MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT ("Agreement") is made this
____ day of August, 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 a Maryland business trust
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
objective, 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 objective, 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 the 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 Fund 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 the 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 that
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 the
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 the 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 the 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.
(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; organizational 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 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 the 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 other
fund, firm, individual or association. If the purchase or
sale of securities consistent with the investment policies
of the 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 August __, 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]
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:
Title:
XXXX XXXXX PARTNERS
FUND ADVISOR, LLC
By:
_______________________
______________________
Name:
Title:
Schedule A
Xxxx Xxxxx Partners Target Retirement 2040
Date:
August __, 2008
Fee:
0.10% of the Fund's average daily net assets
1521561.1
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