INVESTMENT ADVISORY AGREEMENT
THIS
AGREEMENT made as of the ____ day of March, 2010 by and between L. Xxx Xxxx
& Associates, LLP (the “Investment Adviser”), an Arizona Limited Liability
Partnership, and Xxxx Investment Trust (the “Trust”), an Ohio business
trust.
WHEREAS,
the Trust is an open-end, diversified management investment company registered
under the Investment Company Act of 1940, as amended (the “Act”), and is
currently authorized to issue separate series of shares, each having its own
investment objective, policies and restrictions, all as more fully described in
the prospectus and the statement of additional information constituting parts of
the Trust’s Registration Statement on Form N-1A filed the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, and the Act (the “Registration Statement”); and
WHEREAS,
the Trust is engaged in the business of investing and reinvesting the assets of
each of its series in securities (the “portfolio assets”) of the type and in
accordance with the limitations specified in the Trust’s Agreement and
Declaration of Trust (the “Declaration of Trust”) and Registration Statement,
and any representations made in its prospectus and statement of additional
information, all in such manner and to such extent as may from time to time be
authorized by the Trustees; and
WHEREAS,
the Trust has established the Xxxx Small & Mid-Cap Growth Fund (the “Fund”)
as a series of the Trust, and wishes to employ the Investment Adviser to manage
the investment and reinvestment of the Fund’s portfolio assets as above
specified and, without limiting the generality of the foregoing, to provide
management and other services specified below and acknowledges that it has
received prior to entering into this Agreement a copy of Form ADV-Part II as
filed by the Investment Adviser with the Commission.
NOW,
THEREFORE, the parties agree as follows:
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1.
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The
Trust hereby appoints the Investment Adviser to supervise and direct the
investments of and for the Fund and as the Fund’s agent and
attorney-in-fact with full discretionary and exclusive power and authority
to establish, maintain and trade in brokerage accounts for and in the name
of the Fund and to buy, sell and trade in all stocks, bonds and other
assets of the Fund. The Investment Adviser hereby accepts such
appointment and agrees to manage the portfolio assets in a manner
consistent with the investment objective, policies and restrictions of the
Fund and with applicable law.
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2.
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Unless
advised by the Trustees of the Trust of an objection, the Investment
Adviser may, to the extent permitted by applicable laws and regulations,
direct that a portion of the brokerage commissions that may be generated
by the Fund be applied to payment for brokerage and research
services. Brokerage and research services furnished by brokers
may include, but are not
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limited
to, written information and analyses concerning specific securities,
companies or sectors; market, financial and economic studies and forecasts
as well as discussions with research personnel; financial publications;
and statistic and pricing services utilized in the investment management
process. Brokerage and research services obtained by the use of
commissions arising from the Fund’s portfolio transactions may be used by
the Investment Adviser in its other investment activities. In
selecting brokers and negotiating commission rates, the Investment Adviser
will take into account the financial stability and reputation of brokerage
firms and the brokerage, execution and research services provided by such
brokers. The benefits which the Fund may receive from such
services may not be in direct proportion to the commissions generated by
the Fund. The Trust acknowledges that since commission rates
are generally negotiable, selecting brokers on the basis of considerations
which are not limited to applicable commission rates may result in higher
transaction costs that would otherwise by
obtainable.
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3.
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The
Investment Adviser may bunch orders for the Fund with orders for the same
security for other accounts managed by the Investment Adviser or its
affiliates. In such instances, the Fund will be charged the
average price per unit for the security in such
transactions. Complete records of such transactions will be
maintained by the Investment Adviser and will be made available to the
Trust upon request.
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4.
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The
Investment Adviser shall report to the Board of Trustees at each meeting
thereof important developments affecting the portfolio assets and on the
Investment Adviser’s own initiative will furnish the Trustees from time to
time with such information as the Investment Adviser may believe
appropriate for this purpose, whether concerning the individual issuers
whose securities are included in the portfolio assets, the industries in
which they engage, or the conditions prevailing in the economy
generally. The Investment Adviser will also furnish the
Trustees with such statistical and analytical information with respect to
the portfolio assets as the Investment Adviser may believe appropriate or
as the Trustees reasonably may request. In making purchases and
sales of the portfolio assets, the Investment Adviser will bear in mind
the policies set from time to time by the Board of Trustees as well as the
limitations imposed by the Declaration of Trust, and in the Trust’s
Registration Statement, in each case as amended from time to time, the
limitations of the Act and of the Internal Revenue Code of 1986, as
amended, with regard to regulated investment companies and the investment
objective, policies and practices, including restrictions applicable to
the Fund’s portfolio.
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5.
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The
Investment Adviser shall not be liable for any mistake of judgment or in
any event whatsoever, except for lack of good faith, provided that nothing
herein shall be deemed to protect, or purport to protect, the Investment
Adviser against any liability to the Fund or to its security holders to
which the Investment Adviser would otherwise be subject by reason of
willful
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misfeasance,
bad faith or gross negligence in the performance of its duties hereunder,
or by reason of the Investment Adviser’s reckless disregard of its
obligations and duties hereunder. It is understood that the
Investment Adviser may perform various investment advisory and managerial
services for others, and the Trust agrees that the Investment Adviser may
give advice and take action in the performance of its duties with respect
to others which may differ from advice given or action taken with respect
to the Fund. Nothing contained herein shall in any way
constitute a waiver or limitation of any rights which the Fund or its
shareholders may have under common law, or any federal or state securities
laws.
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6.
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This
Agreement shall become effective on the date hereof and shall remain in
effect for a period of two years from such date, and shall continue in
effect from year to year thereafter so long as its continuance is
specifically approved at least annually by the Board of Trustees or by a
vote of a majority of the outstanding voting securities (as defined in the
Act) of the Fund, and, in either case, by a vote, cast in person at a
meeting called for the purpose of voting on such approval, of a majority
of the Trust’s Trustees who are not parties to this Agreement or
interested persons, as defined in the Act, of any party to this Agreement,
and provided further, however, that if the continuation of this Agreement
is not approved, the Investment Adviser may continue to render to the Fund
the services described herein in the manner and to the extent permitted by
the Act and the rules and regulations thereunder. Upon the
effectiveness of this Agreement, it shall supersede all previous
agreements between the parties covering the subject matter
hereof. This Agreement may be terminated at any time, without
the payment of any penalty, by vote of a majority of the outstanding
voting securities (as defined in the Act) of the Fund, or by a vote of the
Board of Trustees on 60 days’ written notice to the Investment Adviser, or
by the Investment Adviser on 60 days’ written notice to the
Trust.
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7.
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This
Agreement shall not be amended unless such amendment is approved by vote,
cast in person at a meeting called for the purpose of voting on such
approval, of a majority of the Trust’s Trustees who are not parties to
this Agreement or interested persons, as defined in the Act, of any party
to this Agreement (other than as Trustees of the Trust), and, if required
by law, by vote of a majority of the outstanding voting securities (as
defined in the Act) of the Fund.
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8.
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This
Agreement may not be assigned by the Investment Adviser and shall
terminate automatically in the event of any assignment by the Investment
Adviser. The term “assignment” as used in this paragraph shall
have the meaning ascribed thereto by the Act and any regulations or
interpretations of the Commission
thereunder.
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9.
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If
the Investment Adviser ceases to act as investment adviser to the Fund,
or, in any event, if the Investment Adviser so requests in writing, the
Trust agrees to take all necessary action to change the names of the Trust
and the Fund to a name not including the term “Xxxx.” The
Investment Adviser may from time to time make available without charge to
the Trust for its use of such marks or symbols owned by the Investment
Adviser, including marks or symbols containing the term “Xxxx” or any
variation thereof, as the Investment Adviser may consider
appropriate. Any such marks or symbols so made available will
remain the Investment Adviser’s property and it shall have the right, upon
notice in writing, to require the Trust to cease the use of such xxxx or
symbol at any time.
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10.
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Effective
upon the commencement of operations of the Fund, the Fund shall pay the
Investment Adviser an investment advisory fee equal to 1.00% per annum of
the average daily net assets of the Fund. The investment
advisory fee will be computed and accrued daily and paid
monthly. The Investment Adviser’s compensation for the period
from the date hereof through the last day of the month of the effective
date hereof will be prorated based on the proportion that such period
bears to the full month. In the event of any termination of
this Agreement, the Investment Adviser’s compensation will be calculated
on the basis of a period ending on the last day on which this Agreement is
in effect, subject to proration based on the number of days elapsed in the
current period as a percentage of the total number of days in such
period.
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11.
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Unless
otherwise agreed to in writing by the parties, the Fund shall be
responsible and hereby assumes the obligation for payment of all of its
expenses, including, but not limited to: (a) payment to the Investment
Adviser of the fee provided for in the foregoing paragraph; (b) custody,
administration and transfer and dividend disbursing expenses; (c) fees of
trustees who are not affiliated persons of the Investment Adviser or any
administrator of the Trust; (d) legal and auditing expenses; (e) clerical,
accounting and other office costs; (f) the cost of personnel providing
services to the Fund; (g) costs of printing the Fund’s prospectuses and
shareholder reports for existing shareholders; (h) cost of maintenance of
the Fund’s corporate existence; (i) interest charges, taxes, brokerage
fees and commissions; (j) costs of stationery and supplies; (k) expenses
and fees related to registration and filing with the Commission and with
state regulatory authorities; (l) expenses related to the filing of the
Fund’s proxy voting record; and (m) such promotional, shareholder
servicing and other expenses as may be contemplated by one or more
effective plans pursuant to Rule 12b-1 under the Act or one or more
effective non-Rule 12b-1 shareholder servicing plans, in each case
provided, however, that the Fund’s payment of such promotional,
shareholder servicing and other expenses shall be in the amounts, and in
accordance with the procedures, set forth in such plan or
plans.
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12.
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Except
to the extent necessary to perform the Investment Adviser’s obligations
hereunder, nothing herein shall be deemed to limit or restrict the right
of the Investment Adviser or its members, officers or employees to engage
in any other business or to devote time and attention to the management of
other aspects of any other business, whether of a similar or dissimilar
nature, or to render services of any kind to any other individual or
entity.
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14.
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The
validity of the Agreement and the rights and liabilities of the parties
hereunder shall be determined in accordance with the laws of the State of
Ohio without regard to its conflict of laws provisions, provided, however,
that nothing herein shall be construed as being inconsistent with the
Act.
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15.
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A
copy of the Declaration of Trust is on file with the Secretary of the
State of Ohio, and notice is hereby given that this instrument is executed
on behalf of the Board of Trustees of the Trust and not individually and
that the obligations of this instrument are not binding upon any of the
Trustees, officers or shareholders individually but are binding only upon
the assets and property of the Fund, and the Investment Adviser shall look
only to the assets of the Fund for the satisfaction of such
obligations.
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16.
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The
Investment Adviser shall promptly notify the Trust of any change in the
ownership or control of the Investment
Adviser.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
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XXXX
INVESTMENT TRUST
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By:
___________________________
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L.
XXX XXXX & ASSOCIATES, LLP
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By: ___________________________
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