EXHIBIT 2.2
AMENDMENT NO. 1 TO AGREEMENT
This Amendment to the Agreement dated March 24th, 2008, by and between
Ibbotson Associates, Inc. ("Ibbotson"), an Illinois corporation, and Xxx Xxxxxx
Funds Inc. ("Xxx Xxxxxx"), a Delaware corporation (the "Agreement"), is made as
of this __th day of November, 2010, by and between Ibbotson and Xxx Xxxxxx (the
"Amendment"). Capitalized terms not defined herein shall have the same meanings
assigned to them in the Agreement.
WITNESSETH:
WHEREAS, the Agreement (a) grants a license to Xxx Xxxxxx and the Trusts to
use the Ibbotson Property in connection with the Trusts, (b) provides that
Ibbotson will provide certain services in advising and consulting with Xxx
Xxxxxx with respect to securities selection in accordance with certain criteria
specified in the Agreement and Ibbotson's investment concerns and strategies and
(c) provides that Ibbotson will act as Supervisor, as defined by the trust
indenture governing a particular trust, in connection with the Trusts; and
WHEREAS, Ibbotson and Xxx Xxxxxx desire to amend the Agreement as provided
herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Except as expressly set forth in this Amendment, this Amendment shall not
constitute an amendment or modification of any other provision of the Agreement.
2. Fees. Section 5 of the Agreement shall be replaced in its entirety with
the following:
"Fees. (a) For the license granted pursuant to Section 1, Xxx Xxxxxx, on
behalf of each of the Trusts, agrees that each Trust shall pay Ibbotson an
annual fee equal to ten basis points (0.10%) of the average daily Evaluation
Price of such Trust (the "License Fees"). The trustee of each Trust shall accrue
such fee daily and pay such fee to Ibbotson in installments within fifteen (15)
days following the end of each calendar quarter during the term of such Trust.
"Evaluation Price" shall mean the "current net asset value" as defined in the
Investment Company Act of 1940, as amended.
(b) For the services to be performed pursuant to Section 2, Xxx Xxxxxx, on
behalf of each Trust, agrees that each Trust shall pay Ibbotson a fee equal to
five basis points (0.05%) of the Evaluation Price of such Trust ("Consulting
Fees") as of the end of the initial offering period of such Trust. Such fee
shall be paid by the trustee of each Trust to Ibbotson within thirty (30) days
following the end of the initial offering period of each Trust.
(c) For the services to be performed pursuant to Section 3, Xxx Xxxxxx, on
behalf of each Trust, agrees that each Trust shall pay Ibbotson ("Supervisory
Fees") in accordance with the terms of the trust agreement governing such Trust.
(d) Xxx Xxxxxx shall make an advance payment to Ibbotson on the Effective
Date (March 24, 2008) in the amount of $75,000 for the first year of this
Agreement and shall make an advance payment in the amount of $125,000 on the
anniversary of the Effective Date for each additional year for the term of this
Agreement (each an "Advance Payment" and collectively, the "Advance Payments"),
which shall be applied against future License Fees, Consulting Fees and
Supervisory Fees payable under this Section 5 for the year in which such Advance
Payment is made until such fees total such amount; provided, however, that no
Advance Payment will be required in the event that Xxx Xxxxxx provides Ibbotson
with written notification at least thirty (30) days prior to an Effective Date
anniversary that no Trust is scheduled to deposit following such Effective Date
anniversary. Thereafter, the License Fees payable under subsection (a) above
shall be paid within thirty (30) days following the close of each calendar
quarter in which such fees are incurred, and any Consulting Fees or Supervisory
Fees payable hereunder shall be paid in accordance with subsections (b) and (c)
above, respectively."
3. Exhibit. "Exhibit A" of the Agreement shall be replaced in its entirety
with the following:
"With respect to any series of the Alternatives Allocation Portfolio, the
securities selection criteria shall be as follows:
"Ibbotson will select securities considered to have low correlation to U.S.
equity and bond markets which may include exchange-traded funds, exchange-traded
notes and investment companies registered under the Investment Company Act of
1940 or other similar securities. The securities will be designed to take
advantage of the potential benefits of investing in a variety of investment
vehicles across "non-traditional" asset classes."
With respect to any series of the Long/Short Strategy Portfolio, the
securities selection criteria shall be as follows:
"Ibbotson will select a portfolio of open-end funds that employ a
"Long/Short" investment strategy. Ibbotson will first examine the funds included
in the Morningstar Long/Short Category. From within this universe, Ibbotson will
consider funds for selection which generally implement some variation of a
Long/Short strategy, including Equity Market Neutral, Fixed Income and
Convertible Arbitrage, Merger Arbitrage, or Multi-Strategy/Absolute Return." "
4. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
5. Counterparts. This Amendment may be executed 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, each of the parties hereto have caused this Amendment to
be executed by a duly authorized representative thereof as of the date first
above written.
XXX XXXXXX FUNDS INC.
By:
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Name:
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Title:
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IBBOTSON ASSOCIATES, INC.
By:
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Name:
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Title:
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