The Xxxxxxx Fund
Investment Advisory Agreement
March 1, 1999
Page 4 of 7
INVESTMENT ADVISORY AGREEMENT
THE XXXXXXX FUND
INVESTMENT ADVISORY AGREEMENT, MADE THIS 1ST DAY OF MARCH, 1999, BY AND
BETWEEN XXXXXXX ASSET MANAGEMENT COMPANY, INC., A DELAWARE CORPORATION (THE
"ADVISOR"), AND THE XXXXXXX FUND, A MASSACHUSETTS BUSINESS TRUST CREATED
PURSUANT TO A DECLARATION OF TRUST FILED WITH THE SECRETARY OF STATE OF THE
COMMONWEALTH OF MASSACHUSETTS (THE "TRUST"), BOTH HAVING THEIR PRINCIPAL PLACE
OF BUSINESS AT 0000 XXXXXXXXXX XXXXXX, XXXXXXXX, XXXXXXXX.
WHEREAS, THE TRUST IS REGISTERED AS AN INVESTMENT COMPANY UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "1940 ACT"), FOR THE PURPOSE OF
INVESTING AND REINVESTING ITS ASSETS IN SECURITIES, AND OFFERING SEPARATE SERIES
(THE FUND(S)"), AS SET FORTH IN ITS DECLARATION OF TRUST, ITS BY-LAWS AND ITS
REGISTRATION STATEMENTS UNDER THE 1940 ACT AND THE SECURITIES ACT OF 1933 (THE
"1933 ACT"), AS AMENDED; AND THE TRUST DESIRES TO AVAIL ITSELF OF THE SERVICES,
INFORMATION, ADVICE, ASSISTANCE AND FACILITIES OF AN INVESTMENT ADVISOR AND TO
HAVE AN INVESTMENT ADVISOR PERFORM FOR IT VARIOUS INVESTMENT ADVISORY, RESEARCH
SERVICES AND OTHER MANAGEMENT SERVICES; AND
WHEREAS, THE ADVISOR IS AN INVESTMENT ADVISOR REGISTERED UNDER THE
INVESTMENT ADVISERS ACT OF 1940, AS AMENDED, AND IS ENGAGED IN THE BUSINESS OF
RENDERING MANAGEMENT AND INVESTMENT ADVISORY SERVICES TO INVESTMENT COMPANIES
AND DESIRES TO PROVIDE SUCH SERVICES TO THE TRUST;
NOW, THEREFORE, IN CONSIDERATION OF THE TERMS AND CONDITIONS HEREINAFTER
SET FORTH, IT IS AGREED AS FOLLOWS:
1. EMPLOYMENT OF THE ADVISOR. THE TRUST HEREBY EMPLOYS THE ADVISOR TO MANAGE
THE INVESTMENT AND REINVESTMENT OF THE TRUST ASSETS, SUBJECT TO THE CONTROL AND
DIRECTION OF THE TRUST'S BOARD OF TRUSTEES, FOR THE PERIOD AND ON THE TERMS
HEREINAFTER SET FORTH. THE ADVISOR HEREBY ACCEPTS SUCH EMPLOYMENT AND AGREES
DURING SUCH PERIOD TO RENDER THE SERVICES AND TO ASSUME THE OBLIGATIONS IN
RETURN FOR THE COMPENSATION PROVIDED HEREIN. THE ADVISOR SHALL FOR ALL PURPOSES
HEREIN BE DEEMED TO BE AN INDEPENDENT CONTRACTOR AND SHALL, EXCEPT AS EXPRESSLY
PROVIDED OR AUTHORIZED (WHETHER HEREIN OR OTHERWISE), HAVE NO AUTHORITY TO ACT
FOR OR REPRESENT THE TRUST IN ANY WAY OR OTHERWISE BE DEEMED AN AGENT OF THE
TRUST.
2. OBLIGATIONS OF AND SERVICES TO BE PROVIDED BY THE ADVISOR. THE ADVISOR
UNDERTAKES TO PROVIDE THE FOLLOWING SERVICES AND TO ASSUME THE FOLLOWING
OBLIGATIONS:
A. THE ADVISOR SHALL MANAGE THE INVESTMENT AND REINVESTMENT OF EACH FUND'S
ASSETS, SUBJECT TO AND IN ACCORDANCE WITH THE INVESTMENT OBJECTIVES AND POLICIES
OF EACH FUND, ANY SOCIAL INVESTMENT SCREENING CRITERIA, AS STATED IN THE
REGISTRATION STATEMENT, AND ANY DIRECTIONS WHICH THE TRUST'S BOARD OF TRUSTEES
MAY ISSUE FROM TIME TO TIME. IN PURSUANCE OF THE FOREGOING, THE ADVISOR SHALL
MAKE ALL DETERMINATIONS WITH RESPECT TO THE INVESTMENT OF FUND ASSETS AND THE
PURCHASE AND SALE OF PORTFOLIO SECURITIES AND SHALL TAKE SUCH STEPS AS MAY BE
NECESSARY TO IMPLEMENT THE SAME. SUCH DETERMINATION AND SERVICES SHALL ALSO
INCLUDE DETERMINING THE MANNER IN WHICH VOTING RIGHTS, RIGHTS TO CONSENT TO
CORPORATE ACTION, ANY OTHER RIGHTS PERTAINING TO THE FUND'S PORTFOLIO SECURITIES
SHALL BE EXERCISED. THE ADVISOR SHALL RENDER REGULAR REPORTS TO THE TRUST'S
BOARD OF TRUSTEES CONCERNING THE TRUST'S INVESTMENT ACTIVITIES.
B. THE ADVISOR SHALL, IN THE NAME OF THE TRUST ON BEHALF OF EACH FUND, PLACE
ORDERS FOR THE EXECUTION OF THE TRUST'S PORTFOLIO TRANSACTIONS IN ACCORDANCE
WITH THE POLICIES WITH RESPECT THERETO SET FORTH IN THE TRUST'S CURRENT
REGISTRATION STATEMENT UNDER THE 1940 ACT AND THE 1933 ACT. IN CONNECTION WITH
THE PLACEMENT OF ORDERS FOR THE EXECUTION OF THE TRUST'S PORTFOLIO TRANSACTIONS
THE ADVISOR SHALL CREATE AND MAINTAIN ALL NECESSARY BROKERAGE RECORDS OF THE
TRUST IN ACCORDANCE WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS, INCLUDING
BUT NOT LIMITED TO RECORDS REQUIRED BY SECTION 31(A) OF THE 1940 ACT. ALL
RECORDS SHALL BE THE PROPERTY OF THE TRUST AND SHALL BE AVAILABLE FOR INSPECTION
AND USE BY THE SEC, THE TRUST OR ANY PERSON RETAINED BY THE TRUST. WHERE
APPLICABLE, SUCH RECORDS SHALL BE MAINTAINED BY THE ADVISOR FOR THE PERIODS AND
THE PLACES REQUIRED BY RULE 31A-2 UNDER THE 1940 ACT.
C. THE ADVISOR SHALL BEAR ITS EXPENSES OF PROVIDING SERVICES TO THE TRUST
PURSUANT TO THIS AGREEMENT EXCEPT SUCH EXPENSES AS ARE UNDERTAKEN BY THE TRUST.
IN ADDITION, THE ADVISOR SHALL PAY THE SALARIES AND FEES OF ALL TRUSTEES AND
EXECUTIVE OFFICERS WHO ARE EMPLOYEES OF THE ADVISOR OR ITS AFFILIATES ("ADVISOR
EMPLOYEES").
D. IN PROVIDING THE SERVICES AND ASSUMING THE OBLIGATIONS SET FORTH HEREIN,
THE ADVISOR MAY, AT ITS OWN EXPENSE, EMPLOY ONE OR MORE SUBADVISORS, AS APPROVED
BY THE BOARD OF TRUSTEES.
E. THE ADVISOR IS RESPONSIBLE FOR SCREENING INVESTMENTS TO DETERMINE THAT
THEY MEET A FUND'S SOCIAL INVESTMENT SCREENING CRITERIA, AS MAY BE AMENDED FROM
TIME TO TIME WITH THE APPROVAL OF THE BOARD.
3. EXPENSES OF THE TRUST. THE TRUST SHALL PAY ALL EXPENSES OTHER THAN THOSE
EXPRESSLY ASSUMED BY THE ADVISOR HEREIN. EXPENSES PAYABLE BY THE TRUST SHALL
INCLUDE, BUT ARE NOT LIMITED TO:
A. FEES TO THE ADVISOR AS PROVIDED HEREIN;
B. LEGAL AND AUDIT EXPENSES;
C. FEES AND EXPENSES RELATED TO THE REGISTRATION AND QUALIFICATION OF THE
TRUST AND ITS SHARES FOR DISTRIBUTION UNDER FEDERAL AND STATE SECURITIES LAWS;
D. EXPENSES OF THE ADMINISTRATIVE SERVICES AGENT, TRANSFER AGENT, REGISTRAR,
CUSTODIAN, DIVIDEND DISBURSING AGENT AND SHAREHOLDER SERVICING AGENT;
E. ANY TELEPHONE CHARGES ASSOCIATED WITH SHAREHOLDER SERVICING OR THE
MAINTENANCE OF THE FUNDS OR TRUST;
F. SALARIES, FEES AND EXPENSES OF TRUSTEES AND EXECUTIVE OFFICERS OF THE
TRUST, OTHER THAN ADVISOR EMPLOYEES;
G. TAXES AND CORPORATE FEES LEVIED AGAINST THE TRUST;
H. BROKERAGE COMMISSIONS AND OTHER EXPENSES ASSOCIATED WITH THE PURCHASE AND
SALE OF PORTFOLIO SECURITIES FOR THE TRUST;
I. EXPENSES, INCLUDING INTEREST, OF BORROWING MONEY;
J. EXPENSES INCIDENTAL TO MEETINGS OF THE TRUST'S SHAREHOLDERS AND THE
MAINTENANCE OF THE TRUST'S ORGANIZATIONAL EXISTENCE;
K. EXPENSES OF PRINTING STOCK CERTIFICATES REPRESENTING SHARES OF THE TRUST
AND EXPENSES OF PREPARING, PRINTING AND MAILING NOTICES, PROXY MATERIAL, REPORTS
TO REGULATORY BODIES AND REPORTS TO SHAREHOLDERS OF THE TRUST;
L. EXPENSES OF PREPARING AND TYPESETTING OF PROSPECTUSES OF THE TRUST;
M. EXPENSES OF PRINTING AND DISTRIBUTING PROSPECTUSES TO SHAREHOLDERS OF THE
TRUST;
N. ASSOCIATION MEMBERSHIP DUES;
O. INSURANCE PREMIUMS FOR FIDELITY AND OTHER COVERAGE;
P. DISTRIBUTION PLAN EXPENSES, AS PERMITTED BY RULE 12B-1 UNDER THE 1940 ACT
AND AS APPROVED BY THE BOARD; AND
Q. SUCH OTHER LEGITIMATE TRUST EXPENSES AS THE BOARD OF TRUSTEES MAY FROM
TIME TO TIME DETERMINE ARE PROPERLY CHARGEABLE TO THE TRUST.
4. COMPENSATION OF ADVISOR.
A. AS COMPENSATION FOR THE SERVICES RENDERED AND OBLIGATIONS ASSUMED
HEREUNDER BY THE ADVISOR, THE TRUST SHALL PAY TO THE ADVISOR WITHIN TEN (10)
DAYS AFTER THE LAST DAY OF EACH CALENDAR MONTH A FEE EQUAL ON AN ANNUALIZED
BASIS AS SHOWN ON SCHEDULE A. ANY AMENDMENT TO THE SCHEDULE PERTAINING TO ANY
NEW OR EXISTING FUND SHALL NOT BE DEEMED TO AFFECT THE INTEREST OF ANY OTHER
FUND AND SHALL NOT REQUIRE THE APPROVAL OF THE SHAREHOLDERS OF ANY OTHER FUND.
B. SUCH FEE SHALL BE COMPUTED AND ACCRUED DAILY. UPON TERMINATION OF THIS
AGREEMENT BEFORE THE END OF ANY CALENDAR MONTH, THE FEE FOR SUCH PERIOD SHALL BE
PRORATED. FOR PURPOSES OF CALCULATING THE ADVISOR'S FEE, THE DAILY VALUE OF A
FUND'S NET ASSETS SHALL BE COMPUTED BY THE SAME METHOD AS THE FUND USES TO
COMPUTE THE VALUE OF ITS NET ASSETS IN CONNECTION WITH THE DETERMINATION OF THE
NET ASSET VALUE OF ITS SHARES.
C. THE ADVISOR RESERVES THE RIGHT (I) TO WAIVE ALL OR PART OF ITS FEE AND
ASSUME EXPENSES OF A FUND AND (II) TO MAKE PAYMENTS TO BROKERS AND DEALERS IN
CONSIDERATION OF THEIR PROMOTIONAL OR ADMINISTRATIVE SERVICES.
5. ACTIVITIES OF THE ADVISOR. THE SERVICES OF THE ADVISOR TO THE TRUST
HEREUNDER ARE NOT TO BE DEEMED EXCLUSIVE, AND THE ADVISOR SHALL BE FREE TO
RENDER SIMILAR SERVICES TO OTHERS. IT IS UNDERSTOOD THAT TRUSTEES AND OFFICERS
OF THE TRUST ARE OR MAY BECOME INTERESTED IN THE ADVISOR AS STOCKHOLDERS,
OFFICERS, OR OTHERWISE, AND THAT STOCKHOLDERS AND OFFICERS OF THE ADVISOR ARE OR
MAY BECOME SIMILARLY INTERESTED IN THE TRUST, AND THAT THE ADVISOR MAY BECOME
INTERESTED IN THE TRUST AS A SHAREHOLDER OR OTHERWISE.
6. USE OF NAMES. THE TRUST SHALL NOT USE THE NAME OF THE ADVISOR IN ANY
PROSPECTUS, SALES LITERATURE OR OTHER MATERIAL RELATING TO THE TRUST IN ANY
MANNER NOT APPROVED PRIOR THERETO BY THE ADVISOR; PROVIDED, HOWEVER, THAT THE
ADVISOR SHALL APPROVE ALL USES OF ITS NAME WHICH MERELY REFER IN ACCURATE TERMS
TO ITS APPOINTMENT HEREUNDER OR WHICH ARE REQUIRED BY THE SEC; AND, PROVIDED,
FURTHER, THAT IN NO EVENT SHALL SUCH APPROVAL BE UNREASONABLY WITHHELD. THE
ADVISOR SHALL NOT USE THE NAME OF THE TRUST OR ANY TRUST IN ANY MATERIAL
RELATING TO THE ADVISOR IN ANY MANNER NOT APPROVED PRIOR THERETO BY THE TRUST;
PROVIDED, HOWEVER, THAT THE TRUST SHALL APPROVE ALL USES OF ITS NAME WHICH
MERELY REFER IN ACCURATE TERMS TO THE APPOINTMENT OF THE ADVISOR HEREUNDER OR
WHICH ARE REQUIRED BY THE SEC; AND, PROVIDE, FURTHER, THAT IN NO EVENT SHALL
SUCH APPROVAL BE UNREASONABLY WITHHELD.
7. LIABILITY OF THE ADVISOR. ABSENT WILLFUL MISFEASANCE, BAD FAITH, GROSS
NEGLIGENCE, OR RECKLESS DISREGARD OF OBLIGATIONS OR DUTIES HEREUNDER ON THE PART
OF THE ADVISOR, THE ADVISOR SHALL NOT BE SUBJECT TO LIABILITY TO THE TRUST OR TO
ANY SHAREHOLDER OF THE TRUST FOR ANY ACT OR OMISSION IN THE COURSE OF, OR
CONNECTED WITH, RENDERING SERVICES HEREUNDER OR FOR ANY LOSSES THAT MAY BE
SUSTAINED IN THE PURCHASE, HOLDING OR SALE OF ANY SECURITY.
8. FORCE MAJEURE. THE ADVISOR SHALL NOT BE LIABLE FOR DELAYS OR ERRORS
OCCURRING BY REASON OF CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING BUT NOT
LIMITED TO ACTS OF CIVIL OR MILITARY AUTHORITY, NATIONAL EMERGENCIES, WORK
STOPPAGES, FIRE, FLOOD, CATASTROPHE, ACTS OF GOD, INSURRECTION, WAR, RIOT, OR
FAILURE OF COMMUNICATION OR POWER SUPPLY. IN THE EVENT OF EQUIPMENT BREAKDOWNS
BEYOND ITS CONTROL, THE ADVISOR SHALL TAKE REASONABLE STEPS TO MINIMIZE SERVICE
INTERRUPTIONS BUT SHALL HAVE NO LIABILITY WITH RESPECT THERETO.
9. RENEWAL, TERMINATION AND AMENDMENT. THIS AGREEMENT SHALL CONTINUE IN
EFFECT WITH RESPECT TO THE TRUST, UNLESS SOONER TERMINATED AS HEREINAFTER
PROVIDED, THROUGH DECEMBER 31, 1999, AND INDEFINITELY THEREAFTER IF ITS
CONTINUANCE SHALL BE SPECIFICALLY APPROVED AT LEAST ANNUALLY BY VOTE OF THE
HOLDERS OF A MAJORITY OF THE OUTSTANDING VOTING SECURITIES OF THE TRUST OR BY
VOTE OF A MAJORITY OF THE TRUST'S BOARD OF TRUSTEES; AND FURTHER PROVIDED THAT
SUCH CONTINUANCE IS ALSO APPROVED ANNUALLY BY THE VOTE OF A MAJORITY OF THE
TRUSTEES WHO ARE NOT PARTIES TO THIS AGREEMENT OR INTERESTED PERSONS OF THE
ADVISOR, CAST IN PERSON AT A MEETING CALLED FOR THE PURPOSE OF VOTING ON SUCH
APPROVAL, OR AS ALLOWED BY LAW. THIS AGREEMENT MAY BE TERMINATED AT ANY TIME,
WITHOUT PAYMENT OF ANY PENALTY, BY THE TRUST'S BOARD OF TRUSTEES OR BY A VOTE OF
THE MAJORITY OF THE OUTSTANDING VOTING SECURITIES OF THE TRUST UPON 60 DAYS'
PRIOR WRITTEN NOTICE TO THE ADVISOR AND BY THE ADVISOR UPON 60 DAYS' PRIOR
WRITTEN NOTICE TO THE TRUST. THIS AGREEMENT MAY BE AMENDED AT ANY TIME BY THE
PARTIES, SUBJECT TO APPROVAL BY THE TRUST'S BOARD OF TRUSTEES AND, IF REQUIRED
BY APPLICABLE SEC RULES AND REGULATIONS, A VOTE OF A MAJORITY OF THE TRUST'S
OUTSTANDING VOTING SECURITIES. THIS AGREEMENT SHALL TERMINATE AUTOMATICALLY IN
THE EVENT OF ITS ASSIGNMENT. THE TERMS "ASSIGNMENT" AND "VOTE OF A MAJORITY OF
THE OUTSTANDING VOTING SECURITIES" SHALL HAVE THE MEANING SET FORTH FOR SUCH
TERMS IN THE 1940 ACT.
10. SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT SHALL BE HELD OR MADE
INVALID BY A COURT DECISION, STATUTE, RULE OR OTHERWISE, THE REMAINDER OF THIS
AGREEMENT SHALL NOT BE AFFECTED THEREBY.
11. MISCELLANEOUS. EACH PARTY AGREES TO PERFORM SUCH FURTHER ACTIONS AND
EXECUTE SUCH FURTHER DOCUMENTS AS ARE NECESSARY TO EFFECTUATE THE PURPOSES
HEREOF. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF MARYLAND. THE CAPTIONS IN THIS AGREEMENT
ARE INCLUDED FOR CONVENIENCE ONLY AND IN NO WAY DEFINE OR DELIMIT ANY OF THE
PROVISIONS HEREOF OR OTHERWISE AFFECT THEIR CONSTRUCTION OR EFFECT.
IN WITNESS WHEREOF, THE PARTIES HAVE DULY EXECUTED THIS AGREEMENT AS OF THE
DATE FIRST WRITTEN ABOVE.
THE XXXXXXX FUND
BY:
TITLE:
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
BY:
TITLE:
INVESTMENT ADVISORY AGREEMENT
XXXXXXX ASSET MANAGEMENT COMPANY, INC.
THE XXXXXXX FUND
SCHEDULE A
AS COMPENSATION PURSUANT TO SECTION 4 OF THE INVESTMENT ADVISORY AGREEMENT
BETWEEN XXXXXXX ASSET MANAGEMENT COMPANY, INC. (THE "ADVISOR") AND THE XXXXXXX
FUND DATED MARCH 1, 1999, THE ADVISOR IS ENTITLED TO RECEIVE AN ANNUAL ADVISORY
FEE (THE "FEE") AS SHOWN BELOW. THE FEE SHALL BE COMPUTED DAILY AND PAYABLE
MONTHLY, BASED ON THE AVERAGE DAILY NET ASSETS OF A FUND.
TCF INCOME FUND 0.40%
TCF NEW VISION SMALL CAP FUND 0.75%
