Exhibit No. 4(b)
INVESTMENT MANAGEMENT AND
ADMINISTRATION CONTRACT
Contract made as of March 1, 2001, between XXXXXXXX XXXXXXXX SERIES
TRUST, a Massachusetts business trust ("Fund"), and XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC. ("Xxxxxxxx Xxxxxxxx"), a Delaware corporation registered as an
investment adviser under the Investment Advisers Act of 1940, as amended
("Advisers Act"), and as a broker-dealer under the Securities Exchange Act of
1934, as amended ("1934 Act");
WHEREAS the Fund is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, and
is authorized to offer for public sale distinct series of shares of beneficial
interest; and
WHEREAS the Fund desires and intends to have one or more investment
advisers ("Sub-Advisers") provide investment advisory and portfolio management
services with respect to the series of shares of beneficial interest of the Fund
designated as Balanced Portfolio, Global Equity Portfolio, Global Income
Portfolio, Growth Portfolio, Growth and Income Portfolio, High Grade Fixed
Income Portfolio, High Income Portfolio, Small Cap Portfolio and Strategic
Income Portfolio and each such other series as to which this Contract may apply
(each a "Series"); and
WHEREAS the Fund desires to retain Xxxxxxxx Xxxxxxxx as investment
manager and administrator to furnish certain administrative and portfolio
management services to the Fund with respect to the Series, and Xxxxxxxx
Xxxxxxxx is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Fund hereby appoints Xxxxxxxx Xxxxxxxx as
investment manager and administrator of the Fund and each Series for the period
and on the terms set forth in this Contract. Xxxxxxxx Xxxxxxxx accepts such
appointment and agrees to render the services herein set forth, for the
compensation herein provided.
2. DUTIES AS INVESTMENT MANAGER; APPOINTMENT OF SUB-ADVISERS.
(a) Subject to the oversight and direction of the Fund's Board of
Trustees ("Board"), Xxxxxxxx Xxxxxxxx will provide to the Fund investment
management evaluation services principally by performing initial reviews of
prospective Sub-Advisers for each Series and overseeing and monitoring
performance of the Sub-Advisers thereafter. Xxxxxxxx Xxxxxxxx agrees to report
to the Fund the results of its evaluation, oversight and monitoring functions
and to keep books and records of the Fund in connection therewith. Upon the
request of the Board, Xxxxxxxx Xxxxxxxx will provide portfolio management
services with respect to any portion of Series' assets for which no Sub-Adviser
is responsible. Xxxxxxxx Xxxxxxxx further agrees to communicate performance
expectations and evaluations to the Sub-Advisers, and to recommend to the Fund
whether agreements with Sub-Advisers should be renewed, modified or terminated.
(b) Xxxxxxxx Xxxxxxxx is responsible for informing the Sub-Advisers of
the investment objective(s), policies and restrictions of the Series for which
the Sub-Adviser is responsible, for informing or ascertaining that it is aware
of other legal and regulatory responsibilities applicable
to the Sub-Adviser with respect to the Series for which the Sub-Adviser is
responsible, and for monitoring the Sub-Advisers' discharge of their duties; but
Xxxxxxxx Xxxxxxxx is not responsible for the specific actions (or inactions) of
a Sub-Adviser in the performance of the duties assigned to it.
(c) With respect to each Sub-Adviser for a Series, Xxxxxxxx Xxxxxxxx
shall enter into an agreement ("Sub-Advisory Agreement") with the Sub-Adviser in
substantially the form previously approved by the Board and shall seek approval
of the Board or a Series' shareholders in a manner consistent with the 1940 Act,
the rules thereunder or any applicable exemptive order.
(d) Xxxxxxxx Xxxxxxxx shall be responsible for the fees payable to and
shall pay the Sub-Adviser of a Series the fee as specified in the Sub-Advisory
Agreement relating thereto.
(e) In the event that the Board shall request that Xxxxxxxx Xxxxxxxx
provide any portfolio management services to one or more Series, Xxxxxxxx
Xxxxxxxx shall comply with this paragraph 2(e). Xxxxxxxx Xxxxxxxx agrees that in
placing orders with brokers, it will attempt to obtain the best net result in
terms of price and execution; provided that, on behalf of any Series, Xxxxxxxx
Xxxxxxxx may, in its discretion, use brokers who provide the Series with
research, analysis, advice and similar services to execute portfolio
transactions on behalf of the Series, and Xxxxxxxx Xxxxxxxx may pay to those
brokers in return for brokerage and research services a higher commission than
may be charged by other brokers, subject to Xxxxxxxx Xxxxxxxx' determining in
good faith that such commission is reasonable in terms either of the particular
transaction or of the overall responsibility of Xxxxxxxx Xxxxxxxx to such Series
and its other clients and that the total commissions paid by such Series will be
reasonable in relation to the benefits to the Series over the long term. In no
instance will portfolio securities be purchased from or sold to Xxxxxxxx
Xxxxxxxx, or any affiliated person thereof, except in accordance with the
federal securities laws and the rules and regulations thereunder. Xxxxxxxx
Xxxxxxxx may aggregate sales and purchase orders with respect to the assets of
the Series with similar orders being made simultaneously for other accounts
advised by Xxxxxxxx Xxxxxxxx or its affiliates. Whenever Xxxxxxxx Xxxxxxxx
simultaneously places orders to purchase or sell the same security on behalf of
a Series and one or more other accounts advised by Xxxxxxxx Xxxxxxxx, such
orders will be allocated as to price and amount among all such accounts in a
manner believed to be equitable over time to each account. The Fund recognizes
that in some cases this procedure may adversely affect the results obtained for
the Series. In providing any portfolio management services, Xxxxxxxx Xxxxxxxx
will oversee the maintenance of all books and records with respect to the
securities transactions of each Series, and will furnish the Board with such
periodic and special reports as the Board reasonably may request. In compliance
with the requirements of Rule 31a-3 under the 1940 Act, Xxxxxxxx Xxxxxxxx hereby
agrees that all records which it maintains for the Fund are the property of the
Fund, agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940
Act any records which it maintains for the Fund and which are required to be
maintained by Rule 31a-1 under the 1940 Act and further agrees to surrender
promptly to the Fund any records which it maintains for the Fund upon request by
the Fund. In providing any portfolio management services, Xxxxxxxx Xxxxxxxx will
oversee the computation of the net asset value and the net income of each Series
as described in the currently effective registration statement of the Fund under
the Securities Act of 1933, as amended, and the 1940 Act and any supplements
thereto ("Registration Statement") or as more frequently requested by the Board.
The Fund hereby authorizes Xxxxxxxx Xxxxxxxx and any entity or persons
associated with Xxxxxxxx Xxxxxxxx which is a
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member of a national securities exchange to effect any transaction on such
exchange for the account of the Fund, which transaction is permitted by
Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder, and the Fund hereby
consents to the retention of compensation by Xxxxxxxx Xxxxxxxx or any entity or
persons associated with Xxxxxxxx Xxxxxxxx for such transactions.
3. DUTIES AS ADMINISTRATOR. Xxxxxxxx Xxxxxxxx will administer the
affairs of the Fund and Series subject to the oversight and direction of the
Board and the following understandings:
(a) Xxxxxxxx Xxxxxxxx will supervise all aspects of the operations of
the Fund and the Series, including oversight of transfer agency, custodial and
accounting services, except as hereinafter set forth; provided, however, that
nothing herein contained shall be deemed to relieve or deprive the Board of any
of its responsibilities with respect to the conduct of the affairs of the Fund
and the Series.
(b) Xxxxxxxx Xxxxxxxx will provide the Fund and each Series with such
corporate, administrative and clerical personnel (including officers of the
Fund) and services as are reasonably deemed necessary or advisable by the Board,
including the maintenance of certain books and records of the Fund and Series in
connection with the administration of the Fund.
(c) Xxxxxxxx Xxxxxxxx will arrange, but not pay, for the periodic
preparation, updating, filing and dissemination (as applicable) of the Fund's
Registration Statement, proxy material, tax returns and required reports to
shareholders of each Series and the Securities and Exchange Commission ("SEC")
and other appropriate federal or state regulatory authorities.
(d) Xxxxxxxx Xxxxxxxx will provide the Fund and each Series with, or
obtain for it, adequate office space and all necessary office equipment and
services, including telephone service, heat, utilities, stationery supplies and
similar items.
(e) Xxxxxxxx Xxxxxxxx will provide the Board on a regular basis with
economic and investment analyses and reports and make available to the Board
upon request any economic, statistical and investment services normally
available to institutional or other customers of Xxxxxxxx Xxxxxxxx.
4. FURTHER DUTIES. In all matters relating to the performance of this
Contract, Xxxxxxxx Xxxxxxxx will act in conformity with the Declaration of
Trust, By-Laws and the currently effective Registration Statement of the Fund
and with the instructions and directions of the Board and will comply with the
requirements of the 1940 Act, the Advisers Act, and the rules under each, and
all other applicable federal and state laws and regulations.
5. DELEGATION OF XXXXXXXX XXXXXXXX' DUTIES AS INVESTMENT MANAGER AND
ADMINISTRATOR. With respect to any or all Series, Xxxxxxxx Xxxxxxxx may enter
into one or more contracts ("Sub-Investment Management or Sub-Administration
Contract") with one or more sub-investment managers or sub-administrators in
which Xxxxxxxx Xxxxxxxx delegates to such sub-investment managers or
sub-administrators any or all of its duties specified in Paragraphs 2 and 3 of
this Contract, provided that each Sub-Investment Management or
Sub-Administration Contract imposes on the sub-investment manager or
sub-administrator bound thereby all the corresponding duties and conditions
towhich Xxxxxxxx Xxxxxxxx is subject under Paragraphs 2
3
and 3 of this Contract, and further provided that each Sub-Investment Management
or Sub-Administration Contract meets all requirements of the 1940 Act and rules
thereunder.
6. SERVICES NOT EXCLUSIVE. The services furnished by Xxxxxxxx
Xxxxxxxx hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall be
free to furnish similar services to others so long as its services under this
Contract are not impaired thereby. Nothing in this Contract shall limit or
restrict the right of any director, officer or employee of Xxxxxxxx Xxxxxxxx,
who may also be a Trustee, officer or employee of the Fund, to engage in any
other business or to devote his or her time and attention in part to the
management or other aspects of any other business, whether of a similar nature
or a dissimilar nature.
7. EXPENSES.
(a) During the term of this Contract, each Series will bear all
expenses, not specifically assumed by Xxxxxxxx Xxxxxxxx, incurred in its
operations and the offering of its shares.
(b) Expenses borne by each Series will include but not be limited to
the following (or the Series' proportionate share of the following): (i) the
cost (including brokerage commissions) of securities purchased or sold by the
Series and any losses incurred in connection therewith; (ii) fees payable to and
expenses incurred on behalf of the Series by Xxxxxxxx Xxxxxxxx under this
Contract; (iii) expenses of organizing the Series; (iv) filing fees and expenses
relating to the registrations and qualification of the Series' shares and the
Fund under federal and/or state securities laws and maintaining such
registration and qualifications; (v) fees and salaries payable to the Fund's
Trustees and officers who are not interested persons of the Fund or Xxxxxxxx
Xxxxxxxx; (vi) all expenses incurred in connection with the Trustees' services,
including travel expenses; (vii) taxes (including any income or franchise taxes)
and governmental fees; (viii) costs of any liability, uncollectible items of
deposit and other insurance and fidelity bonds; (ix) any costs, expenses or
losses arising out of a liability of or claim for damages or other relief
asserted against the Fund or the Series for violation of any law; (x) legal,
accounting and auditing expenses, including legal fees of special counsel for
those Trustees of the Fund who are not interested persons of the Fund; (xi)
charges of custodians, transfer agents and other agents; (xii) costs of
preparing share certificates; (xiii) expenses of setting in type and printing
prospectuses and supplements thereto, statements of additional information and
supplements thereto, reports and proxy materials for existing shareholders;
(xiv) costs of mailing prospectuses and supplements thereto, statements of
additional information and supplements thereto, reports and proxy materials to
existing shareholders; (xv) any extraordinary expenses (including fees and
disbursements of counsel, costs of actions, suits or proceedings to which the
Fund is a party and the expenses the Fund may incur as a result of its legal
obligation to provide indemnification to its officers, Trustees, agents and
shareholders) incurred by the Fund or the Series; (xvi) fees, voluntary
assessments and other expenses incurred in connection with membership in
investment company organizations; (xvii) costs of mailing and tabulating proxies
and costs of meetings of shareholders, the Board and any committees thereof;
(xviii) the cost of investment company literature and other publications
provided by the Fund to its Trustees and officers; (xix) costs of mailing,
stationery and communications equipment; (xx) expenses incident to any dividend,
withdrawal or redemption options; (xxi) charges and expenses of any outside
pricing service
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used to value portfolio securities; (xxii) interest on borrowings of the Fund;
and (xxiii) any fees or expenses related to license agreements with respect to
securities indices.
(c) The Fund or a Series may pay directly any expenses incurred by it
in its normal operations and, if any such payment is consented to by Xxxxxxxx
Xxxxxxxx and acknowledged as otherwise payable by Xxxxxxxx Xxxxxxxx pursuant to
this Contract, a Series may reduce the fee payable to Xxxxxxxx Xxxxxxxx pursuant
to Paragraph 8 thereof by such amount. To the extent that such deductions exceed
the fee payable to Xxxxxxxx Xxxxxxxx on any monthly payment date, such excess
shall be carried forward and deducted in the same manner from the fee payable on
succeeding monthly payment dates.
(d) Xxxxxxxx Xxxxxxxx will assume the cost of any compensation for
services provided to the Fund received by the officers of the Fund and by those
Trustees who are interested persons of the Fund.
(e) The payment or assumption by Xxxxxxxx Xxxxxxxx of any expenses of
the Fund or a Series that Xxxxxxxx Xxxxxxxx is not required by this Contract to
pay or assume shall not obligate Xxxxxxxx Xxxxxxxx to pay or assume the same or
any similar expense of the Fund or a Series on any subsequent occasion.
8. COMPENSATION.
(a) For the services provided and the expenses assumed pursuant to
this Contract, the Fund will pay to Xxxxxxxx Xxxxxxxx the annual fee set forth
below with respect to the indicated Series, such fee stated as a percentage of
average daily net assets, to be computed daily and paid monthly.
Balanced Portfolio 0.75%
Global Equity Portfolio 0.75%
Global Income Portfolio 0.75%
Growth Portfolio 0.75%
Growth and Income Portfolio 0.70%
High Grade Fixed Income Portfolio 0.50%
High Income Portfolio 0.50%
Small Cap Portfolio 1.00%
Strategic Income Portfolio 0.75%
(b) For the services provided and the expenses assumed pursuant to
this Contract with respect to any Series hereafter established, the Fund will
pay to Xxxxxxxx Xxxxxxxx from the assets of such Series a fee in an amount to be
agreed upon in a written fee agreement ("Fee Agreement") executed by the Fund on
behalf of such Series and by Xxxxxxxx Xxxxxxxx. All such Fee Agreements shall
provide that they are subject to all terms and conditions of this Contract.
(c) The fee shall be computed daily and paid monthly to Xxxxxxxx
Xxxxxxxx on or before the last business day of the next succeeding calendar
month.
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(d) If this Contract becomes effective or terminates before the end of
any month, the fee for the period from the effective day to the end of the month
or from the beginning of such month to the date of termination, as the case may
be, shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs.
9. LIMITATION OF LIABILITY OF XXXXXXXX XXXXXXXX. Xxxxxxxx Xxxxxxxx
and its officers, directors, employees and delegates, including any Sub-Adviser,
Sub-Investment Manager or Sub-Administrator to a Series, shall not be liable for
any error of judgment or mistake of law or for any loss suffered by any Series,
the Fund or any of its shareholders, in connection with the matters to which
this Contract relates, except to the extent that such a loss results from
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Contract. Any person, even though also an officer,
director, employee, or agent of Xxxxxxxx Xxxxxxxx, who may be or become an
officer, Trustee, employee or agent of the Fund shall be deemed, when rendering
services to a Series or the Fund or acting with respect to any business of such
Series or the Fund, to be rendering such service to or acting solely for the
Series or the Fund and not as an officer, director, employee, or agent or one
under the control or direction of Xxxxxxxx Xxxxxxxx even though paid by it.
10. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS OF THE
FUND. The Trustees, officers, employees or agents of the Fund and the
shareholders of any Series shall not be liable for any obligations of any Series
or the Fund under this Agreement and Xxxxxxxx Xxxxxxxx agrees that, in asserting
any rights or claims under this Agreement, it shall look only to the assets and
property of the Fund in settlement of such right or claim, and not to such
Trustees, officers, employees, agents or shareholders.
11. DURATION AND TERMINATION.
(a) This Contract shall become effective for each Series upon the day
and year first written above, provided that, with respect to any Series, this
Contract shall not take effect unless it has first been approved (i) by a vote
of a majority of those Trustees of the Fund who are not parties to this Contract
or interested persons of any such party cast in person at a meeting called for
the purpose of voting on such approval and (ii) by vote of a majority of that
Series' outstanding voting securities.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from the above written date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of those Trustees of the Fund who are
not parties to this Contract or interested persons of any such party, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or, with respect to any given Series, by vote of a majority of the
outstanding voting securities of such Series.
(c) Notwithstanding the foregoing, with respect to a Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board or by a vote of a majority of the outstanding voting
securities of the Series on sixty days' written notice to
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Xxxxxxxx Xxxxxxxx and may be terminated by Xxxxxxxx Xxxxxxxx at any time,
without the payment of any penalty, on sixty days' written notice to the Fund.
Termination of this Contract with respect to a Series shall in no way affect
the continued validity of this Contract or the performance thereunder with
respect to any other Series. This Contract will terminate automatically in
the event of its assignment.
12. AMENDMENT OF THIS CONTRACT. No provision of this Contract 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 amendment of this Contract as to a
Series shall be effective until approved by vote of a majority of the Series'
outstanding voting securities.
13. GOVERNING LAW. This Contract shall be construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws principles thereof, and in accordance with the 1940 Act, provided, however,
that Paragraph 10 above will be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of New York or the Commonwealth of Massachusetts conflict with the
applicable provisions of the 1940 Act, the latter shall control.
14. MISCELLANEOUS. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "national
securities exchange," "net assets," "prospectus," "sale," "sell" and "security"
shall have the same meaning as such terms have in the 1940 Act, subject to such
exemption as may be granted by the SEC by any rule, regulation or order. Where
the effect of a requirement of the 1940 Act reflected in any provision of this
contract is relaxed by a rule, regulation or order of the SEC, whether of
special or general application, such provision shall be deemed to incorporate
the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated as of the day and year first above
written.
XXXXXXXX XXXXXXXX SERIES TRUST
Attest: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
---------------------------- ----------------------------
Name: Xxxxxxxx Xxxxxxxx Name: Xxxxxx X. X'Xxxxxxx
Title: Assistant Secretary Title: Secretary and Vice President
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxx X. Doberman
---------------------------- ----------------------------
Name: Xxxxxxxx Xxxxxxxx Name: Xxx X. Doberman
Title: Vice President Title: Senior Vice President and
General Counsel
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