Exhibit d
FORM OF
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
XXXXX XXXXXX TRUST II
AMENDED AND RESTATED MANAGEMENT AGREEMENT, dated as of ______ __, ____,
by and between Xxxxx Xxxxxx Trust II, a Massachusetts business trust (the
"Trust"), and Citi Fund Management Inc., a Delaware corporation ("Citi
Management" or the "Manager").
W I T N E S S E T H:
WHEREAS, the Trust engages in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (collectively with the rules and regulations promulgated
thereunder and any exemptive orders thereunder, the "1940 Act"), and
WHEREAS, the Trust wishes to engage Citi Management to provide certain
management services for the series of the Trust designated in Schedule A annexed
hereto (the "Funds"), and Citi Management is willing to provide such management
services for the Funds on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of Manager. (a) Citi Management shall act as the Manager for
each Fund and as such shall furnish continuously an investment program and shall
determine from time to time what securities shall be purchased, sold or
exchanged and what portion of the assets of each Fund shall be held uninvested,
subject always to the restrictions of the Trust's Amended and Restated
Declaration of Trust, dated as of September 28, 2001, and By-Laws, as each may
be amended and restated from time to time (respectively, the "Declaration" and
the "By-Laws"), the provisions of the 1940 Act, and the then-current
Registration Statement of the Trust with respect to each Fund. The Manager shall
also make recommendations as to the manner in which voting rights, rights to
consent to corporate action and any other rights pertaining to each Fund's
portfolio securities shall be exercised. Should the Board of Trustees of the
Trust at any time, however, make any definite determination as to investment
policy applicable to a Fund 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in such notice or until similarly notified that such determination has been
revoked.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 each 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
securities for the Fund's account with the 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 or any subcustodian of the Fund as to deliveries
of securities and payments of cash for the account of the Fund. In connection
with the selection of such brokers or dealers and the placing of such orders,
brokers or dealers may be selected who also provide brokerage and research
services (as those terms are defined in Section 28(e) of the Securities Exchange
Act of 1934) to the Funds and/or the other accounts over which the Manager or
its affiliates exercise investment discretion. The Manager is authorized to pay
a broker or dealer who provides such brokerage and research services a
commission for executing a portfolio transaction for a Fund which is in excess
of the amount of commission another broker or dealer would have charged for
effecting that transaction if the Manager determines in good faith that such
amount of commission is reasonable in relation to the value of the brokerage and
research services provided by such broker or dealer. This determination may be
viewed in terms of either that particular transaction or the overall
responsibilities which the Manager and its affiliates have with respect to
accounts over which they exercise investment discretion. In making purchases or
sales of securities or other property for the account of a Fund, the Manager may
deal with itself or with the Trustees of the Trust or the Trust's underwriter or
distributor or with its or their respective affiliates, or affiliates of
affiliates, to the extent such actions are permitted by the 1940 Act. In
providing the services and assuming the obligations set forth herein, the
Manager may employ, at its own expense, or may request that the Trust employ at
each Fund's expense, one or more subadvisers; provided that in each case the
Manager shall supervise the activities of each subadviser. Any agreement between
the Manager and a subadviser shall be subject to the renewal, termination and
amendment provisions applicable to this Agreement. Any agreement between the
Trust on behalf of a Fund and a subadviser may be terminated by the Manager at
any time on not more than 60 days' nor less than 30 days' written notice to the
Trust and the subadviser. To the extent authorized by the Board of Trustees and
subject to applicable provisions of the 1940 Act, the investment program to be
provided hereunder may entail the investment of all or a portion of the assets
of a Fund in one or more investment companies.
(b) Subject to the direction and control of the Board of Trustees of
the Trust, Citi Management shall perform such administrative and management
services as may from time to time be reasonably requested by the Trust with
respect to each Fund, which shall include without limitation: (i) providing
office space, equipment and clerical personnel necessary for maintaining the
organization of the Trust and each Fund and for performing the administrative
and management functions herein set forth; (ii) supervising the overall
administration of each Fund, including negotiation of contracts and fees with
and the monitoring of performance and xxxxxxxx of the Fund's transfer agent,
shareholder servicing agents, custodian and other independent contractors or
agents; and (iii) arranging for maintenance of books and records of the Trust
with respect to each Fund. Notwithstanding the foregoing, Citi Management shall
not be deemed to have assumed any duties with respect to, and shall not be
responsible for, the distribution of shares of beneficial interest in any Fund,
nor shall the Manager be deemed to have assumed or have any responsibility with
respect to functions specifically assumed by any transfer agent, fund accounting
agent, custodian or shareholder servicing agent of the Trust or any Fund. In
providing administrative and management services as set forth herein, the
Manager may, at its own expense, employ one or more subadministrators; provided
that the Manager shall remain fully responsible for the performance of all
administrative and management duties set forth herein and shall supervise the
activities of each subadministrator.
2. Allocation of Charges and Expenses. Citi Management shall furnish at
its own expense all necessary services, facilities and personnel in connection
with its responsibilities under Section 1 above. Except as provided in the
foregoing sentence, it is understood that the Trust will pay from the assets of
each Fund all of its own expenses allocable to that Fund including, without
limitation, organization costs of the Fund; compensation of Trustees who are not
"affiliated persons" of Citi Management; governmental fees; interest charges;
brokerage fees and commissions; loan commitment fees; taxes; membership dues in
industry associations allocable to the Trust; fees and expenses of independent
auditors, legal counsel and any transfer agent, distributor, shareholder
servicing agent, service agent, registrar or dividend disbursing agent of the
Trust; expenses of issuing and redeeming shares of beneficial interest and
servicing shareholder accounts; expenses of preparing, typesetting, printing and
mailing prospectuses, statements of additional information, shareholder reports,
notices, proxy statements and reports to governmental officers and commissions
and to existing shareholders of the Fund; expenses connected with the execution,
recording and settlement of security transactions; insurance premiums; fees and
expenses of the custodian for all services to the Fund, including safekeeping of
funds and securities and maintaining required books and accounts; expenses of
calculating the net asset value of the Fund (including but not limited to the
fees of independent pricing services); expenses of meetings of the Fund's
shareholders; expenses relating to the registration and qualification of shares
of the Fund; and such non-recurring or extraordinary expenses as may arise,
including those relating to actions, suits or proceedings to which the Trust on
behalf of the Fund may be a party and the legal obligation which the Trust may
have to indemnify its Trustees and officers with respect thereto.
3. Compensation of Manager. For the services to be rendered and the
facilities to be provided by the Manager hereunder, the Trust shall pay to the
Manager from the assets of each Fund a management fee computed daily and paid
monthly at an annual rate equal to the lesser of (i) that percentage of that
Fund's average daily net assets for the Fund's then-current fiscal year set
forth opposite the Fund's name on Schedule A annexed hereto (the "Aggregate
Management Fee"), minus that Fund's Aggregate Subadviser Fee (as defined below),
if any, and (ii) the difference between that Fund's Aggregate Management Fee for
the Fund's then-current fiscal year and the aggregate management fees allocated
to that Fund for the Fund's then-current fiscal year from the registered
investment company portfolios in which it invests (for which the Manager or an
affiliate serves as investment adviser). To the extent that any Fund's Aggregate
Subadviser Fee exceeds that Fund's Aggregate Management Fee, the Manager shall
pay such amount to the applicable subadvisers on the Fund's behalf. A Fund's
Aggregate Subadviser Fee is the aggregate amount payable by that Fund to
subadvisers pursuant to agreements between the Trust on behalf of the Fund and
the subadvisers. If the Manager provides services hereunder for less than the
whole of any period specified in this Section 3, the compensation to the Manager
shall be accordingly adjusted and prorated.
4. Covenants of Manager. The Manager agrees that it will not deal with
itself, or with the Trustees of the Trust or the Trust's principal underwriter
or distributor, as principals in making purchases or sales of securities or
other property for the account of a Fund, except as permitted by the 1940 Act,
and will comply with all other provisions of the Declaration and By-Laws and the
then-current Registration Statement applicable to each Fund relative to the
Manager and its directors and officers.
5. Limitation of Liability of Manager. Citi Management 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 execution of securities
transactions for a 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 Section 5, the term
"Citi Management" shall include directors, officers and employees of the Manager
as well as the Manager itself.
6. Activities of Manager. The services of the Manager to the Funds are
not to be deemed to be exclusive, the Manager being free to render investment
advisory, administrative and/or other services to others. It is understood that
Trustees, officers, and shareholders of the Trust are or may be or may become
interested in the Manager, as directors, officers, employees, or otherwise and
that directors, officers and employees of the Manager are or may become
similarly interested in the Trust and that the Manager may be or may become
interested in the Trust as a shareholder or otherwise.
7. Duration, Termination and Amendments of this Agreement. This
Agreement shall become effective as of the day and year first above written,
shall govern the relations between the parties hereto thereafter and shall
remain in force for a period of two years from its effectiveness, on which date
it will terminate unless its continuance with respect to a Fund after that date
is "specifically approved at least annually" (a) by the vote of a majority of
the Trustees of the Trust who are not "interested persons" of the Trust or of
Citi Management at a meeting specifically called for the purpose of voting on
such approval, and (b) by the Board of Trustees of the Trust or by "vote of a
majority of the outstanding voting securities" of the Fund.
This Agreement may be terminated at any time with respect to a Fund
without the payment of any penalty by the Trustees or by the "vote of a majority
of the outstanding voting securities" of the Fund, or by the Manager, in each
case on not more than 60 days' nor less than 30 days' written notice to the
other party. This Agreement shall automatically terminate in the event of its
"assignment."
This Agreement may be amended with respect to a Fund only if such
amendment is approved by the "vote of a majority of the outstanding voting
securities" of the Fund (except for any such amendment as may be effected in the
absence of such approval without violating the 1940 Act).
The terms "specifically approved at least annually," "vote of a
majority of the outstanding voting securities," "assignment," "affiliated
person," and "interested persons," when used in this Agreement, shall have the
respective meanings specified in, and shall be construed in a manner consistent
with, the 1940 Act, subject, however, to such exemptions as may be granted by
the Securities and Exchange Commission under said Act.
8. Licenses. The Trust hereby agrees, on behalf of each Fund, to
reimburse the Manager for any and all reasonable costs incurred by the Manager
relating to the acquisition and retention of licenses to be used in connection
with the management of that Fund.
9. Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
10. Use of Name. The Trust hereby acknowledges that any and all rights
in or to the name "Citi" which exist on the date of this Agreement or which may
arise hereafter are, and under any and all circumstances shall continue to be,
the sole property of the Manager; that the Manager may assign any or all of such
rights to another party or parties without the consent of the Trust; and that
the Manager may permit other parties, including other investment companies, to
use the word "Citi" in their names. If the Manager, or its assignee as the case
may be, ceases to serve as the manager of the Trust, the Trust hereby agrees to
take promptly any and all actions which are necessary or desirable to change its
name and those of each of its series or classes so as to delete the word "Citi."
Each party acknowledges and agrees that all obligations of the Trust
under this Agreement are binding only with respect to the applicable Fund; that
any liability of the Trust under this Agreement, or in connection with the
transactions contemplated herein, shall be discharged only out of the assets of
that Fund; and that no other series of the Trust shall be liable with respect to
this Agreement or in connection with the transactions contemplated herein.
The undersigned officer of the Trust has executed this Agreement not
individually, but as an officer under the Declaration, and the obligations of
this Agreement are not binding upon any of the Trustees, officers or
shareholders of the Trust individually.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
XXXXX XXXXXX TRUST II CITI FUND
on behalf of the series listed MANAGEMENT INC.
on Schedule A
By: _________________________ By: _______________________________
Title: ______________________ Title: ___________________________
Schedule A
Aggregate Management Fee (expressed as a
percentage of
each Fund's aggregate net assets
Fund for its then-current fiscal year)
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Xxxxx Xxxxxx Diversified Large Cap
Growth Fund 0.90%
Xxxxx Xxxxxx Small Cap Growth
Opportunities Fund 1.10%
Xxxxx Xxxxxx International Large Cap
Fund (Added April 30, 2002) 0.85%
