Exhibit 23(d)
INVESTMENT ADVISORY AGREEMENT
Between
MEEDER PREMIER PORTFOLIOS
And
XXXXXX ASSET MANAGEMENT, INC.
This Agreement is made the ___ day of October, 2003, by and between the
MEEDER PREMIER PORTFOLIOS, a business trust organized and existing under the
laws of the State of Massachusetts (the "Trust"), on behalf of itself and the
Portfolios (as defined below), and XXXXXX ASSET MANAGEMENT, INC., a corporation
organized and existing under the laws of the State of Ohio (the "Adviser").
W I T N E S S E T H :
WHEREAS, the Trust is engaged in business as an open-end management
investment company and maintains the portfolios set forth on Schedule A attached
hereto, as such Schedule may be amended from time to time by agreement of the
Trust and the Adviser (each a "Portfolio" and collectively, the "Portfolios");
WHEREAS, each Portfolio is registered as such under the Investment Company
Act of 1940, as amended (collectively with the rules and regulations promulgated
thereunder the "1940 Act"); and
WHEREAS, the Adviser is engaged principally in the business of rendering
investment and supervisory services and is registered as an investment adviser
under the Investment Advisers Act of 1940, as amended; and
WHEREAS, the Trust desires to retain the Adviser to render investment and
supervisory services to each Portfolio in the manner and on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
I
INVESTMENT RESPONSIBILITY
-------------------------
(1) In providing the services and assuming the obligations set forth
herein, the Adviser may, at its expense, employ one or more subadvisers.
References herein to the Adviser shall include any subadviser employed by the
Adviser. Any agreement between the Adviser and
a subadviser shall be subject to the renewal, termination and amendment
provisions of section V hereof.
The Trust hereby retains the Adviser to supervise and assist in the
management of the assets for each Portfolio and to furnish the Portfolios with a
continuous program for the investment of each Portfolio's assets, including:
a. Recommendations as to specific securities to be purchased for or
eliminated from each Portfolio's portfolio, and
b. Recommendations as to the portion of each Portfolio's assets that
should be held uninvested.
(2) Notwithstanding the generality of the foregoing, the Adviser may
itself, and at its own expense, contract for such supplementary advisory and
research services as it deems necessary or desirable to fulfill its obligations
under paragraph (1) above, provided that any such contract shall have been
approved by the Trust and its shareholders to the extent, and in the manner,
required by the 0000 Xxx.
(3) The Adviser shall furnish to the Trust the services of one or more
persons who shall be authorized by the Trust to place orders for the purchase
and sale of securities for the account of each Portfolio. Acting through a
person so authorized by the Trust, the Adviser shall place such orders for each
Portfolio.
(4) Notwithstanding the generality of paragraph (3) above, and subject to
the provisions of paragraphs (5) and (6) below, the Adviser shall endeavor to
secure for each Portfolio the best possible price and execution of every
purchase and sale for the account of each Portfolio. In seeking such best price
and execution the Adviser shall use its own judgment as to the implementation of
its own investment recommendations, including the Adviser's judgment as to the
time when an order should be placed, the number of securities to be bought or
sold in any one trade that is a part of any particular recommendation, and the
market in which an order should be placed.
(5) The Adviser shall use its own judgment in determining the
broker-dealers who shall be employed to execute orders for the purchase or sale
of securities for the Portfolios, in order to:
a. Secure best price and execution on purchases and sales for the
Portfolios; and
b. Secure supplemental research and statistical data for use in
making its recommendations to the Portfolios.
(6) The Adviser shall use its discretion as to when, and in which market,
each Portfolio's transactions shall be executed, in order to secure for the
Portfolios the benefits of best price and execution, and supplemental research
and statistical data. The use of such discretion
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shall be subject to review by the Trustees of the Trust at any time and from
time to time. The Trust, acting by its Trustees, may withdraw said discretion at
any time, and may direct the execution of portfolio transactions for the
Portfolios in any lawful manner different from that provided for herein. Until a
decision is made to withdraw or limit the discretion herein granted, the Adviser
shall not be liable for any loss suffered by the Portfolios through the exercise
by the Adviser of that discretion (except to the extent set forth in Article VI,
Section (4) hereof).
II
ADMINISTRATIVE RESPONSIBILITY
-----------------------------
During the continuance of this Agreement, and except as provided in g.
below, Adviser shall provide the Portfolios with a continuous program of general
administration including:
a. Office space, equipment, supplies and utility services as shall
be required to conduct each Portfolio's business;
b. The provision and supervision of all persons performing the
executive, administrative, and clerical functions necessary for the conduct
of each Portfolio's business, including providing for services to be
performed by each Portfolio's Transfer Agent, Dividend Disbursing Agent,
Redemption Agent, Administrators and Auditors;
c. The supervision of accounting, and of records and record keeping
for the Portfolios;
d. The preparation and distribution of mandatory reports to
Portfolios' shareholders and regulatory bodies;
e. The supervision of the daily net asset value of each Portfolio;
f. The preparation and distribution on behalf of the Portfolios of
notices of shareholders and Trustee meetings, agendas, proxies, and proxy
statements; and
g. Other facilities, services, and activities necessary for the
conduct of each Portfolio's business, except for services by each
Portfolio's Custodian, Registrar, Transfer Agent, Accounting Services
Agent, Dividend Disbursing Agent, Auditors, and Legal Counsel.
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III
ALLOCATION OF EXPENSES
----------------------
The Adviser will pay each Portfolio's pro rata share of the cost and
expenses of the following services, facilities and activities: necessary office
space, equipment, supplies, utility services and all other ordinary office
expenses; the salaries and other compensation of each of the Trust's trustees,
officers or employees who is an affiliated person of the Adviser; organization
of the Portfolio and fees for supplementary advisory and research services
performed for the Adviser. Each Portfolio shall pay all other expenses incurred
in the operation of each Portfolio and the continuous offering of interests in
each Portfolio, including, but not limited to, the following:
a. The regular fees or special charges of any Custodian, Transfer Agent,
Registrar, Accounting Services Agent or Dividend Disbursing Agent allocable to
each Portfolio.
b. Each Portfolio's pro rata share of the compensation or fees of each
Portfolio's auditors and legal counsel, and compensation and costs relating to
legal or administrative proceedings or to litigation.
c. Income, franchise, stock transfer and other taxes attributable to each
Portfolio.
d. Initial or renewal fees payable to governmental agencies in connection
with the filing of reports, notices, registration statements and other material
required to be filed in connection with the Portfolio's business, except for
such fees paid in connection with the organization of the Portfolio.
e. Each Portfolio's pro rata share of any insurance or bond premiums.
f. Each Portfolio's pro rata share of association dues or assessments.
g. Brokerage fees or commissions on all Portfolio transactions.
h. Each Portfolio's pro rata share of interest on borrowed funds or
otherwise.
i. Any extraordinary expenses attributable directly to the Portfolio.
IV
COMPENSATION
------------
Each Portfolio shall pay the Adviser a fee, based on the value of the net
assets of each Portfolio determined in accordance with the Trust's Declaration
of Trust, and computed as follows:
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(a) The annual advisory fee (the "Fee") shall be equal to 1.00% of
each Portfolio's average daily net assets.
(b) The Fee due the Adviser as set forth above will be accrued daily
and shall be paid to the Adviser in pro rata monthly installments due and
payable on the first business day of each calendar month.
(c) The Adviser may voluntarily waive all or part of its Fee or
reimburse the Portfolio's expenses, at any time, and at its sole
discretion, but such action shall not obligate the Adviser to waive any
Fees or reimburse each Portfolio's expenses in the future. Such voluntary
waiver or reimbursement may be made by the Adviser, from time to time, in
the Adviser's sole discretion, to limit a Portfolio's total annual
portfolio operating expenses to a specific percentage of the average daily
net assets of the Portfolio (the "Operating Expense Limit"). In such case,
the Operating Expense Limit of the Portfolio, voluntarily established by
the Adviser, shall be calculated after the expenses of the Portfolio
(exclusive of brokerage fees and commissions, taxes, interest and
extraordinary or non-recurring expenses) have been reduced by an amount
equal to the sum of Rule 12b-1 fees, shareholder servicing fees and other
distribution, administrative or service fees received by the Portfolio (or
its agent) from any underlying funds in which the Portfolio invests. The
Adviser may terminate its agreement to so waive or reimburse at any time.
V
DURATION AND TERMINATION
------------------------
(1) This Agreement shall have an initial term of two years beginning on
the date first written above. Thereafter this Agreement shall continue in effect
from year to year, subject to the termination provisions and all other terms and
conditions hereof, if: (a) such continuation shall be specifically approved at
least annually by vote of the holders of a majority of the outstanding voting
securities of the Portfolios or by the vote, cast in person at a meeting called
for the purpose of voting on such approval, the Trustees and, in addition, is
approved by the vote of a majority of the Trustees of the Trust who are not
parties to this Agreement or interested persons of any such party; and (b) the
Adviser shall not have notified the Portfolios, in writing, at least 60 days
prior to the expiration of any term, that it does not desire such continuation.
The Adviser shall furnish to the Trust, promptly upon its request, such
information as may reasonably be necessary to evaluate the terms of this
Agreement or any extension, renewal or amendment hereof.
(2) This Agreement may not be amended, transferred, sold or in any manner
hypothecated or pledged, without the affirmative vote of a majority of the
outstanding voting securities of a Portfolio, and this Agreement shall
automatically and immediately terminate in the event of its assignment.
(3) This Agreement may be terminated by either party hereto, without the
payment of any penalty, upon 60 days' notice in writing to the other party,
provided, that in the case of termination by the Trust such action shall have
been authorized by resolution of the Trustees of the Trust or by vote of a
majority of the outstanding voting securities of a Portfolio.
VI
MISCELLANEOUS
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(1) The Adviser shall not deal with the Portfolios as broker or dealer but
the Adviser may enter orders for the purchase or sale of each Portfolio's
securities through a company or companies that are under common control with the
Adviser, provided such company acts as broker and charges a commission that does
not exceed the usual and customary broker's
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commission if the sale is effected on a securities exchange, or, one percent of
the purchase or sale price of such securities if the sale is otherwise effected.
In connection with the purchase or sale of portfolio securities for the account
of each Portfolio, neither the Adviser nor any officer or director of the
Adviser shall act as a principal.
(2) Except as expressly prohibited in this Agreement, nothing herein shall
in any way limit or restrict the Adviser, or any officers, shareholders or
employees of Adviser, from buying selling or trading in any security for its or
their own account. Neither the Adviser nor any Officer or Director thereof shall
take a short position in any interests of any Portfolio or otherwise purchase
such interests for any purpose other than that of investment. However, the
Adviser may act as underwriter or distributor provided it is properly registered
or licensed to so act and provided it does so pursuant to a written contract
approved in the manner specified in the 1940 Act.
(3) The Adviser may act as investment adviser to, and provide management
services for, other investment companies, and may engage in businesses that are
unrelated to investment companies, without limitation, provided the performance
of such services and the transaction of such businesses do not impair the
Adviser's performance of this Agreement.
(4) The Adviser shall not be liable for any error of judgment or mistake
of law or for any loss suffered by any Portfolio in connection with the matters
to which this Agreement relates (including, but not limited to, loss sustained
by reason of the adoption or implementation of any investment policy or the
purchase, sale or retention of any security), except for loss resulting from
willful misfeasance, bad faith or negligence of the Adviser in the performance
of its duties or from reckless disregard by the Adviser of its obligations and
duties under this Agreement.
(5) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the 1940 Act, shall be resolved by reference to such term or provision of the
Act and to interpretations thereof, if any, by the United States courts or, in
the absence of any controlling decision of any such court, by rules, regulations
or orders of the Securities and Exchange Commission validly issued pursuant to
said Act. Specifically, the terms "vote by a majority of the outstanding voting
securities", "annually", "interested person", "assignment", and "affiliated
person", as used herein, shall have the meanings assigned to them by the 1940
Act. In addition, where the effect of a requirement of the 1940 Act, reflected
in any provision of this contract is relaxed by a rule, regulation or order of
the Securities and Exchange Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
(6) The Trust will provide the Adviser with all information concerning the
investment policies and restrictions of the Portfolios as the Adviser may from
time to time request or which the Trust deems necessary. In the event of any
change in the investment policies or restrictions of the Portfolios, the Trust
will promptly provide Adviser with all information concerning such change
including, but not limited to, copies of all documents filed by the Trust with
the Securities and Exchange Commission.
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(7) The Trustees, officers, employees and agents of the Trust shall not be
personally bound by or liable hereunder, nor shall resort be had to their
private property for the satisfaction of any obligation or claim hereunder.
(8) Except to the extent the provisions of this Agreement are governed by
federal law, they shall be governed by the law of Ohio, without reference to its
choice of law rules.
(9) This Agreement represents the entire agreement between the parties
hereto and may be amended or modified by the parties in any manner by written
agreement executed by each of the parties hereto
(10) Any notice or other communication required by or permitted to be given
in connection with this Agreement shall be in writing, and shall be delivered in
person or sent by certified mail, postage prepaid, return receipt requested, to
the respective parties as follows:
If to the Trust:
----------------
Meeder Premier Portfolios
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: President
If to the Adviser:
------------------
Xxxxxx Asset Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: President
Any such notice shall be deemed to have been given upon receipt.
(11) This Agreement may be executed in two or more counterparts, each of
which shall be considered an original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers thereunto duly authorized as of the day
and year first above written.
MEEDER PREMIER PORTFOLIOS
Attest: By:
--------------------- ---------------------
Secretary
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XXXXXX ASSET MANAGEMENT, INC.
Attest: By:
--------------------- ---------------------
Secretary
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SCHEDULE A
DEFENSIVE EQUITY PORTFOLIO
GROWTH PORTFOLIO
FIXED INCOME PORTFOLIO
AGGRESSIVE GROWTH PORTFOLIO
