[FORM OF]
X.X. XXXXXX FUNDS
INVESTMENT ADVISORY AGREEMENT
Agreement, made this 7th day of September, 2001, between X.X. Xxxxxx
Funds (the "Trust"), a trust organized under the laws of the Commonwealth of
Massachusetts and X.X. Xxxxxx Investment Management, Inc., a Delaware
corporation (the "Advisor"),
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Trust desires to retain the Advisor to render investment
advisory services to the Trust's series set forth in Schedule A (each, a
"Portfolio") as agreed to from time to time between the Trust and the
Advisor, and the Advisor is willing to render such services;
NOW, THEREFORE, this Agreement
W I T N E S S E T H:
that in consideration of the premises and mutual promises hereinafter set
forth, the parties hereto agree as follows:
1. The Trust hereby appoints the Advisor to act as investment adviser to
the Portfolios for the period and on the terms set forth in this Agreement.
The Advisor accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. Subject to the general supervision of the Trustees of the Trust, the
Advisor shall manage the investment operations of each Portfolio and the
composition of the Portfolio's holdings of securities and investments,
including cash, the purchase, retention and disposition thereof and
agreements relating thereto, in accordance with the Portfolio's investment
objectives and policies as stated in the Trust's registration statement on
Form N-1A, as such may be amended from time to time (the "Registration
Statement"), with respect to the Portfolio, under the Investment Company Act
of 1940, as amended (the "1940 Act"), and subject to the following
understandings:
(a) the Advisor shall furnish a continuous investment program for
each Portfolio and determine from time to time what investments or
securities will be purchased, retained, sold or lent by the Portfolio,
and what portion of the assets will be invested or held uninvested as
cash;
(b) the Advisor shall use the same skill and care in the management
of each Portfolio's investments as it uses in the administration of
other accounts for which it has investment responsibility as agent;
(c) the Advisor, in the performance of its duties and obligations
under this Agreement, shall act in conformity with the Trust's
Declaration of Trust (such Declaration of Trust, as presently in
effect and as amended from time to time, is herein called the
"Declaration of Trust"), the Trust's By-Laws (such By-Laws, as
presently in
effect and as amended from time to time, are herein called the
"By-Laws") and the Registration Statement and with the instructions
and directions of the Trustees of the Trust and will conform to and
comply with the requirements of the 1940 Act and all other applicable
federal and state laws and regulations;
(d) the Advisor shall determine the securities to be purchased,
sold or lent by each Portfolio and as agent for the Portfolio will
effect portfolio transactions pursuant to its determinations either
directly with the issuer or with any broker and/or dealer in such
securities; in placing orders with brokers and/or dealers the Advisor
intends to seek best price and execution for purchases and sales; the
Advisor shall also determine whether the Portfolio shall enter into
repurchase or reverse repurchase agreements;
On occasions when the Advisor deems the purchase or sale of a
security to be in the best interest of one of the Portfolios as well
as other customers of the Advisor, including any other of the Portfolios,
the Advisor may, to the extent permitted by applicable laws and
regulations, but shall not be obligated to, aggregate the securities to
be so sold or purchased in order to obtain best execution, including
lower brokerage commissions, if applicable. In such event, allocation
of the securities so purchased or sold, as well as the expenses incurred
in the transaction, will be made by the Advisor in the manner it
considers to be the most equitable and consistent with its fiduciary
obligations to the Portfolio;
(e) the Advisor shall maintain books and records with respect to
each Portfolio's securities transactions and shall render to the
Trust's Trustees such periodic and special reports as the Trustees may
reasonably request; and
(f) the investment management services of the Advisor to any of the
Portfolios under this Agreement are not to be deemed exclusive, and the
Advisor shall be free to render similar services to others.
3. The Trust has delivered copies of each of the following documents to
the Advisor and will promptly notify and deliver to it all future amendments
and supplements, if any:
(a) The Declaration of Trust;
(b) The By-Laws;
(c) Certified resolutions of the Trustees of the Trust authorizing
the appointment of the Advisor and approving the form of this Agreement;
(d) The Trust's Notification of Registration on Form N-8A and
Registration Statement as filed with the Securities and Exchange
Commission (the "Commission").
4. The Advisor shall keep each Portfolio's books and records required
to be maintained by it pursuant to paragraph 2(e). The Advisor agrees that
all records which it maintains for any Portfolio are the property of the
Trust and it will promptly surrender any of such records to the Trust upon
the Trust's request. The Advisor further agrees to preserve for the periods
prescribed by Rule 31a-2 of the Commission under the 1940 Act any such
records as are required to be maintained by the Advisor with respect to any
Portfolio by Rule 31a-1 of the Commission under the 1940 Act.
5. During the term of this Agreement the Advisor will pay all expenses
incurred by it in connection with its activities under this Agreement, other
than the cost of securities and investments purchased for a Portfolio
(including taxes and brokerage commissions, if any).
6. For the services provided and the expenses borne pursuant to this
Agreement, each Portfolio will pay to the Advisor as full compensation
therefor a fee at an annual rate set forth on Schedule A attached hereto.
Such fee will be computed daily and payable as agreed by the Trust and the
Advisor, but no more frequently than monthly.
7. The Advisor shall not be liable for any error of judgment or mistake
of law or for any loss suffered by any Portfolio in connection with the
matters to which this Agreement relates, except a loss resulting from a
breach of fiduciary duty with respect to the receipt of compensation for
services (in which case any award of damages shall be limited to the period
and the amount set forth in Section 36(b)(3) of the 0000 Xxx) or a loss
resulting from willful misfeasance, bad faith or gross negligence on its part
in the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
8. This Agreement shall continue in effect with respect to each
Portfolio for a period of more than two years from the Portfolio's
commencement of investment operations only so long as such continuance is
specifically approved at least annually in conformity with the requirements
of the 1940 Act; provided, however, that this Agreement may be terminated
with respect to any Portfolio at any time, without the payment of any
penalty, by vote of a majority of all the Trustees of the Trust or by vote of
a majority of the outstanding voting securities of that Portfolio on 60 days'
written notice to the Advisor, or by the Advisor at any time, without the
payment of any penalty, on 90 days' written notice to the Trust. This
Agreement will automatically and immediately terminate in the event of its
"assignment" (as defined in the 1940 Act).
9. The Advisor shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein
or authorized by the Trustees of the Trust from time to time, have no
authority to act for or represent the Trust in any way or otherwise be
deemed an agent of the Portfolios.
10. This Agreement may be amended, with respect to any Portfolio, by
mutual consent, but the consent of the Trust must be approved (a) by vote of
a majority of those Trustees of the Trust 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 amendment, and (b) by vote
of a majority of the outstanding voting securities of the Portfolio.
11. Notices of any kind to be given to the Advisor by the Trust shall
be in writing and shall be duly given if mailed or delivered to the Advisor
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Funds Management,
or at such other address or to such other individual as shall be specified by
the Advisor to the Trust. Notices of any kind to be given to the Trust by
the Advisor shall be in writing and shall be duly given if mailed or
delivered to the Trust c/o or at such other address
or to such other individual as shall be specified by the Trust to the Advisor.
12. The Trustees of the Trust have authorized the execution of this
Agreement in their capacity as Trustees and not individually, and the Advisor
agrees that neither the Trustees
nor any officer or employee of the Trust nor any Portfolio's investors nor
any representative or agent of the Trust or of the Portfolio(s) shall be
personally liable upon, or shall resort be had to their private property for
the satisfaction of, obligations given, executed or delivered on behalf of or
by the Trust or the Portfolio(s), that such Trustees, officers, employees,
investors, representatives and agents shall not be personally liable
hereunder, and that it shall look solely to the trust property for the
satisfaction of any claim hereunder.
13. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the 11th day of May, 1998.
X.X. XXXXXX FUNDS
By:
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Vice President and Assistant
Secretary
X.X. XXXXXX INVESTMENT
MANAGEMENT, INC.
By:
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Vice President
