EXHIBIT 99.5
MANAGEMENT AGREEMENT
This Agreement, made on the 31st day of December, 1986, amended on the 24th
day of February, 1995, and amended on the 21st day of February, 1997 by and
between XXXXXXX XXXXX RETIREMENT SERIES TRUST, a Massachusetts business trust
(hereinafter referred to as the "Trust"), and XXXXXXX XXXXX ASSET MANAGEMENT,
L.P., a Delaware limited partnership (hereinafter referred to as the "Manager").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as a diversified open-end
investment company registered under the Investment Company Act of 1940, as
amended (hereinafter referred to as the "Investment Company Act"); and
WHEREAS, the Trust is authorized to establish separate series, each of
which will offer a separate class of shares to various types of retirement
plans; and
WHEREAS, the Trust has established the XXXXXXX XXXXX RETIREMENT RESERVES
MONEY FUND (the "Money Market Fund") as the initial series of the Trust; and
WHEREAS, the Manager is engaged principally in rendering management and
investment advisory services and is registered as an investment adviser under
the Investment Advisers Act of 1940; and
WHEREAS, the Trust desires to retain the Manager to render management and
investment advisory services to the Trust and Money Market Fund in the manner
and on the terms hereinafter set forth; and
WHEREAS, the Manager is willing to provide management and investment
advisory services to the Trust and the Money Market Fund on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Manager hereby agree as follows:
ARTICLE I
DUTIES OF THE MANAGER
The Trust hereby employs the Manager to act as the manager and investment
adviser of the Money Market Fund and to furnish, or arrange for affiliates to
furnish, the management and investment advisory services described below,
subject to the supervision of the Trustees of the Trust, for the period and on
the terms and conditions set forth in this Agreement. The Manager hereby
accepts such employment and agrees during such period, at its own expense, to
render, or arrange for the rendering of, such services and to assume the
obligations herein set forth for the compensation provided for herein. The
Manager and its affiliates shall all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust or the Money
Market Fund in any way or otherwise be deemed an agent of the Trust or the Money
Market Fund.
(a) Management Services. The Manager shall perform (or arrange for the
performance by affiliates of) the management and administrative services
necessary for the operation of the Trust and the Money Market Fund including
processing shareholder orders, administering shareholder accounts and handling
shareholder relations. The Manager shall provide the Trust and the Money Market
Fund with office space, equipment and facilities and such other services as the
Manager, subject to review by the Trustees, shall from time to time determine to
be necessary or useful to perform its obligations under this Agreement. The
Manager shall also, on behalf of the Trust and the Money Market Fund, conduct
relations with custodians, depositories, transfer agents, dividend disbursing
agents, other shareholder service agents, accountants, attorneys, underwriters,
brokers and dealers, corporate fiduciaries, insurers, banks and such other
persons in any such other capacity deemed to be necessary or desirable. The
Manager shall make reports to the Trustees of its performance of obligations
hereunder and furnish advice and recommendations with respect to such other
aspects of the business and affairs of the Trust and the Money Market Fund as it
shall determine to be desirable.
(b) Investment Advisory Services. The Manager shall provide the Trust
with such investment research, advice and supervision as the latter may from
time to time consider necessary for the proper supervision of the assets of the
Money Market Fund, shall furnish continuously an investment program for the
Money Market Fund and shall determine from time to time which securities shall
be purchased, sold or exchanged and what portion of the assets of the Money
Market Fund shall be held in the various money market securities or cash,
subject always to the restrictions of the Declaration of Trust and By-Laws of
the Trust, as amended from time to time, the provisions of the Investment
Company Act and the statements relating to the Trust's investment objectives,
investment policies and investment restrictions as the same are set forth in the
currently effective prospectus and statement of additional information relating
to the shares of beneficial interest of the Money Market Fund under the
Securities Act of 1933, as amended (the "Prospectus" and "Statement of
Additional Information", respectively). The Manager shall also make decisions
for the Trust as to the manner in which voting rights, rights to consent to
corporate action and any other rights pertaining to the Trust's portfolio
securities shall be exercised. Should the Trustees at any time, however, make
any definite determination as to investment policy and notify the Manager
thereof in writing, the Manager shall be bound by such determination for the
period, if any, specified in such notice or until similarly notified that such
determination has been revoked. The Manager shall take, on behalf of the Money
Market Fund, all actions which it deems necessary to implement the investment
policies determined as provided above, and in particular to place all orders for
the purchase or sale of portfolio securities for the Money Market Fund's account
with brokers or dealers selected by it, and to that end, the Manager is
authorized as the agent of the Trust to give instructions to the Custodian of
the Money Market Fund as to deliveries of securities and payments of cash for
the account of the Money Market Fund. In connection with the selection of such
brokers or dealers and the placing of such orders with respect to assets of the
Money Market Fund, the Manager is directed at all times to seek to obtain
execution and price within the policy guidelines determined by the Trustees of
the Trust and set forth in the Prospectus and Statement of Additional
Information. Subject to this requirement and the provisions of the Investment
Company Act, the Securities Exchange Act of 1934, as amended, and other
applicable provisions of law, the Manager may select brokers or dealers with
which it or the Trust is affiliated.
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ARTICLE II
ALLOCATION OF CHARGES AND EXPENSES
(a) The Manager. The Manager assumes and shall pay for maintaining the
staff and personnel necessary to perform its obligations under this Agreement,
and shall at its own expense, provide the office space, equipment and facilities
which it is obligated to provide under Article I hereof, and shall pay all
compensation of officers of the Trust and all compensation of trustees of the
Trust who are affiliated persons of the Manager.
(b) The Trust. The Trust assumes and shall pay or cause to be paid all
other expenses of the Money Market Fund (except for the expenses incurred by the
Distributor), including, without limitation: redemption expenses, expenses of
portfolio transactions, expenses of registering shares under Federal and state
securities laws, pricing costs (including the daily calculation of net asset
value), expenses of printing shareholder reports and prospectuses, Securities
and Exchange Commission fees, interest, taxes, fees and actual out-of-pocket
expenses of trustees who are not affiliated persons of the Manager, fees for
legal and auditing services, litigation expenses, costs of printing proxies and
other expenses related to shareholder meetings, and other expenses properly
payable by the Trust. It is also understood that the Trust will reimburse the
Manager for its costs in providing accounting services to the Trust. The
Distributor will pay certain of the expenses of the Money Market Fund incurred
in connection with the continuous offering of Money Market Fund shares.
ARTICLE III
COMPENSATION OF THE MANAGER
(a) Management Fee. For the services rendered, the facilities furnished
and the expenses assumed by the Manager, the Trust shall pay to the Manager
compensation at the following annual rates calculated as hereinafter set forth,
commencing on the day following effectiveness hereof:
Advisory
fee
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Portion of average daily value of net assets:
Not exceeding $1 billion.................................... 0.50%
In excess of $1 billion but not exceeding $2 billion........ 0.45%
In excess of $2 billion but not exceeding $3 billion........ 0.40%
In excess of $3 billion but not exceeding $4 billion........ 0.375%
In excess of $4 billion but not exceeding $7 billion........ 0.35%
In excess of $7 billion but not exceeding $10 billion....... 0.325%
In excess of $10 billion.................................... 0.30%
Except as hereinafter set forth, compensation under this Agreement shall be
calculated and accrued daily and paid monthly by applying the annual rate to the
average daily net assets of the Money Market Fund determined as of each business
day. If this Agreement becomes effective subsequent to the first day of a month
or shall terminate before the last day of a month, compensation for that part
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of the month this Agreement is in effect shall be prorated in a manner
consistent with the calculation of the fees as set forth above. Subject to the
provisions of subsection (b) hereof, payment of the Manager's compensation for
the preceding month shall be made as promptly as possible after completion of
the computations contemplated by subsection (b) hereof.
(b) Expense Limitations. In the event the operating expenses of the Money
Market Fund, including amounts payable to the Manager pursuant to subsection (a)
hereof, for any fiscal year ending on a date on which this Agreement is in
effect exceed the expense limitations applicable to the Money Market Fund
imposed by applicable state securities laws or regulations thereunder, as such
limitations may be raised or lowered from time to time, the Manager shall reduce
its management fee by the extent of such excess and, if required pursuant to any
such laws or regulations, will reimburse the Money Market Fund in the amount of
such excess, provided, however, to the extent permitted by law, there shall be
excluded from such expenses the amount of any interest, taxes, brokerage
commissions and extraordinary expenses (including but not limited to legal
claims and liabilities and litigation costs and any indemnification related
thereto) paid or payable by the Money Market Fund. Whenever the expenses of the
Money Market Fund exceed a pro-rata portion of the applicable annual expense
limitations, the estimated amount of reimbursement under such limitations shall
be applicable as an offset against the monthly payment of the fee due to the
Manager. Should two or more such expense limitations be applicable as at the
end of the last business day of the month, that expense limitation which results
in the largest reduction in the Manager's fee shall be applicable.
ARTICLE IV
LIMITATION OF LIABILITY OF THE MANAGER
The Manager shall not be liable for any error of judgment or mistake of law
or for any loss arising out of any investment or for any act or omission in the
management of the Trust and the Money Market Fund, except for willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
by reason of reckless disregard of its obligations and duties hereunder. As
used in this Article IV, the term "Manager" shall include any affiliates of the
Manager performing services for the Trust or the Money Market Fund contemplated
hereby and directors, officers and employees of the Manager and such affiliates.
ARTICLE V
ACTIVITIES OF THE MANAGER
The services of the Manager to the Trust and the Money Market Fund are not
to be deemed to be exclusive, the Manager being free to render services to
others. It is understood that trustees, officers, employees and shareholders of
the Trust and the Money Market Fund are or may become interested in the Manager,
as directors, officers, employees and shareholders or otherwise and that
directors, officers, employees and shareholders of the Manager are or may become
similarly interested in the Trust and the Money Market Fund, and that the
Manager may become interested in the Trust and the Money Market Fund as
shareholder or otherwise.
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ARTICLE VI
DURATION AND TERMINATION OF THIS CONTRACT
This Agreement shall become effective as of the date first above written
and shall remain in force until January 31, 1998 and thereafter, but only so
long as such continuance is specifically approved at least annually by (i) the
Trustees of the Trusts or by the vote of a majority of the outstanding voting
securities of the Money Market Fund, and (ii) a majority of those trustees who
are not parties to this Agreement or interested persons of any such party cast
in person at a meeting called for the purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Trustees of the Trust or by vote of a majority of the
outstanding voting securities of the Money Market Fund, or by the Manager, on
sixty days' written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment.
ARTICLE VII
AMENDMENTS OF THIS AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Trustees of the Trust, or by the vote of a
majority of outstanding voting securities of the Money Market Fund, and (ii) a
majority of those trustees who are not parties to this Agreement or interested
persons of any such party cast in person at a meeting called for the purpose of
voting on such approval.
ARTICLE VIII
DEFINITIONS OF CERTAIN TERMS
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person", when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act.
ARTICLE IX
GOVERNING LAW
This Agreement shall be construed in accordance with laws of the State of
New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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ARTICLE X
PERSONAL LIABILITY
The Declaration of Trust establishing Xxxxxxx Xxxxx Retirement Series
Trust, dated July 15, 1986, a copy of which, together with all amendments
thereto (the "Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts provides that the name "Xxxxxxx Xxxxx Retirement
Series Trust" refers to the Trustees under the Declaration collectively as
Trustees, but not as individuals or personally; and no Trustee, shareholder,
officer, employee or agent of Xxxxxxx Xxxxx Retirement Series Trust shall be
held to any personal liability, nor shall resort be had to their private
property for the satisfaction of any obligation or claim or otherwise in
connection with the affairs of said Xxxxxxx Xxxxx Retirement Series Trust, but
the Trust Property only shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
XXXXXXX XXXXX RETIREMENT SERIES TRUST
By /s/ Xxxx X. Xxxxxxx
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XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
By /s/ Xxxxxx X. Xxxxxxxx
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SUPPLEMENT TO INVESTMENT ADVISORY AGREEMENT
WITH
XXXXXXX XXXXX ASSET MANAGEMENT
As of January 1, 1994 Xxxxxxx Xxxxx Investment Management, Inc. d/b/a/
Xxxxxxx Xxxxx Asset Management was reorganized as a limited partnership,
formally known as Xxxxxxx Xxxxx Asset Management, L.P. and continuing to do
business under the name Xxxxxxx Xxxxx Asset Management ("MLAM"). The
general partner of MLAM is Princeton Services, Inc. and the limited
partners are Xxxxxxx Xxxxx Investment Management, Inc. and Xxxxxxx Xxxxx &
Co., Inc. Pursuant to Rule 202(a)(1)-1 under the Investment Advisers Act of
1940 and Rule 2a-6 under the Investment Company Act of 1940 such
reorganization did not constitute an assignment of this investment advisory
agreement since it did not involve a change of control or management of the
investment adviser. Pursuant to the requirements of Section 205 of the
Investment Advisers Act of 1940, however, Xxxxxxx Xxxxx Asset Management
hereby supplements this investment advisory agreement by undertaking to
advise you of any change in the membership of the partnership within a
reasonable time after any such change occurs.
By /s/ Xxxxxx Xxxxxx
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Dated: January 3, 1994
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