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EXHIBIT 5
MANAGEMENT AGREEMENT
XXXXX SERIES TRUST
MANAGEMENT AGREEMENT
September 1, 1989 as restated and amended
through November 1, 1997
XXXXX/XXXXXX ADVISERS
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Gentlemen:
The undersigned, Xxxxx Series Trust, a Delaware business trust (the
"Trust"), is an investment company registered under the Investment Company Act
of 1940, as amended (the "1940 Act"). The Trust currently offers shares of seven
series, the Xxxxx Strategy Fund, Xxxxx Appreciation Fund, Xxxxx Growth & Income
Fund, Xxxxx Managed Assets, Xxxxx Government Fund, Xxxxx Foreign Equity Fund and
Xxxxx Cash Fund. Each series issues four classes of shares, currently designated
as Class A, Class B, Class C and Class I shares (the "Class A, Class B, Class C
and Class I shares"), and Xxxxx Cash Fund also issues a class of shares
designated as Class M Shares. In the future, the Trust may authorize and issue
other series and other classes of shares.
Each series of the Trust invests and reinvests its assets in a
portfolio of securities and investments. The Trust hereby engages you to act as
its investment manager for shares of each class of each series of the Trust
authorized now or in the future subject to the terms and conditions herein set
forth.
SECTION 1. Investment Management Services.
You shall use your staff and other facilities to conduct and maintain a
continuous review of each series' portfolio of securities and investments, and
shall advise and assist each series of the Trust with respect to the selection,
acquisition, holding and disposal of securities. In so doing, you shall be
guided by the investment objectives and policies of each series as delineated
and limited by the statements contained in documents filed with the SEC, as
amended from time to time, by policies adopted by the Board of Trustees of the
Trust (the "Board") and by the provisions of the 1940 Act and the rules
promulgated thereunder, so that at all times the Trust shall be in compliance
with its policies and the provisions of the 1940 Act. The Trust agrees to supply
you with copies of all such documents and to notify you of any changes in its
investment objectives, policies and restrictions.
In rendering such investment management services to the Trust pursuant
to this Agreement, you may employ, retain or otherwise avail yourself of the
services or facilities of other persons or organizations, for the purpose of
providing you or the Trust with such statistical and other factual information,
such advice regarding economic factors and trends, such advice as to occasional
transactions in specific securities or such other information, advice or
assistance as you may deem necessary, appropriate or convenient for the
discharge of your obligations hereunder or otherwise helpful to the Trust or in
the discharge of
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your overall responsibilities with respect to the other
accounts which you or your affiliates serve as investment manager.
You and any person performing executive, administrative or trading
functions for the Trust, whose services were made available to the Trust by you,
are specifically authorized to allocate brokerage and principal business to
firms that provide such services or facilities or to cause the Trust to pay a
member of a securities exchange or any other securities broker or dealer an
amount of commission for effecting a securities transaction in excess of the
amount of commission another member of an exchange, broker or dealer would have
charged for effecting that transaction, if you or such person determine in good
faith that such amount of commission is reasonable in relation to the value of
the brokerage and research services (as such services are defined in Section
28(e) of the Securities Exchange Act of 1934, as amended (the "1934 Act"))
provided by such member, broker or dealer, viewed in terms of either that
particular transaction or your or such person's over-all responsibilities with
respect to the accounts as to which you or such person exercise investment
discretion (as that term is defined in Section 3(a)(35) of the 1934 Act).
In acting under this Agreement, you shall be an independent contractor
and shall not be an agent of the Trust.
SECTION 2. Resumes and Reports, etc.
You shall maintain a continuous record of all the investments and
securities which comprise the portfolios of each series of the Trust and shall
furnish to the Board, at its regularly scheduled meetings and at such other
times as the Board may reasonably request, a resume of the portfolios and report
on all matters pertaining to your services as investment manager. In addition,
you shall furnish the Trust with such statistical information reasonably
available to you as the Board shall reasonably request.
SECTION 3. Additional Services to be Furnished.
You shall keep the books and financial records of the Trust and shall
perform such other services as are reasonably incidental to the foregoing
duties. You shall assist in the computation of the net asset value of the shares
of each series of the Trust (in accordance with the Amended and Restated
Agreement and Declaration of Trust and the Trust's Prospectuses and Statements
of Additional Information, each as amended from time to time, and the
instructions of the Board pursuant thereto), and shall furnish to the Trust and
its distributor any statements with respect to the net asset value of the shares
of each series of the Trust and the net asset value per share of each series of
the Trust, at such times, and in such forms, as the Trust may prescribe. You
shall also furnish the Trust with office space reasonably suited to its
operations and with bookkeeping, internal accounting and administrative
services, and shall permit such of your directors, officers and employees as may
be elected as directors or officers of the Trust to serve in the capacities to
which they are elected.
All services to be furnished by you under this Agreement may be
furnished through your, or your affiliates', directors, officers or employees.
However, the investment policies, the administration of its business and affairs
and all other acts of the Trust are and shall at all times be subject to the
approval and direction of the Board.
SECTION 4. Multiple Capacities.
Nothing contained in this Agreement shall be deemed to prohibit you
from acting, and being separately compensated for acting, in one or more
capacities on behalf of the Trust, including, but not limited to, the capacities
of broker or distributor. The Trust understands that you and your affiliates may
act as investment manager or in other capacities as aforesaid on behalf of other
investment companies and customers. While
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information and recommendations you supply to the Trust shall in your judgment
be appropriate under the circumstances and in light of the investment objectives
and policies of the Trust, they may be different from the information and
recommendations you supply to other investment companies and customers. You
shall give the Trust equitable treatment under the circumstances in supplying
information, recommendations and any other services requested of you, but you
shall not be required to give preferential treatment to the Trust as compared
with the treatment given to any other investment company or customer. Whenever
you shall act in multiple capacities on behalf of the Trust, you shall maintain
the appropriate separate accounts and records for each such capacity. All
information and advice supplied by you to the Trust hereunder shall be for its
own use exclusively.
SECTION 5. Payment of Expenses.
You shall assume and pay all of your own costs and expenses under this
Agreement. The Trust shall assume and pay, or reimburse you for, all expenses
incurred in the operation of the Trust (to the extent not specifically allocated
to you hereunder) and, in particular but without limitation, the Trust shall
bear the cost of and pay all interest, taxes, fees and commissions of every
kind, expenses of issue, repurchase or redemption of shares, expenses of
registering or qualifying shares for sale, insurance, association membership
dues, all charges of custodians (including fees as custodian, escrow agent, for
keeping books and performing portfolio valuations) , transfer agents,
registrars, dividend disbursing agents, independent auditors and legal counsel,
expenses of preparing, printing and distributing prospectuses and all proxy
materials, reports and notices to shareholders, expenses of distribution of
shares in accordance with a plan adopted pursuant to Rule 12b-1 under the 1940
Act, out-of-pocket expenses of trustees and fees of trustees who are not
"interested persons", and all other costs incident to the Trust's existence. The
preceding sentence shall govern the allocation of expenses between the parties
in all respects.
SECTION 6. Compensation for Services
The Trust will pay to you, with respect to the Class A, Class B, Class
C and Class I shares of each series, a monthly management fee based on the daily
average net asset value of each class of the series of the Trust at the
following annual rates:
Xxxxx Strategy Fund .75%
Xxxxx Appreciation Fund 1.00%
Xxxxx Growth & Income Fund .75%
Xxxxx Managed Assets 1.00%
Xxxxx Government Fund .60%
Xxxxx Foreign Equity Fund 1.00%
Xxxxx Cash Fund .50%
The net asset value on each such day shall be the net asset value used in
determining the price at which shares of a series of the Trust are sold,
repurchased or redeemed on such day.
Notwithstanding the foregoing, nothing shall preclude you or your
affiliates from executing brokerage transactions for the Trust, charging the
Trust brokerage commissions therefor and deriving profit therefrom, provided
such payments to you by the Trust are reviewed at each annual continuation
hereof required by the 1940 Act and Section 9 below.
SECTION 7. Liability of the Investment Manager, etc.
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You shall be liable for your own acts and omissions caused by your
willful misfeasance, bad faith or gross negligence in the performance of your
duties or by your reckless disregard of your obligations under this Agreement,
and nothing herein shall protect you against any such liability to the Trust or
its security holders. You shall not be liable for the acts and omissions of any
agent employed by you, nor for those of any bank, trust company, broker or other
person with whom, or into whose hands, any monies, shares of the Trust or
securities and investments may be deposited or come, pursuant to the provisions
of this Agreement. You shall not be liable for any defect in title of any
property acquired, nor for any loss unless it shall occur through your own
willful default. Subject to the first sentence of this section, you shall not be
liable for any action taken or omitted on advice, obtained in good faith, of
counsel, provided such counsel is satisfactory to the Trust.
SECTION 8. Termination of Agreement, Assignment, etc.
This Agreement may be terminated at any time, without the payment of
any penalty, upon sixty (60) days' written notice by the terminating party to
the other party, by you or by the Trust, acting pursuant to a resolution adopted
by its Board, or by a vote of the holders of the lesser of (1) 67% of the
Trust's voting shares present if the holders of more than 50% of the outstanding
shares are present in person or in proxy, or (2) more than 50% of the
outstanding shares of the Trust.
This Agreement shall automatically terminate in the event of its
assignment. Termination shall not affect rights of the parties which have
accrued prior thereto.
SECTION 9. Duration of Agreement.
Unless sooner terminated, this Agreement shall continue in effect for
two years, and thereafter until terminated, provided that the continuation of
this Agreement and the terms thereof are specifically approved annually in
accordance with the requirements of the 1940 Act by a majority of the Trustees,
including a majority of the Trustees who are not "interested persons" of you or
of the Trust, cast in person at a meeting called for the purpose of voting on
such approval.
SECTION 10. Definition.
The terms "assignment" and "interested person" when used in this
Agreement shall have the meanings given such terms in the 1940 Act and the rules
and regulations thereunder.
SECTION 11. Obligation of the Trust.
The Trust's Amended and Restated Agreement and Declaration of Trust, as
amended, is on file with the Secretary of the State of Delaware and notice is
hereby given that this Agreement is made and executed on behalf of the Trust,
and not by the Trustees or officers of the Trust individually, and the
obligations of or arising out of this Agreement are not binding upon the
Trustees, officers or shareholders of the Trust individually but are binding
only upon the assets and property of the Trust.
SECTION 12. Concerning Applicable Provisions of Law, etc.
This Agreement shall be subject to all applicable provisions of law,
including, without limitation, the applicable provisions of the 1940 Act, and to
the extent that any provisions herein contained conflict with any such
applicable provisions of law, the latter shall control.
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SECTION 13. Change in the Partnership.
You shall notify the Trust in writing of any change in the membership
of partners of the Xxxxx/Xxxxxx Advisers general partnership within fifteen (15)
days after such change.
SECTION 14. Counterparts.
This Agreement may be executed by any one or more of the parties in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
SECTION 15. Effective Date.
This Agreement is effective upon such date on or after its initial
approval in accordance with the 1940 Act as may be agreed by the parties hereto
consistent with the 1940 Act.
Very truly yours,
XXXXX SERIES TRUST
By:
Name:
Title:
Attest:
Accepted and agreed to this
_______ day of ______________, 1997
XXXXX/XXXXXX ADVISERS
By:
Name:
Title:
Attest:
By:
Name:
Title:
Attest:
