Chairman of the Board and President
The name Xxxx Xxxxxxx Investors Trust is the designation of the Trustees
under the Declaration of Trust, dated October 5, 1984, as amended from time to
time. The obligations of the Trust are not personally binding upon, nor shall
resort be had to the private property of, any of the Trustees, shareholders,
officers, employees or agents of the Trust but only the Trust's property shall
be bound.
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