EXHIBIT (d)
INVESTMENT MANAGEMENT AGREEMENT
THIS INVESTMENT MANAGEMENT AGREEMENT is made as of June __, 2002,
between THE XXXXXXX/XXXXXX INVESTMENT GROUP, a Delaware business trust (herein
called the "Trust"), and XXXXXXX-XXXXXX, LLC, a Delaware limited liability
company ("M/P").
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as-amended (the
"1940 Act"); and
WHEREAS, the Trust desires to retain M/P to furnish investment
advisory services to the Trust and M/P is willing to so furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. Appointment. The Trust hereby appoints M/P to act as
investment adviser to each series of shares of beneficial interest of the Trust
identified on Exhibit A hereto, as such Exhibit may from time to time be amended
by the parties (each a "Fund"), for the period and on the terms set forth in
this Agreement. M/P accepts such appointment and agrees to furnish the services
herein set forth for the compensation herein provided.
2. Management. Subject to the supervision of the Trust's Board of
Trustees, M/P shall provide a continuous investment program for each Fund,
including, investment research and management with respect to all securities and
investments and cash equivalents in such Fund.
(a) M/P shall determine from time to time what securities
and other investments will be purchased, retained or sold by the Trust with
respect to each Fund. M/P shall comply with the investment objectives, policies
and restrictions as stated in the Trust's Registration Statement with respect to
each Fund, as from time to time amended, and resolutions of the Trust's Board of
Trustees. M/P shall comply with the 1940 Act, the Securities Act of 1933 and all
applicable Rules and Regulations of the Securities and Exchange Commission, and
shall conduct its activities pursuant to this Agreement in accordance with all
other applicable laws and regulations.
(b) On occasions when M/P deems the purchase or sale of a
security to be in the best interest of a Fund as well as other clients of M/P,
then M/P, to the extent permitted by applicable laws and regulations, may (but
shall be under no obligation to) aggregate the securities to be sold or
purchased in order to obtain the most favorable price or lower brokerage
commissions and efficient execution. In such event, allocation of the securities
so purchased or sold, as well as the expenses incurred in the transaction, shall
be made by M/P in the manner it considers to be the most equitable and
consistent with its fiduciary obligations to the Fund and to such other clients.
(c) M/P shall authorize and permit any of its directors, officers
and employees who may be elected as trustees or officers of the Trust to serve
in the capacities in which they are elected.
3. Services Not Exclusive. M/P shall for all purposes herein be deemed
to be an independent contractor and shall, unless otherwise expressly provided
herein or authorized by the Board of Trustees from time to time, have no
authority to act for or represent the Trust in any way or otherwise be deemed
its agent. The investment management services furnished by M/P hereunder are not
deemed exclusive, and M/P shall be free to furnish similar services to others so
long as its services under this Agreement are not impaired thereby.
4. Reports, Books and Records. M/P shall render to the Board of Trustees
of the Trust such periodic and other reports as the Board may from time to time
reasonably request. In compliance with the requirements of Rule 31a-3 under the
1940 Act, M/P hereby agrees that all records which it maintains for the Trust
are the property of the Trust. M/P shall surrender promptly to the Trust any of
such records upon the Trust's request, and shall preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act.
5. Expenses.
(a) During the term of this Agreement, M/P shall pay the
following expenses: (i) the salaries and expenses of all personnel of the Trust
and all personnel of M/P who perform services for the Trust, except the fees and
expenses of trustees who are not affiliated persons of M/P and (ii) all expenses
incurred by M/P or by the Funds in
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connection with managing the ordinary course of the Funds' business other than
those to be paid by the Funds as set forth herein.
(b) During the term of this Agreement, the Trust shall pay the
following expenses: (i) the fees and expenses incurred by each Fund in
connection with the management of the investment and reinvestment of the Fund's
assets; (ii) the fees and expenses of trustees who are not affiliated persons of
M/P; (iii) the fees and expenses of the Trust's Custodian, Transfer Agent, Fund
Accounting Agent and Administrator; (iv) the charges and expenses of legal
counsel and independent accountants for the Trust; (v) brokers' commissions and
any issue or transfer taxes chargeable to the Fund in connection with its
securities and futures transactions; (vi) all taxes and corporate fees payable
by a Fund to federal, state or other governmental agencies; (vii) the fees of
any trade associations of which the Trust may be a member; (viii) the cost of
fidelity, trustees and officers and errors and omission insurance; (ix) the fees
and expenses involved in registering and maintaining registration of each Fund
and of its shares with the SEC, registering the Trust as a broker or dealer and
qualifying shares of each Fund under state securities laws, including the
preparation and printing of the Trust's registration statements, prospectuses
and statements of additional information for filing under federal and state
securities laws for such purposes; (x) allocable communications expenses with
respect to investor services and all expenses of shareholders' and trustees'
meetings and of preparing, printing and mailing reports to shareholders in the
amount necessary for distribution to the shareholders; (xi) litigation and
indemnification expenses and other extraordinary expenses not incurred in the
ordinary course of the Trust's business, and (xii) any expenses assumed by the
Trust pursuant to a plan of distribution adopted in conformity with Rule 12b-1
under the 1940 Act.
6. Compensation. For the services provided by M/P pursuant to this
Agreement, the Trust shall pay M/P a fee, computed daily and paid monthly (in
arrears), at the annual rate set forth in Exhibit A.
(a) If in any fiscal year the aggregate operating expenses of any
Fund (as hereafter defined) exceed the applicable percentage of the average
daily net assets of the Fund set forth in Exhibit A for such fiscal year, M/P
shall reimburse such Fund for such excess operating expenses. Such operating
expense reimbursement, if any,
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shall be estimated, reconciled and paid on a monthly basis. Any such
reimbursement of a Fund shall be repaid to M/P by such Fund, without interest,
at such later time or times as it may be repaid without causing the aggregate
operating expenses of such Fund to exceed the applicable percentage of the
average daily net assets of the Fund for the period in which it is repaid;
provided, however, that upon termination of this Agreement with respect to any
Fund, such Fund shall have no further obligation to repay any such
reimbursements. As used in this paragraph, the term "operating expenses" of a
Fund for a fiscal year shall mean all expenses of the Fund for such year other
than interest, taxes, brokerage commissions (including related SEC fees),
blue-sky fees, 12b-1 plan fees and extraordinary expenses.
(b) In addition, if in any fiscal year the aggregate
expenses of any Fund (as defined under the securities regulations of any state
having jurisdiction over such Fund) exceed the expense limitations of any such
state, M/P shall reimburse the Fund for such excess expenses to the extent not
previously reimbursed pursuant to paragraph (a) of this Section 6. The
obligation of M/P to reimburse any Fund hereunder is limited in any fiscal year
to the amount of its fee hereunder for such fiscal year with respect to such
Fund. Such expense reimbursement, if any, shall be estimated, reconciled and
paid on a monthly basis.
7. Limitation of Liability. M/P 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 performance of this Agreement, except a loss resulting from
a breach of M/P's fiduciary duty with respect to the receipt of compensation for
services (in which event any award of damages shall be limited to the period and
amount set forth in Section 36(b)(3) of the 0000 Xxx) or loss resulting from
M/P's willful misfeasance, bad faith or gross negligence in the performance of
its duties or from reckless disregard by M/P of its obligations and duties under
this Agreement.
The Trust shall indemnify M/P and hold it harmless from and
against all damages, liabilities, costs and expenses (including reasonable
attorneys' fees and amounts reasonably paid in settlement) incurred by M/P in or
by reason of any pending, threatened or completed action, suit, investigation or
other proceeding (including an action or suit by or in the right of a Fund or
its security holders) arising out of or otherwise based upon any action actually
or allegedly taken or omitted to be taken by M/P in connection with the
performance of any of its duties or
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obligations under this Agreement or otherwise as an investment adviser of the
Trust. Determination of whether and the extent to which the M/P is entitled to
indemnification hereunder shall be made by (a) a final decision on the merits by
a court or to her body before whom the action, suit or other proceeding was
brought that M/P was or was not liable by reason of willful misfeasance, bad
faith, gross negligence, reckless disregard of its duties or breach of its
fiduciary duty or (b) in the absence of such a decision, a reasonable
determination, based upon a review of the facts, that M/P was or was not liable
by reason of such misconduct by (i) the vote of a majority of a quorum of the
Trustees of the Trust who are neither "interested persons" of the Trust (as
defined in Section 2(a)(19) of the 0000 Xxx) nor parties to the action, suit or
other proceeding or (ii) an independent legal counsel in a written opinion.
8. Duration and Termination. This Agreement shall become
effective with respect to the initial Fund on the date hereof, and with respect
to any additional Funds on the date of the amendment to Exhibit A adding such
Fund hereto, provided that this Agreement (as supplemented by the terms
specified in Exhibit A hereto with respect to such Fund) shall have been
approved by the shareholders of such Fund in accordance with the requirements of
the 1940 Act, and unless sooner terminated as provided herein, shall continue in
effect with respect to each Fund for an initial term of two years. Thereafter,
if not terminated, this Agreement shall continue in effect as to a particular
Fund for successive periods of twelve months each, provided such continuance is
specifically approved at least annually (a) by the vote of a majority of those
members of the Trust's Board of Trustees who are not interested persons of any
party to this Agreement, cast in person at a meeting called for the purpose of
voting on such approval, and (b) by the Trust's Board of Trustees or by vote of
a majority of the outstanding voting securities of such Fund.
Notwithstanding the foregoing, this Agreement may be terminated
as to any Fund at any time, without the payment of any penalty, by the Trust (by
vote of the Trust's Board of Trustees or by vote of a majority of the
outstanding voting securities of such Fund), or by M/P, on sixty days' written
notice. This Agreement shall immediately terminate in the event of its
assignment.
9. Representations and Warranties. M/P represents and warrants to
the Trust that M/P is registered as an investment adviser under the Investment
Advisers Act
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of 1940. The Trust represents and warrants to M/P that it is registered as an
open-end management investment company under the 1940 Act. Each party further
represents and warrants to the other that this Agreement has been duly
authorized by such party and constitutes the legal, valid and binding obligation
of such party in accordance with its terms.
10. Amendment of this Agreement. 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. No amendment of this
Agreement shall be effective as to a particular Fund until approved by vote of a
majority of the outstanding securities of such Fund; provided, however, that
this Agreement may be amended without the vote of the shareholders of any Fund
to supply any omission, to cure, correct or supplement any ambiguous, defective
or inconsistent provisions hereof, or it the parties deem such amendment
necessary to conform this Agreement to the requirements of applicable federal
laws or regulations (but neither the Trust nor M/P shall be liable for failing
to do so).
11. Obligations of the Trust. M/P acknowledges that the
Declaration of Trust dated __________, 2000 is on file with the Secretary of
State of the State of Delaware, and that the obligations of the Trust under this
Agreement are not binding on any officers, trustees or shareholders of the Trust
individually but are binding only upon the assets and properties of the various
Funds.
12. Notices. Notices of any kind to be given to M/P hereunder by
the Trust shall be in writing and shall be duly given if mailed or delivered to
M/P at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: President, or at such other address or to such individual as shall be
so specified by M/P to the Trust. Notices of any kind to be given to the Trust
hereunder by M/P shall be in writing and shall be duly given if mailed or
delivered to the Trust at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: President; or at such other address or to such
individual as shall be so specified by the Trust to M/P.
13. Miscellaneous. The captions in this Agreement are included
for convenience of reference only and
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in no way limit any of the provisions hereof or otherwise affect their
construction or effect. If any provision of this Agreement shall 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 upon
and shall inure to the benefit of the parties hereto and their respective
successors and shall be governed by Massachusetts law (without regard to
principles of conflicts of law); provided, however, that nothing herein shall be
construed in a manner inconsistent with the 1940 Act, the Investment Advisers
Act of 1940 or any rule or regulation of the Securities and Exchange Commission
thereunder. As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested persons" and "assignment" shall have the same
meaning as the meaning of such terms in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
XXXXXXX/XXXXXX INVESTMENT GROUP
By
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Title:
XXXXXXX-XXXXXX, LLC
By
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Title:
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