EX-99.D(31) 4 dex99d31.htm FORM OF MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT ("Agreement") is made this day of
, 2008, by and between Xxxx Xxxxx Partners Equity
Trust (the "Trust") and Xxxx Xxxxx Partners Fund Advisor, LLC, a
Delaware limited liability company (the "Manager").
WHEREAS, the Trust is registered as a management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Manager is engaged primarily in rendering investment
advisory, management and administrative services and is registered as
an investment adviser under the Investment Advisers Act of 1940, as
amended;
WHEREAS, the Trust wishes to retain the Manager to provide
investment advisory, management, and administrative services to the
Trust with respect to the series of the Trust designated in Schedule A
annexed hereto (the "Fund"); and
WHEREAS, the Manager is willing to furnish such services on the
terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
1. The Trust hereby appoints the Manager to act as investment
adviser and administrator of the Fund for the period and on the terms
set forth in this Agreement. The Manager accepts such appointment and
agrees to render the services herein set forth, for the compensation
herein provided.
2. The Fund shall at all times keep the Manager fully informed with
regard to the securities owned by it, its funds available, or to become
available, for investment, and generally as to the condition of its
affairs. It shall furnish the Manager with such other documents and
information with regard to its affairs as the Manager may from time to
time reasonably request.
3. (a) Subject to the supervision of the Trust"s Board of Trustees
(the "Board"), the Manager shall regularly provide the Fund with
investment research, advice, management and supervision and shall
furnish a continuous investment program for the Fund"s portfolio of
securities and other investments consistent with the Fund"s investment
objectives, policies and restrictions, as stated in the Fund"s current
Prospectus and Statement of Additional Information. The Manager shall
determine from time to time what securities and other investments will
be purchased, retained, sold or exchanged by the Fund and what portion
of the assets of the Fund"s portfolio will be held in the various
securities and other investments in which the Fund invests, and shall
implement those decisions, all subject to the provisions of the Trust"s
Declaration of Trust and By-Laws (collectively, the "Governing
Documents"), the 1940 Act, and the applicable rules and regulations
promulgated thereunder by the Securities and Exchange Commission (the
"SEC") and interpretive guidance issued thereunder by the SEC staff and
any other applicable federal and state law, as well as the investment
objectives, policies and restrictions of the Fund referred to above,
and any other specific policies adopted by the Board and disclosed to
the Manager. The Manager is authorized as the agent of the Trust to
give instructions to the custodian of the Fund as to deliveries of
securities and other investments and payments of cash for the account
of the Fund. Subject to applicable provisions of the 1940 Act and
direction from the Board, the investment program to be provided
hereunder may entail the investment of all or substantially all of the
assets of a Fund in one or more investment companies. The Manager will
place orders pursuant to its investment determinations for the Fund
either directly with the issuer or with any broker or dealer, foreign
currency dealer, futures commission merchant or others selected by it.
In connection with the selection of such brokers or dealers and the
placing of such orders, subject to applicable law, brokers or dealers
may be selected who also provide brokerage and research services (as
those terms are defined in Section 28(e) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) to the Funds and/or the other
accounts over which the Manager or its affiliates exercise investment
discretion. The Manager is authorized to pay a broker or dealer who
provides such brokerage and research services a commission for
executing a portfolio transaction for a Fund which is in excess of the
amount of commission another broker or dealer would have charged for
effecting that transaction if the Manager 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 Manager and its affiliates have with respect to accounts over
which they exercise investment discretion. The Board may adopt policies
and procedures that modify and restrict the Manager"s authority
regarding the execution of the Fund"s portfolio transactions provided
herein. The Manager shall also provide advice and recommendations with
respect to other aspects of the business and affairs of the Fund, shall
exercise voting rights, rights to consent to corporate action and any
other rights pertaining to a Fund"s portfolio securities subject to
such direction as the Board may provide, and shall perform such other
functions of investment management and supervision as may be directed
by the Board.
(b) Subject to the direction and control of the Board, the Manager
shall perform such administrative and management services as may from
time to time be reasonably requested by the Fund as necessary for the
operation of the Fund, such as (i) supervising the overall
administration of the Fund, including negotiation of contracts and fees
with and the monitoring of performance and xxxxxxxx of the Fund"s
transfer agent, shareholder servicing agents, custodian and other
independent contractors or agents, (ii) providing certain compliance,
fund accounting, regulatory reporting, and tax reporting services,
(iii) preparing or participating in the preparation of Board materials,
registration statements, proxy statements and reports and other
communications to shareholders, (iv) maintaining the Fund"s existence,
and (v) during such times as shares are publicly offered, maintaining
the registration and qualification of the Fund"s shares under federal
and state laws. Notwithstanding the foregoing, the Manager shall not be
deemed to have assumed any duties with respect to, and shall not be
responsible for, the distribution of the shares of any Fund, nor shall
the Manager be deemed to have assumed or have any responsibility with
respect to functions specifically assumed by any transfer agent, fund
accounting agent, custodian, shareholder servicing agent or other
agent, in each case employed by the Fund to perform such functions.
(c) The Fund 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 Fund
which is permitted by Section 11(a) of the Exchange Act and Rule 11a2-
2(T) thereunder, and the Fund hereby consents to the retention of
compensation for such transactions in accordance with Rule 11a2-
2(T)(a)(2)(iv). Notwithstanding the foregoing, the Manager agrees that
it will not deal with itself, or with members of the Board or any
principal underwriter of the Fund, as principals or agents in making
purchases or sales of securities or other property for the account of
the Fund, nor will it purchase any securities from an underwriting or
selling group in which the Manager or its affiliates is participating,
or arrange for purchases and sales of securities between a Fund and
another account advised by the Manager or its affiliates, except in
each case as permitted by the 1940 Act and in accordance with such
policies and procedures as may be adopted by a Fund from time to time,
and will comply with all other provisions of the Governing Documents
and the Fund"s then-current Prospectus and Statement of Additional
Information relative to the Manager and its directors and officers.
4. Subject to the Board"s approval, the Manager or the Fund may
enter into contracts with one or more investment subadvisers or
subadministrators, including without limitation, affiliates of the
Manager, in which the Manager delegates to such investment subadvisers
or subadministrators any or all its duties specified hereunder, on such
terms as the Manager will determine to be necessary, desirable or
appropriate, provided that in each case the Manager shall supervise the
activities of each such subadviser or subadministrator and further
provided that such contracts impose on any investment subadviser or
subadministrator bound thereby all the conditions to which the Manager
is subject hereunder and that such contracts are entered into in
accordance with and meet all applicable requirements of the 1940 Act.
5. (a) The Manager, at its expense, shall supply the Board and
officers of the Trust with all information and reports reasonably
required by them and reasonably available to the Manager and shall
furnish the Fund with office facilities, including space, furniture and
equipment and all personnel reasonably necessary for the operation of
the Fund. The Manager shall oversee the maintenance of all books and
records with respect to the Fund"s securities transactions and the
keeping of the Fund"s books of account in accordance with all
applicable federal and state laws and regulations. In compliance with
the requirements of Rule 31a-3 under the 1940 Act, the Manager hereby
agrees that any records that it maintains for the Fund are the property
of the Fund, and further agrees to surrender promptly to the Fund any
of such records upon the Fund"s request. The Manager further agrees to
arrange for the preservation of the records required to be maintained
by Rule 31a-1 under the 1940 Act for the periods prescribed by Rule
31a-2 under the 1940 Act. The Manager shall authorize and permit any of
its directors, officers and employees, who may be elected as Board
members or officers of the Fund, to serve in the capacities in which
they are elected.
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(b) The Manager shall bear all expenses, and shall furnish all
necessary services, facilities and personnel, in connection with its
responsibilities under this Agreement. Other than as herein
specifically indicated, the Manager shall not be responsible for the
Fund"s expenses, including, without limitation, advisory fees;
distribution fees; interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection with membership
in investment company organizations; organization costs of the Fund;
the cost (including brokerage commissions, transaction fees or charges,
if any) in connection with the purchase or sale of the Fund"s
securities and other investments and any losses in connection
therewith; fees and expenses of custodians, transfer agents,
registrars, independent pricing vendors or other agents; legal
expenses; loan commitment fees; expenses relating to share
certificates; expenses relating to the issuing and redemption or
repurchase of the Fund"s shares and servicing shareholder accounts;
expenses of registering and qualifying the Fund"s shares for sale under
applicable federal and state law; expenses of preparing, setting in
print, printing and distributing prospectuses and statements of
additional information and any supplements thereto, reports, proxy
statements, notices and dividends to the Fund"s shareholders; costs of
stationery; website costs; costs of meetings of the Board or any
committee thereof, meetings of shareholders and other meetings of the
Fund; Board fees; audit fees; travel expenses of officers, members of
the Board and employees of the Fund, if any; and the Fund"s pro rata
portion of premiums on any fidelity bond and other insurance covering
the Fund and its officers, Board members and employees; litigation
expenses and any non-recurring or extraordinary expenses as may arise,
including, without limitation, those relating to actions, suits or
proceedings to which the Fund is a party and the legal obligation which
the Fund may have to indemnify the Fund"s Board members and officers
with respect thereto.
6. No member of the Board, officer or employee of the Trust or Fund
shall receive from the Trust or Fund any salary or other compensation
as such member of the Board, officer or employee while he is at the
same time a director, officer, or employee of the Manager or any
affiliated company of the Manager, except as the Board may decide. This
paragraph shall not apply to Board members, executive committee
members, consultants and other persons who are not regular members of
the Manager"s or any affiliated company"s staff.
7. As compensation for the services performed and the facilities
furnished and expenses assumed by the Manager, including the services
of any consultants retained by the Manager, the Fund shall pay the
Manager, as promptly as possible after the last day of each month, a
fee, computed daily at an annual rate set forth opposite the Fund"s
name on Schedule A annexed hereto, provided however, that if the Fund
invests all or substantially all of its assets in another registered
investment company for which the Manager or an affiliate of the Manager
serves as investment adviser or investment manager, the annual fee
computed as set forth on such Schedule A shall be reduced by the
aggregate management fees allocated to that Fund for the Fund"s then-
current fiscal year from such other registered investment company. The
first payment of the fee shall be made as promptly as possible at the
end of the month succeeding the effective date of this Agreement, and
shall constitute a full payment of the fee due the Manager for all
services prior to that date. If this Agreement is terminated as of any
date not the last day of a month, such fee shall be paid as promptly as
possible after such date of termination, shall be based on the average
daily net assets of the Fund in that period from the beginning of such
month to such date of termination, and shall be that proportion of such
average daily net assets as the number of business days in such period
bears to the number of business days in such month. The average daily
net assets of the Fund shall in all cases be based only on business
days and be computed as of the time of the regular close of business of
the New York Stock Exchange, or such other time as may be determined by
the Board.
8. The Manager assumes no responsibility under this Agreement other
than to render the services called for hereunder, in good faith, and
shall not 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 for a Fund, provided that
nothing in this Agreement shall protect the Manager against any
liability to the Fund to which the Manager would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard of its
obligations and duties hereunder. As used in this Section 8, the term
"Manager" shall include any affiliates of the Manager performing
services for the Trust or the Fund contemplated hereby and the
partners, shareholders, directors, officers and employees of the
Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the right of
any director, officer, or employee of the Manager who may also be a
Board member, officer, or employee of the Trust or the Fund, to engage
in any other business or to devote his time and attention in part to
the management or other aspects of any other business, whether of a
similar nature or a dissimilar nature, nor to limit or restrict the
right of the Manager to engage in any other business or to render
services of any kind, including investment advisory and management
services, to any
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other fund, firm, individual or association. If the purchase or sale of
securities consistent with the investment policies of a Fund or one or
more other accounts of the Manager is considered at or about the same
time, transactions in such securities will be allocated among the
accounts in a manner deemed equitable by the Manager. Such transactions
may be combined, in accordance with applicable laws and regulations,
and consistent with the Manager"s policies and procedures as presented
to the Board from time to time.
10. For the purposes of this Agreement, the Fund"s "net assets"
shall be determined as provided in the Fund"s then-current Prospectus
and Statement of Additional Information and the terms "assignment,"
"interested person," and "majority of the outstanding voting
securities" shall have the meanings given to them by Section 2(a) of
the 1940 Act, subject to such exemptions as may be granted by the SEC
by any rule, regulation or order.
11. This Agreement will become effective with respect to the Fund
on the date set forth opposite the Fund"s name on Schedule A annexed
hereto, provided that it shall have been approved by the Trust"s Board
and by the shareholders of the Fund in accordance with the requirements
of the 1940 Act and, unless sooner terminated as provided herein, will
continue in effect until , 2010. Thereafter,
if not terminated, this Agreement shall continue in effect with respect
to the Fund, so long as such continuance is specifically approved at
least annually (i) by the Board or (ii) by a vote of a majority of the
outstanding voting securities of the Fund, provided that in either
event the continuance is also approved by a majority of the Board
members who are not interested persons of any party to this Agreement,
by vote cast in person at a meeting called for the purpose of voting on
such approval.
12. This Agreement is terminable with respect to the Fund without
penalty by the Board or by vote of a majority of the outstanding voting
securities of the Fund, in each case on not more than 60 days" nor less
than 30 days" written notice to the Manager, or by the Manager upon not
less than 90 days" written notice to the Fund, and will be terminated
upon the mutual written consent of the Manager and the Trust. This
Agreement shall terminate automatically in the event of its assignment
by the Manager and shall not be assignable by the Trust without the
consent of the Manager.
13. The Manager agrees that for services rendered to the Fund, or
for any claim by it in connection with services rendered to the Fund,
it shall look only to assets of the Fund for satisfaction and that it
shall have no claim against the assets of any other portfolios of the
Trust. The undersigned officer of the Trust has executed this Agreement
not individually, but as an officer under the Trust"s Declaration of
Trust and the obligations of this Agreement are not binding upon any of
the Trustees, officers or shareholders of the Trust individually.
14. 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 the
Agreement shall be effective until approved, if so required by the 1940
Act, by vote of the holders of a majority of the Fund"s outstanding
voting securities.
15. This Agreement embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and
understandings relating to the subject matter hereof. Should any part
of this Agreement be held or made invalid by a court decision, statute,
rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding on and shall inure to
the benefit of the parties hereto and their respective successors.
16. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New
York.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized.
XXXX XXXXX PARTNERS EQUITY
TRUST
By:
Name:
R. Xxx Xxxxxx
Title:
President and Chief
Executive Officer
XXXX XXXXX PARTNERS FUND
ADVISOR, LLC
By:
Name:
Title:
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Schedule A
Xxxx Xxxxx Partners U.S. Large Cap Equity Fund
Date:
, 2008
Fee:
The following percentages of the Fund"s average daily net assets:
Up to and including $1 billion"0.75%
Over $1 billion and up to and including $2 billion"0.725%
Over $2 billion and up to and including $5 billion"0.70%
Over $5 billion and up to and including $10 billion"0.675%
Over $10 billion"0.65%
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