EXHIBIT 5(A)
MANAGEMENT CONTRACT
AGREEMENT dated this 3rd day of January, 1994 between Xxxxxx Xxxxxxxx
Investment Services Limited, a limited company incorporated in England and Wales
(the "Manager") and Xxxxxx Xxxxxxxx Investment Trust, a Delaware business trust
(the "Trust") on behalf of Xxxxxx Xxxxxxxx International Equity Fund, Xxxxxx
Xxxxxxxx Global Equity Fund, Xxxxxx Xxxxxxxx European Equity Fund, Xxxxxx
Xxxxxxxx Pacific Basin Equity Fund, Xxxxxx Xxxxxxxx International Small Cap
Equity Fund, Xxxxxx Xxxxxxxx Japanese Small Cap Equity Fund, Xxxxxx Xxxxxxxx
European Small Cap Equity Fund, Xxxxxx Xxxxxxxx Emerging Markets Equity Fund,
Xxxxxx Xxxxxxxx Global Fixed Income Fund, Xxxxxx Xxxxxxxx International Fixed
Income Fund and Xxxxxx Xxxxxxxx Emerging Markets Fixed Income Fund.
W I T N E S S E T H
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 has filed with the Securities and Exchange Commission (the "Commission) a
registration statement (the "Registration Statement") for the purpose of
registering its shares for public offering under the Securities Act of 1933, as
amended,
WHEREAS, the Trust currently issues eleven series of shares
representing interests in the following portfolios (individually, a "Portfolio"
and collectively, the "Portfolios":
Xxxxxx Xxxxxxxx International Equity Fund
Xxxxxx Xxxxxxxx Global Equity Fund
Xxxxxx Xxxxxxxx European Equity Fund
Xxxxxx Xxxxxxxx Pacific Basin Equity Fund
Xxxxxx Xxxxxxxx International Small Cap Equity Fund
Xxxxxx Xxxxxxxx Japanese Small Cap Equity Fund
Xxxxxx Xxxxxxxx European Small Cap Equity Fund
Xxxxxx Xxxxxxxx Emerging Markets Equity Fund
Xxxxxx Xxxxxxxx Global Fixed Income Fund
Xxxxxx Xxxxxxxx International Fixed Income Fund
Xxxxxx Xxxxxxxx Emerging Markets Fixed Income Fund
WHEREAS, the parties hereto deem it mutually advantageous that the
Manager should be engaged, subject to the supervision and direction of the
Trust's Board of Trustees and officers, to manage the Portfolios,
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Trust and the Manager do hereby agree as follows:
1. (a) The Manager will regularly provide each Portfolio with
investment research, advice and supervision and will furnish continuously an
investment program for each Portfolio consistent with the investment objectives
and policies of each Portfolio. The Manager will determine from time to time
what securities shall be purchased for each Portfolio, what securities shall be
held or sold by each Portfolio and what portion of each Portfolio's assets shall
be held uninvested as cash, subject always to the provisions of the Trust's
Agreement and Declaration of Trust, By-Laws and its registration statements
under the 1940 Act and under the Securities Act of 1933 covering the Trust's
shares, as filed with the Securities and Exchange Commission, and to the
investment objectives, policies and restrictions of each Portfolio, as each of
the same shall be from time to time in effect, and subject, further, to such
policies and instructions as the Board of Trustees of the Trust may from time to
time establish. To carry out such determinations, the Manager will exercise,
subject to the foregoing, full discretion and act for each Portfolio in the same
manner and with the same force and effect as the Trust itself might or could do
with respect to purchases, sales or other transactions, as well as with respect
to all other things necessary or incidental to the furtherance or conduct of
such purchases, sales or other transactions.
(b) The Manager will, to the extent reasonably required in the
conduct of the business of each Portfolio and upon the Trust's request, furnish
to each Portfolio research, statistical and advisory reports upon the
industries, businesses, corporations or securities as to which such requests
shall be made, whether or not a Portfolio shall at the time have any investment
in such industries, businesses, corporations or securities. The Manager will
use its best efforts in the preparation of such reports and will endeavor to
consult the persons and sources believed by it to have information available
with respect to such industries, businesses, corporations or entities.
(c) The Manager will maintain all books and records with respect to
each Portfolio's securities transactions required by subparagraphs (b)(5), (6),
(9) and (10) and paragraph (f) of Rule 31a-1 under the 1940 Act (other than
those records being maintained by any administrator, custodian or transfer
agent appointed by the Trust with respect to each Portfolio) and preserve such
records for the periods prescribed therefor by Rule 31a-2 of the 1940 Act. The
Manager will also provide to the Board of Trustees such periodic and special
reports as the Board may reasonably request.
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2. The Manager recognizes that the Trust may from time to time create
additional portfolios of the Trust, that this agreement relates only to the
management of the assets of the eleven existing Portfolios of the Trust, and
that the management of the assets of any additional portfolio of the Trust will
be subject to one or more separate investment management agreements.
3. (a) Except as otherwise provided herein, the Manager, at its own
expense, shall be responsible for furnishing its own office space, facilities,
equipment and personnel for managing the investments of each Portfolio, and
shall arrange, if desired by the Trust, for members of the Manager's
organization to serve as officers or agents of the Trust or any of the
Portfolios.
(b) The Manager shall pay directly or reimburse the Trust for: (i)
the compensation (if any) of the Trustees and officers of the Trust who are
affiliated with, or interested persons of, the Manager; and (ii) all expenses
not hereinafter specifically assumed by the Trust or the Portfolios where such
expenses are incurred by the Manager or by the Trust or the Portfolios in
connection with the management of the investment and reinvestment of the assets
of, the Portfolios.
(c) Each Portfolio shall assume and shall pay: (i) charges and
expenses, allocable to the Portfolio, for fund accounting, pricing and
appraisal services and related overhead, including, to the extent such services
are performed by personnel of the Manager or its affiliates, office space and
facilities and personnel compensation, training and benefits; (ii) the charges
and expenses of the Portfolio's auditors; (iii) the charges and expenses,
allocable to the Portfolio, of any administrator, custodian, transfer agent,
plan agent, dividend disbursing agent and registrar appointed by the Trust on
behalf of the Portfolio; (iv) brokers' commissions, and issue and transfer
taxes, allocable to the Portfolio, in connection with securities transactions
to which the Portfolio is a party; (v) insurance premiums, interest charges,
dues and fees for membership in trade associations and all taxes and corporate
fees payable by the Trust, on behalf of the Portfolio, to federal, state or
other governmental agencies; (vi) fees and expenses, allocable to the
Portfolio, involved in registering and maintaining registrations of the Trust
and/or its shares with the Commission, state or blue sky securities agencies
and foreign countries, including the preparation of Prospectuses and Statements
of Additional Information for filing with the Commission; (vii) all expenses,
allocable to the Portfolio, of shareholders' and Trustees' meetings and of
preparing, printing and distributing prospectuses, notices, proxy statements
and all reports to shareholders and to governmental agencies; (viii) charges
and expenses, allocable to the Portfolio, of legal counsel to the Trust and the
Trustees; (ix) distribution fees paid by the
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Portfolio in accordance with Rule 12b-1 promulgated by the Commission pursuant
to the 1940 Act; (x) compensation, allocable to the Portfolio, of those
Trustees of the Trust or the Portfolio who are not affiliated with or
interested persons of the Manager, the Trust or the Portfolio (other than as
Trustees); (xi) the cost, allocable to the Portfolio, of preparing and printing
share certificates; (xii) interest on borrowed money, if any; and (xii)
organizational expenses, allocable to the Portfolio, of the Trust or the
Portfolio.
4. It is understood that the Manager, on behalf of each Portfolio, may
employ one or more sub-investment advisers (each a "Subadviser") under written
agreements with each such Subadviser, provided that any such agreement is first
approved by the vote of a majority of the Trustees, including a majority of the
Trustees who are not "interested persons" (as the term "interested person" is
defined in the 0000 Xxx) of the Trust, the Manager or any such Subadviser, at a
meeting of Trustees called for the purpose of voting on such approval and by a
vote of a "majority of the outstanding voting securities" (as defined in the
0000 Xxx) of the affected Portfolio. The authorization given to the Manager in
Sections 1 and 7 hereof may be delegated by it under any such agreement to any
of the Subadvisers, provided that the Subadvisers shall be subject to the same
restrictions and limitations on the investments and brokerage discretion as the
Manager.
5. (a) The Trust, on behalf of each Portfolio, shall pay to the
Manager, as compensation for the Manager's services hereunder, a fee at an
annual rate of each Portfolio's average daily net assets as follows:
Annual Rate
-----------
Xxxxxx Xxxxxxxx International Equity Fund 0.70%
Xxxxxx Xxxxxxxx Global Equity Fund 0.70%
Xxxxxx Xxxxxxxx European Equity Fund 0.70%
Xxxxxx Xxxxxxxx Pacific Basin Equity Fund 0.70%
Xxxxxx Xxxxxxxx International Small Cap Equity Fund 1.00%
Xxxxxx Xxxxxxxx Japanese Small Cap Equity Fund 1.00%
Xxxxxx Xxxxxxxx European Small Cap Equity Fund 1.00%
Xxxxxx Xxxxxxxx Emerging Markets Equity Fund 1.25%
Xxxxxx Xxxxxxxx Global Fixed Income Fund 0.60%
Xxxxxx Xxxxxxxx International Fixed Income Fund 0.60%
Xxxxxx Xxxxxxxx Emerging Markets Fixed Income Fund 1.60%
The management fee payable hereunder shall be computed monthly and paid
monthly in arrears. In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a pro rata
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adjustment based on the number of days elapsed in the current month as a
percentage of the total number of days in such month.
(b) If the operating expenses of any Portfolio in any year exceed
the limits set by state securities laws or regulations in states in which
shares of such Portfolio are sold, the amount payable to the Manager under
subsection (a) above will be reduced (but not below $0), and the Manager shall
make other arrangements concerning expenses but, in each instance, only as and
to the extent required by such laws or regulation. If amounts have already been
advanced to the Manager under this Agreement, the Manager will return such
amounts to the Trust to the extent required by the preceding sentence.
(c) In addition to the foregoing, the Manager may from time to time
agree not to impose all or a portion of its fee otherwise payable hereunder (in
advance of the time such fee or a portion thereof would otherwise accrue)
and/or undertake to pay or reimburse the Trust for all or a portion of expenses
related to its operations not otherwise required to be borne or reimbursed by
the Manager. Any such fee reduction or undertaking may be discontinued or
modified by the Manager at any time.
6. The Manager will not be liable for any error of judgment or mistake
of law or for any loss sustained by reason of the adoption of any investment
policy or the purchase, sale, or retention of any security on the recommendation
of the Manager, whether or not such recommendation shall have been based upon
its own investigation and research or upon investigation and research made by
any other individual, firm or corporation, but nothing contained herein will be
construed to protect the Manager against any liability to the Trust, a Portfolio
or a Portfolio's shareholders 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 under this Agreement.
7. (a) Nothing in this Agreement will in any way limit or restrict the
Manager or any of its officers, directors, or employees from buying, selling or
trading in any securities for its or their own accounts or other accounts. The
Manager may act as an investment advisor to any other person, firm or
corporation, and may perform management and any other services for any other
person, association, corporation, firm or other entity pursuant to any contract
or otherwise, and take any action or do any thing in connection therewith or
related thereto; and no such performance of management or other services or
taking of any such action or doing of any such thing shall be in any manner
restricted or otherwise affected by any aspect of any relationship of the
Manager to or with the Trust or deemed to violate or give rise to
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any duty or obligation of the Manager to the Trust except as otherwise imposed
by law. The Trust recognizes that the Manager, in effecting transactions for
its various accounts, may not always be able to take or liquidate investment
positions in the same security at the same time and at the same price.
(b) In connection with purchases or sales of portfolio securities
for the account of each Portfolio, neither the Manager nor any of its
Directors, officers or employees will act as a principal or agent or receive
any commission except as permitted by the 1940 Act. The Manager shall arrange
for the placing of all orders for the purchase and sale of portfolio securities
for each Portfolio's account with brokers or dealers selected by the Manager.
In the selection of such brokers or dealers and the placing of such orders, the
Manager is directed at all times to seek for each Portfolio the most favorable
execution and net price available except as described herein. It is also
understood that it is desirable for each Portfolio that the Manager have access
to supplemental investment and market research and security and economic
analyses provided by brokers who may execute brokerage transactions at a higher
cost to a Portfolio than may result when allocating brokerage to other brokers
on the basis of seeking the most favorable price and efficient execution.
Therefore, the Manager is authorized to place orders for the purchase and sale
of securities for each Portfolio with such brokers, subject to review by the
Trust's Trustees from time to time with respect to the extent and continuation
of this practice. It is understood that the services provided by such brokers
may be useful to the Manager in connection with its or its affiliates services
to other clients.
(c) On occasions when the Manager deems the purchase or sale of a
security to be in the best interest of a Portfolio as well as other clients,
the Manager, to the extent permitted by applicable laws and regulations, may
aggregate the securities to be sold or purchased in order to obtain the best
execution and lower brokerage commissions, if any. In such event, allocation of
the securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Manager in the manner it considers to be the
most equitable and consistent with its fiduciary obligations to such Portfolio
and to such clients.
8. This Agreement shall become effective on the date hereof and shall
remain in force until December 31, 1995 and from year to year thereafter, with
respect to each Portfolio, but only so long as its continuance is approved
annually by a vote of the Trustees of the Trust voting in person, including a
majority of its Trustees who are not parties to this Agreement or interested
persons (as the term "interested persons" is defined in the 0000 Xxx) of any
such parties, at a meeting of Trustees called for the
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purpose of voting on such approval or by a vote of a "majority of the
outstanding voting securities" (as defined in the 0000 Xxx) of the affected
Portfolio, subject to the right of the Trust and the Manager to terminate this
contract as provided in Section 9 hereof.
9. Either party hereto may, without penalty, terminate this Agreement,
with respect to one or more Portfolios, by vote of its Board of Directors or its
Board of Trustees, as the case may be, or by vote of a "majority of its
outstanding voting securities" (as defined in the 0000 Xxx) of the affected
Portfolio and the giving of 60 days' written notice to the other party.
10. This Agreement shall automatically terminate in the event of its
assignment. For purposes of this Agreement, the term "assignment" shall have the
meaning given it by Section 2(a)(4) of the 1940 Act.
11. The Trust agrees that in the event that neither the Manager nor any
of its affiliates acts as an investment adviser to the Trust, the name of the
Trust, and of any portfolio thereof, will be changed to one that does not
contain the name "Xxxxxx Xxxxxxxx" or otherwise suggest an affiliation with the
Manager.
12. The Manager is an independent contractor and not an employee of the
Trust or the Portfolios for any purpose. If any occasion should arise in which
the Manager gives any advice to its clients concerning the shares of a
Portfolio, the Manager will act solely as investment counsel for such clients
and not in any way on behalf of the Trust or such Portfolio.
13. This Agreement states the entire agreement of the parties hereto,
and is intended to be the complete and exclusive statement of the terms hereof.
It may not be added to or changed orally, and may not be modified or rescinded
except by a writing signed by the parties hereto and in accordance with the 1940
Act, when applicable.
14. This Agreement and all performance hereunder shall be governed by
the laws of The State of New York, which apply to contracts made and to be
performed in The State of New York.
15. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms or provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
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16. The parties to this Agreement acknowledge and agree that all
liabilities arising hereunder, whether direct or indirect, and of any and every
nature whatsoever shall be satisfied solely out of the assets of the portfolio
affected thereby and that no Trustee, officer or holder of shares of beneficial
interest of the Trust shall be personally liable for any of the foregoing
liabilities. The Trust's Agreement and Declaration of Trust, as amended from
time to time, is in the physical possession of the Manager and describes in
detail the respective responsibilities and limitations on liability of the
Trustees, officers, and holders of shares of beneficial interest.
17. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers and their seal to be hereto affixed
as of the day and year first above written.
ATTEST: XXXXXX XXXXXXXX INVESTMENT TRUST
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------------- -----------------------------------
Xxxx Xxxxxx Xxxxx X. Xxxxxxx
Secretary President and Chief Executive
Officer
ATTEST: XXXXXX XXXXXXXX INVESTMENT
SERVICES LIMITED
/s/ L. B. Hacking By: /s/Xxxxxxx Xxxxxx/A.M. Xxxxxxxx
----------------------------------- -----------------------------------
Name: L. B. Hacking Name: Xxxxxxx Xxxxxx/Xxxx
Title: Compliance Officer Xxxxxxx Xxxxxxxx
Title: Managing Director/
Director
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AMENDMENT TO MANAGEMENT CONTRACT
DATED AS OF APRIL 25, 1994
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration, Xxxxxx Xxxxxxxx Investment Trust, a Delaware
business trust (the "Trust"), and Xxxxxx Xxxxxxxx Investment Services Limited
(the "Manager") agree to amend the Management Contract dated January 3, 1994
between the Trust and the Manager to reduce the annual rate of compensation
payable thereunder by the Trust, on behalf of Xxxxxx Xxxxxxxx Emerging Markets
Equity Fund (the "Fund"), to the Manager from 1.25% of the Fund's average daily
net assets to 1.00% of such net assets.
The Trust and the Manager agree that this amendment shall be effective as
of the date first set forth above.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
executed by their duly authorized officers as of the date first set forth above.
ATTEST: XXXXXX XXXXXXXX INVESTMENT TRUST
/s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
----------------------------------- -----------------------------------
Xxxx Xxxxxx Xxxxx X. Xxxxxxx
Secretary President and Chief Executive
Officer
ATTEST: XXXXXX XXXXXXXX INVESTMENT
SERVICES LIMITED
/s/ Xxxxxxx Xxxxxx By: /s/ L. B. Hacking
----------------------------------- -----------------------------------
Name: P. W. W. Disney Name: L. B. Hacking
Title: Managing Director Title: Compliance Officer
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AMENDMENT TO MANAGEMENT CONTRACT
DATED AS OF APRIL 1, 1995
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration, Xxxxxx Xxxxxxxx Investment Trust, a Delaware
business trust (the "Trust"), and Xxxxxx Xxxxxxxx Investment Services Limited
(the "Manager") agree to amend the Management Contract dated January 3, 1994, as
amended April 25, 1994, between the Trust and the Manager to reduce the annual
rate of compensation payable thereunder by the Trust, on behalf of each of
Xxxxxx Xxxxxxxx Global Fixed Income Fund and Xxxxxx Xxxxxxxx International Fixed
Income Fund (each a "Fund"), to the Manager from 0.60% of such Fund's average
daily net assets to 0.50% of such net assets.
The Trust and the Manager agree that this amendment shall be effective
as of the date first set forth above.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
executed by their duly authorized officers and their seals to be affixed hereto
as of the date first set forth above.
ATTEST: XXXXXX XXXXXXXX INVESTMENT TRUST
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxx
Title: Funds Compliance Officer Secretary
ATTEST: XXXXXX XXXXXXXX INVESTMENT
SERVICES LIMITED
/s/ A. M. Xxxxxxxx By: /s/ X. Xxxxxxx
----------------------------------- -----------------------------------
Name: A. M. Xxxxxxxx Name: X. Xxxxxxx
Title: Director Title: Chairman
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AMENDMENT TO MANAGEMENT CONTRACT
DATED AS OF SEPTEMBER 1, 1995
In consideration of the mutual promises hereinafter set forth and other
good and valuable consideration, Xxxxxx Xxxxxxxx Investment Trust, a Delaware
business trust (the "Trust"), and Xxxxxx Xxxxxxxx Investment Services Limited
(the "Manager") agree to amend the Management Contract dated January 3, 1994, as
amended April 25, 1994 and April 1, 1995, between the Trust and the Manager to
reduce the annual rate of compensation payable thereunder by the Trust, on
behalf of Xxxxxx Xxxxxxxx Emerging Markets Debt Fund (referred to in such
Contract by its previous name, "Xxxxxx Xxxxxxxx Emerging Markets Fixed Income
Fund") (the "Fund"), to the Manager from 1.60% of the Fund's average daily net
assets to 1.50% of such net assets.
The Trust and the Manager agree that this amendment shall be effective
as of the date first set forth above.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to
be executed by their duly authorized officers as of the date first set forth
above.
ATTEST: XXXXXX XXXXXXXX INVESTMENT TRUST
/s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxx
Title: Funds Compliance Officer Secretary
ATTEST: XXXXXX XXXXXXXX INVESTMENT
SERVICES LIMITED
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxx
Title: Director, MGIS Title:
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