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Exhibit 99.d
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made 26th day of May, 2000 by and between The Prairie Fund,
a Delaware business trust (the "Trust"), and Xxxxxxxxx Management Associates,
Inc. (the "Adviser").
WHEREAS, the Trust is an open-end, non-diversified management
investment company registered under the Investment Company Act of 1940 (the
"1940 Act"), as amended, and
WHEREAS, the Trust desires to retain the Adviser to render investment
management services with respect to its Investment Assets as the Trust and the
Adviser may agree upon and as are set forth in the attached schedule, and the
Adviser is willing to render such services.
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties hereto agree as follows:
1. DUTIES OF ADVISER. The Trust employs the Adviser to manage the
investment and reinvestment of the assets of the Trust , and to hire (subject
to the approval of the Trust's Board of Trustees and, except as otherwise
permitted under the terms of any exemptive relief obtained in the future by the
Adviser from the Securities and Exchange Commission ("SEC"), or by rule or
regulation, a majority of the outstanding voting securities of the Trust and to
supervise the investment activities of one or more sub-advisers deemed
necessary to carry out the investment program of the Trust, and to continuously
review, supervise and (where appropriate) administer the investment program of
the Trust, to determine in its discretion (where appropriate) the securities to
be purchased or sold, to provide the Trust with records concerning the
Adviser's activities which the Trust is required to maintain, and to render
regular reports to the Trust's officers and Trustees concerning the Adviser's
discharge of the foregoing responsibilities. The retention of a sub-adviser by
the Adviser shall not relieve the Adviser of its responsibilities under this
Agreement.
The Adviser shall discharge the foregoing responsibilities subject to
the control of the Board of Trustees of the Trust and in compliance with such
policies as the Trustees may from time to time establish, and in compliance
with the objectives, policies, and limitations for the Trust set forth in the
Trust's prospectus and statement of additional information as amended from time
to time, and applicable laws and regulations.
The Adviser accepts such employment and agrees, at its own expense, to
render the services and to provide the office space, furnishings and equipment
and the personnel (including any sub-advisers) required by it to perform the
services on the terms and for the compensation provided herein. The Adviser
will not, however, pay for the cost of securities, commodities, and other
investments (including brokerage commissions and other transaction charges, if
any) purchased or sold for the Trust.
2. INVESTMENT TRANSACTIONS. The Adviser is authorized to select the
brokers or dealers that will execute the purchases and sales of securities for
the Trust and is directed to use its best efforts to obtain the best net
results as described from time to time in the Trust's Prospectus and
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Statement of Additional Information. The Adviser will promptly communicate to
the officers and the Trustees of the Trust such information relating to Trust
transactions as they may reasonably request.
It is understood that the Adviser will not be deemed to have acted
unlawfully, or to have breached a fiduciary duty to the Trust or be in breach
of any obligation owing to the Trust under this Agreement, or otherwise, by
reason of its having directed a securities transaction on behalf of the Trust
to a broker-dealer in compliance with the provisions of Section 28(e) of the
Securities Exchange Act of 1934 or as described from time to time by the
Trusts' Prospectus and Statement of Additional Information.
3. COMPENSATION OF THE ADVISER. For the services to be rendered by the
Adviser as provided in Sections 1 and 2 of this Agreement, the Trust shall pay
to the Adviser compensation at the rate specified in the Schedule(s) which are
attached hereto and made a part of this Agreement. Such compensation shall be
paid to the Adviser at the end of each calendar quarter, and calculated by
applying a daily rate, based on the annual percentage rates as specified in the
attached Schedule(s), to the assets. The fee shall be based on the average
daily net assets for the quarter involved (less any assets of Trusts held in
non-interest bearing special deposits with a Federal Reserve Bank). The Adviser
may, in its discretion and from time to time, waive a portion of its fee.
All rights of compensation under this Agreement for services performed
as of the termination date shall survive the termination of this Agreement.
4. OTHER EXPENSES. The Trust shall pay all expenses relating to mailing to
existing shareholders prospectuses, statements of additional information, proxy
solicitation material and shareholder reports. The Investment Adviser will pay
the fees of the Trust's Custodian, Administrator and Transfer Agent, as
described in the Trust's Prospectus.
5. EXCESS EXPENSES. If the expenses for the Trust for any fiscal year
(including fees and other amounts payable to the Adviser, but excluding
interest, taxes, brokerage costs, litigation, and other extraordinary costs) as
calculated every business day would exceed the expense limitations imposed on
investment companies by any applicable statute or regulatory authority of any
jurisdiction in which shares of a Trust are qualified for offer and sale, the
Adviser shall bear such excess cost.
However, the Adviser will not bear expenses of the Trust which would
result in the Trust inability to qualify as a regulated investment company
under provisions of the Internal Revenue Code.
6. REPORTS. The Trust and the Adviser agree to furnish to each other, if
applicable, current prospectuses, proxy statements, reports to shareholders,
certified copies of their financial statements, and such other information with
regard to their affairs as each may reasonably request.
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7. STATUS OF ADVISER. The services of the Adviser to the Trust are not to
be deemed exclusive, and the Adviser shall be free to render similar services
to others so long as its services to the Trust are not impaired thereby. The
Adviser shall 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 in any way or otherwise be deemed an agent of the Trust.
8. CERTAIN RECORDS. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the
1940 Act which are prepared or maintained by the Adviser on behalf of the Trust
are the property of the Trust and will be surrendered promptly to the Trust on
request.
9. LIMITATION OF LIABILITY OF ADVISER. The duties of the Adviser shall be
confined to those expressly set forth herein, and no implied duties are assumed
by or may be asserted against the Adviser hereunder. The Adviser 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 carrying out its duties
hereunder, except a loss resulting from 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, except as may otherwise be provided
under provisions of applicable state law or Federal securities law which cannot
be waived or modified hereby. (As used in this Paragraph 9, the term "Adviser"
shall include directors, officers, employees and other corporate agents of the
Adviser as well as that entity itself.)
10. PERMISSIBLE INTERESTS. Trustees, agents, and shareholders of the Trust
are or may be interested in the Adviser (or any successor thereof) as
directors, partners, officers, or shareholders, or otherwise; directors,
partners, officers, agents, and shareholders of the Adviser are or may be
interested in the Trust as Trustees, shareholders or otherwise; and the Adviser
(or any successor) is or may be interested in the Trust as a shareholder or
otherwise. In addition, brokerage transactions for the Trust may be effected
through affiliates of the Adviser if approved by the Board of Trustees, subject
to the rules and regulations of the SEC.
11. DURATION AND TERMINATION. This Agreement, unless sooner terminated as
provided herein, shall remain in effect until two years from date of execution,
and thereafter, for periods of one year so long as such continuance thereafter
is specifically approved at least annually (a) by the 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 approval, and (b) by the Trustees of the Trust or by vote of
a majority of the outstanding voting securities of the Trust; provided,
however, that if the shareholders of the Trust fail to approve the Agreement as
provided herein, the Adviser may continue to serve hereunder in the manner and
to the extent permitted by the 1940 Act and rules and regulations thereunder.
The foregoing requirement that continuance of this Agreement be "specifically
approved at least annually" shall be construed in a manner consistent with the
1940 Act and the rules and regulations thereunder.
This Agreement may be terminated at any time, without the payment of
any penalty by vote of a majority of the Trustees of the Trust or by vote of a
majority of the outstanding voting securities of the Trust on not less than 30
days nor more than 60 days written notice to the
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Adviser, or by the Adviser 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. Any notice under this
Agreement shall be given in writing, addressed and delivered, or mailed
postpaid, to the other party at any office of such party.
As used in this Section 11, the terms "assignment," "interested
persons," and a "vote of a majority of the outstanding voting securities" shall
have the respective meanings set forth in the 1940 Act and the rules and
regulations thereunder; subject to such exemptions as may be granted by the SEC
under said Act.
12. NOTICE. Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
last address furnished by the other party to the party giving notice: if to the
Trust, 0000 Xxxxxxx Xxxx, #000, Xxxxx Xxxxx, Xxxxxxx 00000.
13. 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.
14. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Florida and the applicable provisions of the 1940 Act. To
the extent that the applicable laws of the State of Florida, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first written above.
THE PRAIRIE FUND
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: President
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XXXXXXXXX MANAGEMENT ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: President
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SCHEDULE A DATED MAY 26, 2000
TO THE
INVESTMENT ADVISORY AGREEMENT DATED MAY 26, 2000
BETWEEN
THE PRAIRIE FUND
AND
XXXXXXXXX MANAGEMENT ASSOCIATES, INC.
Pursuant to Article 3, the Trust shall pay the Adviser compensation at an
annual rate of one percent (1%).
