Exhibit 99(d)
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GIANT 5
funds
AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
Giant 5 Funds
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
July __, 2006
The Xxxxxx Group
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Dear Sirs:
This will confirm the agreement between the undersigned Giant 5 Funds
(the "Trust") and The Xxxxxx Group (the "Adviser") as follows:
1. The Trust is an open-end investment company organized as a Delaware
statutory trust and consists of one or more separate investment portfolios (the
"Funds") as may be established and designated by the Trust's Board of Trustees
(the "Board of Trustees") from time to time. This letter agreement shall pertain
to such Funds as shall be designated in Appendix A attached hereto, as may be
amended from time to time (the "Covered Funds"). A separate series of shares of
beneficial interest in the Trust are offered to investors with respect to each
Fund. The Trust engages in the business of investing and reinvesting the assets
of each Fund in the manner and in accordance with the investment objectives and
restrictions specified in the currently effective prospectus (the "Prospectus")
relating to the Trust and the Funds included in the Trust's registration
statement, as amended from time to time (the "Registration Statement"), filed by
the Trust under the Investment Company Act of 1940 (the "1940 Act") and the
Securities Act of 1933. Copies of the documents referred to in the preceding
sentence have been furnished to the Adviser. Any amendments to those documents
shall be furnished to the Adviser promptly.
2. The Trust hereby appoints the Adviser to provide the investment
advisory services specified herein and the Adviser hereby accepts such
appointment.
3. (a) The Adviser shall, at its expense, (i) employ or associate with
itself such persons as it believes appropriate to assist it in performing its
obligations under this agreement and (ii) provide all services, equipment and
facilities necessary to perform its obligations under this letter agreement. The
Adviser shall be responsible for organization expenses.
(b) The Trust shall be responsible for all of its expenses and
liabilities, including compensation of its Trustees who are not affiliated with
the Adviser or any of its affiliates; taxes and governmental fees; interest
charges; fees and expenses of the Trust's independent accountants and legal
counsel; trade association membership dues; fees and expenses of any custodian
(including maintenance of books and accounts and calculation of the net asset
value of shares of the Funds), transfer agent, registrar and dividend disbursing
agent of the Trust; expenses of issuing, selling, redeeming, registering and
qualifying for sale shares of beneficial interest in the Trust; expenses of
preparing and printing share certificates, prospectuses and reports to
shareholders, notices, proxy statements and reports to regulatory agencies; the
cost of office, supplies, including stationery; travel expenses of all officers,
Trustees and employees; insurance premiums; brokerage and other expenses of
executing portfolio transactions; expenses of shareholders' meetings; and
extraordinary expenses.
4. (a) The Adviser shall provide to the Trust investment guidance and
policy direction in connection with the management of the portfolio of each
Covered Fund, including oral and written research, analysis, advice, statistical
and economic data and information and judgments of both a macroeconomic and
microeconomic character.
The Adviser will determine the securities to be purchased or sold by
each Covered Fund and will place orders pursuant to its determinations either
directly with the issuer or with any broker or dealer who deals in such
securities. The Adviser will determine what portion of each Covered Fund's
portfolio shall be invested in securities described by the policies of such
Covered Fund and what portion, if any, should be invested otherwise or held
uninvested.
The Trust will have the benefit of the investment analysis and
research, the review of current economic conditions and trends and the
consideration of long-range investment policy generally available to investment
advisory customers of the Adviser. It is understood that the Adviser will not
use any inside information pertinent to investment decisions undertaken in
connection with this agreement that may be in its possession or in the
possession of any of its affiliates nor will the Adviser seek to obtain any such
information.
(b) The Adviser also shall provide to the Trust's officers
administrative assistance in connection with the operation of the Trust and each
of the Covered Funds, which shall include (i) compliance with all reasonable
requests of the Trust for information, including information required in
connection with the Trust's filings with the Securities and Exchange Commission
and state securities commissions and (ii) such other services as the Adviser
shall from time to time determine to be necessary or useful to the
administration of the Trust and each of the Covered Funds.
(c) As manager of the assets of each Covered Fund, the Adviser
shall make investments for the account of that Fund in accordance with the
Adviser's best judgment and within the investment objectives and restrictions
set forth in the Prospectus, the 1940 Act and the
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provisions of the Internal Revenue Code of 1986 relating to regulated
investment companies subject to policy decisions adopted by the Board of
Trustees.
(d) The Adviser shall furnish to the Board of Trustees
periodic reports on the investment performance of each Covered Fund and on the
performance of its obligations under this agreement and shall supply such
additional reports and information as the Trust's officers or Board of Trustees
shall reasonably request.
(e) On occasions when the Adviser deems the purchase or sale
of a security to be in the best interest of a Covered Fund as well as other
customers, the Adviser, to the extent permitted by applicable law, may aggregate
the securities to be so sold or purchased in order to obtain the best execution
or lower brokerage commissions, if any. The Adviser may also on occasions
purchase or sell a particular security for one or more customers in different
amounts. On either occasion, and to the extent permitted by applicable law and
regulations, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to that Fund and to such other customers.
5. The Adviser shall give the Trust the benefit of the Adviser's best
judgment and efforts in rendering services under this agreement. As an
inducement to the Adviser's undertaking to render these services, the Trust
agrees that the Adviser shall not be liable under this agreement for any mistake
in judgment or in any other event whatsoever provided that nothing in this
agreement shall be deemed to protect or purport to protect the Adviser against
any liability to the Trust or its shareholders to which the Adviser would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of the Adviser's duties under this agreement or by
reason of the Adviser's reckless disregard of its obligations and duties
hereunder.
6. In consideration of its services, the Adviser is entitled to a fee
from each Covered Fund, computed daily and paid monthly on the first business
day of each month equal on an annual basis to 0.67% of such Fund's average daily
net assets. If the fees payable to the Adviser pursuant to this paragraph 6
begin to accrue before the end of any month or if this agreement terminates
before the end of any month, the fees for the period from that date to the end
of that month or from the beginning of that month to the date of termination, as
the case may be, shall be prorated according to the proportion which the period
bears to the full month in which the effectiveness or termination occurs. For
purposes of calculating the monthly fees, the value of the net assets of each
Covered Fund shall be computed in the manner specified in the Prospectus for the
computation of net asset value. For purposes of this agreement, a "business day"
is any day the New York Stock Exchange is open for trading.
7. In selecting brokers or dealers to execute portfolio transactions on
behalf of a Covered Fund, the Adviser will seek the best overall terms
available. In assessing the best overall terms available for any transaction,
the Adviser must consider the factors it deems relevant, including the breadth
of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer, and the
reasonableness of the commission, if any, for the specific transaction and on a
continuing basis. In addition, the Adviser may, in selecting brokers or dealers
to execute a particular transaction and in evaluating
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the best overall terms available, consider the brokerage and research services
(as those terms are defined in Section 28(e) of the Securities Exchange Act
of 1934, as amended) provided to a Fund.
8. (a) This agreement and any supplement hereto shall become effective
with respect to a Fund on the later of the date set forth on this agreement or
the date on which Appendix A is amended to include such Fund and shall
thereafter continue in effect with respect to that Fund for a period of more
than two years from such date only so long as the continuance is specifically
approved at least annually (i) by the vote of a majority of the outstanding
voting securities of the Fund (as defined in the 1940 Act) or by the Board of
Trustees and (ii) by the vote, cast in person at a meeting called for that
purpose, of a majority of the members of the Board of Trustees who are not
parties to this letter agreement or "interested persons" (as defined in the 1940
Act) of any such party.
(b) This agreement and any supplement hereto may be terminated
with respect to a Covered Fund at any time, without the payment of any penalty,
by a vote of a majority of the outstanding voting securities of that Fund (as
defined in the 1940 Act) or by a vote of a majority of the entire Board of
Trustees on 60 days' written notice to the Adviser or by the Adviser on 60 days'
written notice to the Trust. This agreement shall terminate automatically in the
event of its assignment (as defined in the 1940 Act).
9. The Adviser is the owner of each of the following trademarks: The
Giant 5 Investment System(TM), The Giant 4 Investment System(TM), Giant 5 Total
Investment System(TM) and Giant 5 Total Index System(TM) (together, the
"Licensed Marks"), and the goodwill of the business symbolized thereby. The
Adviser is the owner of each of the following web addresses: Xxxxx0.xxx;
XxxxxXxxx.xxx; Xxxxx0Xxxxx.xxx; GiantFive Xxxxx.xxx; XxXxxxx0.xxx; and
XxXxxxxXxxx.xxx (collectively, the "Websites"). The Adviser hereby reserves any
and all right, title, and interest in and to the Licensed Marks and the
Websites. The Trust hereby agrees and acknowledges that any use of the Licensed
Marks or the Websites by the Trust or the Covered Funds after the termination or
discontinuance of this agreement for any reason shall cease immediately.
10. Except to the extent necessary to perform the Adviser's obligations
under this agreement, nothing herein shall be deemed to limit or restrict the
right of the Adviser, or any affiliate of the Adviser, or any employee of the
Adviser, to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
firm individual or association.
11. The investment management services of the Adviser to the Trust
under this agreement are not to be deemed exclusive as to the Adviser and the
Adviser will be free to render similar services to others.
12. This letter agreement shall be construed in accordance with the
laws of the State of Colorado provided that nothing herein shall be construed in
a manner inconsistent with the 1940 Act.
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13. In the event that the Board of Trustees shall establish one or more
additional investment portfolios, it shall so notify the Adviser in writing. If
the Adviser wishes to render investment advisory services to such portfolio, it
shall so notify the Trust in writing, whereupon such portfolio shall become a
Covered Fund hereunder.
14. The Declaration of Trust establishing the Trust, together with all
amendments thereto (the "Declaration"), a copy of which is on file in the Office
of the Secretary of the State of Delaware, provides that every contract made or
issued on behalf of the Trust by the Trustees or by any officers or officer
shall recite that the same was executed or made by or on behalf of the Trust by
them as Trustees or Trustee or as officers or officer or otherwise and not
individually and that the obligations of such instrument are not binding upon
any of them.
If the foregoing correctly sets forth the agreement between the Trust
and the Adviser, please so indicate by signing and returning to the Trust the
enclosed copy hereof.
Very truly yours,
GIANT 5 FUNDS
By:
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Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
ACCEPTED:
THE XXXXXX GROUP
By:
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Name: Xxxxxxx X. Xxxxxx
Title: President
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APPENDIX A
Giant 5 Total Investment System
Giant 5 Total Index System
A1
