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Exhibit 99.B5.1
MANAGEMENT AGREEMENT
TO: XXXXXXX INVESTMENT COUNSEL, INC.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Dear Sirs:
Xxxxxxx Investment Mutual Funds Trust (hereinafter referred to as the
"Trust") herewith confirms our agreement with you.
The Trust has been organized to engage in the business of an investment
company. The Trust currently offers two series of shares to investors: the
Xxxxxxx Investment Growth Fund and the Xxxxxxx Investment Fixed Income Fund. The
Trust's Board of Trustees (the "Board") is authorized from time to time, as it
deems necessary or desirable, to establish and designate additional series of
shares.
You have been selected to act as the sole investment adviser of the
Trust and to provide certain other services, as more fully set forth below, and
you are willing to act as such investment adviser and to perform such services
under the terms and conditions hereinafter set forth. Accordingly, the Trust
agrees with you as follows upon the date of execution of this Agreement.
1. ADVISORY SERVICES
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You will regularly provide the Trust with such investment
advice as you in your discretion deem advisable and will furnish a continuous
investment program for each of the Trust's series consistent with the respective
series' investment objectives and policies. You will determine the securities to
be purchased for each series of the Trust, the portfolio securities to be held
or sold by each series of the Trust and the portion of each series' assets to be
held uninvested, subject always to to the series' investment objectives,
policies and restrictions, as each of the same shall be from time to time in
effect, and subject further to such policies and instructions as the Board may
from time to time establish. You will advise and assist the officers of the
Trust in taking such steps as are necessary or appropriate to carry out the
decisions of the Board and the appropriate committees of the Board regarding the
conduct of the business of the Trust.
2. ALLOCATION OF CHARGES AND EXPENSES
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You will pay all operating expenses of the Trust, including
the compensation and expenses of any trustees, officers and employees of the
Trust and of any other persons rendering any services to the Trust; clerical and
shareholder service staff salaries; office space and other
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office expenses; fees and expenses incurred by the Trust in connection with
membership in investment company organizations; legal, auditing and accounting
expenses; non-organizational expenses of registering shares under federal and
state securities laws; insurance expenses; fees and expenses of the custodian,
transfer agent, dividend disbursing agent, shareholder service agent, plan
agent, administrator, accounting and pricing services agent and underwriter of
the Trust; expenses, including clerical expenses, of issue, sale, redemption or
repurchase of shares of the Trust; the cost of preparing and distributing
reports and notices to shareholders, the cost of printing or preparing
prospectuses and statements of additional information for delivery to the
Trust's current and prospective shareholders; the cost of printing or preparing
stock certificates or any other documents, statements or reports to
shareholders; expenses of shareholders' meetings and proxy solicitations;
pursuant to the Trust's Distribution and Service Plan, advertising, promotion
and other expenses incurred directly or indirectly in connection with the sale
or distribution of the Trust's shares; and all other operating expenses not
specifically assumed by the Trust.
The Trust will pay all brokerage fees and commissions, taxes,
interest, expenses incurred by the Trust in connection with the organization and
initial registration of shares of any series of the Trust, and such
extraordinary or non-recurring expenses as may arise, including litigation to
which the Trust may be a party and indemnification of the Trust's trustees and
officers with respect thereto. You may obtain reimbursement from the Trust, at
such time or times as you may determine in your sole discretion, for any of the
expenses advanced by you, which the Trust is obligated to pay, and such
reimbursement shall not be considered to be part of your compensation pursuant
to this Agreement.
3. COMPENSATION OF THE ADVISER
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For all of the services to be rendered and payments to be made
as provided in this Agreement, each series of the Trust will pay you, as of the
last day of each month, a fee at the annual rate of 1.30% of the average value
of the daily net assets of the Xxxxxxx Investment Growth Fund series and 1.15%
of the average value of the daily net assets of the Xxxxxxx Investment Fixed
Income Fund series.
Your compensation with respect to each additional series of
the Trust established after the date of this Agreement shall be the fee
described above unless the Board of Trustees, including a majority of the
Trustees who are not interested persons as defined in the Investment Company Act
of 1940 of you or the Trust, determines otherwise. If the Board of Trustees
adopts a different fee arrangement for an additional series, the fee arrangement
shall be approved pursuant to the provisions of Section 15 of the Investment
Company Act of 1940.
The average value of the daily net assets of a series shall be
determined pursuant to the applicable provisions of the Declaration of Trust of
the Trust or a resolution of the Board, if required. If, pursuant to such
provisions, the determination of net asset value of a series is suspended for
any particular business day, then for the purposes of this paragraph, the value
of
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the net assets of the series as last determined shall be deemed to be the
value of the net assets as of the close of the business day, or as of such other
time as the value of the series' net assets may lawfully be determined, on that
day. If the determination of the net asset value of a series has been suspended
for a period including such month, your compensation payable at the end of such
month shall be computed on the basis of the value of the net assets of the
series as last determined (whether during or prior to such month).
4. EXECUTION OF PURCHASE AND SALE ORDERS
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In connection with purchases or sales of portfolio securities
for the account of each series of the Trust, it is understood that you will
arrange for the placing of all orders for the purchase and sale of portfolio
securities for the account with brokers or dealers selected by you, subject to
review of this selection by the Board from time to time. You will be responsible
for the negotiation and the allocation of principal business and portfolio
brokerage. In the selection of such brokers or dealers and the placing of such
orders, you are directed at all times to seek for the series the best
qualitative execution, taking into account such factors as price (including the
applicable brokerage commission or dealer spread), the execution capability,
financial responsibility and responsiveness of the broker or dealer and the
brokerage and research services provided by the broker or dealer.
You should generally seek favorable prices and commission
rates that are reasonable in relation to the benefits received. In seeking best
qualitative execution, you are authorized to select brokers or dealers who also
provide brokerage and research services (as those terms are defined in Section
28(e) of the Securities and Exchange Act of 1934) to the Trust and/or the other
accounts over which you exercise investment discretion. You are authorized to
pay a broker or dealer who provides such brokerage and research services a
commission for executing a Trust portfolio transaction which is in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction if you determine in good faith that the amount of the
commission is reasonable in relation to the value of the brokerage and research
services provided by the executing broker or dealer. The determination may be
viewed in terms of either a particular transaction or your overall
responsibilities with respect to the Trust and to accounts over which you
exercise investment discretion. The Trust and you understand and acknowledge
that, although the information may be useful to the Trust and you, it is not
possible to place a dollar value on such information. The Board shall
periodically review the commissions paid by the Trust to determine if the
commissions paid over representative periods of time were reasonable in relation
to the benefits to the Trust.
Consistent with the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., and subject to seeking best qualitative
execution as described above, you may give consideration to sales of shares of
the Trust as a factor in the selection of brokers and dealers to execute Trust
portfolio transactions.
Subject to the provisions of the Investment Company Act of
1940, as amended,
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and other applicable law, you or any of your affiliates may retain compensation
in connection with effecting the Trust's portfolio transactions, including
transactions effected through others. If any occasion should arise in which you
give any advice to clients of yours concerning the shares of the Trust, you will
act solely as investment counsel for such client and not in any way on behalf of
the Trust. Your services to the Trust pursuant to this Agreement are not to be
deemed to be exclusive and it is understood that you may render investment
advice, management and other services to others, including other registered
investment companies.
5. LIMITATION OF LIABILITY OF ADVISER
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You may rely on information reasonably believed by you to be
accurate and reliable. Except as may otherwise be required by the Investment
Company Act of 1940 or the rules thereunder, neither you nor your shareholders,
officers, directors, employees, agents, control persons or affiliates of any
thereof shall be subject to any liability for, or any damages, expenses or
losses incurred by the Trust in connection with, any error of judgment, mistake
of law, any act or omission connected with or arising out of any services
rendered under or payments made pursuant to this Agreement or any other matter
to which this Agreement relates, except by reason of willful misfeasance, bad
faith or gross negligence on the part of any such persons in the performance of
your duties under this Agreement or by reason of reckless disregard by any of
such persons of your obligations and duties under this Agreement.
Any person, even though also a director, officer, employee,
shareholder or agent of you, who may be or become an officer, director, trustee,
employee or agent of the Trust, shall be deemed, when rendering services to the
Trust or acting on any business of the Trust (other than services or business in
connection with your duties hereunder), to be rendering such services to or
acting solely for the Trust and not as a director, officer, employee,
shareholder or agent of you, or one under your control or direction, even though
paid by you.
6. DURATION AND TERMINATION OF THIS AGREEMENT
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This Agreement shall take effect on the date of its execution
and shall remain in force for a period of two (2) years from the date of its
execution with respect to each of the Trust's series established on the date of
such execution and, with respect to any additional series registered after the
date of execution, until the next anniversary date of the Agreement following
the date on which such series becomes effectively registered for sale in a
public offering, and from year to year thereafter as to each series of the
Trust's shares, subject to annual approval by (i) The Board or (ii) a vote of a
majority (as defined in the Investment Company Act of 1940) of the outstanding
voting securities of such series, provided that in either event continuance is
also approved by a majority of the trustees who are not "interested persons" as
defined in the Investment Company Act of 1940 of you or the Trust, by a vote
cast in person at a meeting called for the purpose of voting such approval.
If the shareholders of any series of the Trust's shares fail
to approve the
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Agreement in the manner set forth above, upon request of the Board, you will
continue to serve or act in such capacity for the series for the period of time
pending required approval of the Agreement, of a new agreement with you or a
different adviser or other definitive action; provided that the compensation to
be paid by the Trust to you for your services to and payments on behalf of the
series will be equal to the lesser of your actual costs incurred in furnishing
such services and payments or the amount you would have received under this
Agreement for furnishing such services and payments.
This Agreement may, on sixty days written notice, be
terminated with respect to a series at any time without the payment of any
penalty, by the Board, by a vote of a majority of the outstanding voting
securities of the series or by you. This Agreement shall automatically terminate
in the event of its assignment.
7. USE OF NAME
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The Trust and you acknowledge that all rights to the name
"Xxxxxxx Investment" belong to you and that the Trust is being granted a limited
license to use such words in its Trust name or in any series name. In the event
you cease to be the adviser to the Trust, the Trust's right to the use of the
name "Xxxxxxx Investment" shall automatically cease on the thirtieth day
following the termination of this Agreement. The right to the name may also be
withdrawn by you during the term of this Agreement upon thirty (30) days'
written notice by you to the Trust. Nothing contained herein shall impair or
diminish in any respect, your right to use the name "Xxxxxxx Investment" in the
name of or in connection with any other business enterprises with which you are
or may become associated. There is no charge to the Trust for the right to use
this name.
8. AMENDMENT OF THIS AGREEMENT
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No provision of this Agreement may be changed, waived,
discharged or terminated orally, and no amendment of this Agreement shall be
effective until approved by vote of the holders of a majority of the outstanding
voting securities of the series to which the amendment relates and by the Board,
including a majority of the trustees who are not interested persons of you or of
the Trust, case in person at a meeting called for the purpose of voting on such
approval.
9. LIMITATION OF LIABILITY TO TRUST PROPERTY
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The term "Xxxxxxx Investment Mutual Funds Trust" means and
refers to the Trustees from time to time serving under the Trust's Declaration
of Trust as the same may subsequently thereto have been, or subsequently hereto
be, amended. It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the trustees, shareholders, nominees, officers,
agents or employees of the Trust, personally, but bind only the trust property
of the Trust, as provided in the Declaration of Trust of the Trust. The
execution and delivery of
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this Agreement have been authorized by the trustees and shareholders of the
Trust and signed by officers of the Trust, acting as such, and neither such
authorization by such trustees and shareholders nor such execution and delivery
by such officers shall be deemed to have been made by any of them individually
or to impose any liability on any of them personally, but shall bind only the
trust property of the Trust as provided in its Declaration of Trust. A copy of
the Agreement and Declaration of Trust of the Trust is on file with the
Secretary of State of Ohio.
10. SEVERABILITY
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In the event any provision of this Agreement is determined to
be void or unenforceable, such determination shall not affect the remainder of
this Agreement, which shall continue to be in force.
11. QUESTIONS OF INTERPRETATION
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(a) This Agreement shall be governed by the laws of the State
of Ohio.
(b) Any question of interpretation of any term or provision of
this Agreement having a counterpart in or otherwise derived from a term or
provision of the Investment Company Act of 1940, as amended (the "Act") shall be
resolved by reference to such term or provision of the Act and to interpretation
thereof, if any, by the United States courts or in the absence of any
controlling decision of any such court, by rules, regulations or orders of the
Securities and Exchange Commission issued pursuant to said Act. In addition,
where the effect of a requirement of the Act, reflected in any provision of this
Agreement is revised by rule, regulation or order of the Securities and Exchange
Commission, such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
12. NOTICES
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Any notices under this Agreement shall be in writing,
addressed and delivered or mailed postage paid to the other party at such
address as such other party may designate for the receipt of such notice. Until
further notice to the other party, it is agreed that the address of the Trust
and your address for this purpose shall be 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx
00000.
13. COUNTERPARTS
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This Agreement may be in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. BINDING EFFECT
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Each of the undersigned expressly warrants and represents that
he has the full power and authority to sign this Agreement on behalf of the
party indicated, and that his
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signature will operate to bind the party indicated to the foregoing terms.
15. MISCELLANEOUS
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The captions in this Agreement 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 you are in agreement with the foregoing, please sign the
form of acceptance on the accompanying counterpart of this letter and return
such counterpart to the Trust, whereupon this letter shall become a binding
contract upon the date thereof.
Yours very truly,
ATTEST: XXXXXXX INVESTMENT MUTUAL FUNDS TRUST
/s/ By: /s/
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Xxxxx X. Xxxxxxx, Secretary XXXXXXX X. XXXXXXX, President
Dated: December 18, 1992
ACCEPTANCE
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The foregoing Agreement is hereby accepted.
ATTEST: XXXXXXX INVESTMENT MUTUAL FUNDS TRUST
/s/ By:/s/
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Xxxxxxx X. Xxxxxxx, President Xxxxx X. Xxxxxxx, Secretary
Dated: December 18, 1992
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