Exhibit d(1)
AMENDED AND RESTATED
MANAGEMENT AGREEMENT
AMENDED AND RESTATED MANAGEMENT AGREEMENT, dated as of January 1, 2002
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 Manager to provide certain
management services for the series of the Trust designated in Schedule A
annexed hereto (the "Funds"), and Manager 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) Manager 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 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similarly notified that such determination has been revoked.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, Manager 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, Manager 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. Manager 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 Manager; 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 Trustees and 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. Manager 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
Manager 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 "Xxxxx Xxxxxx" 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 "Xxxxx Xxxxxx" 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 "Xxxxx Xxxxxx".
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: /s/Xxxxx X. XxXxxxxx By: /s/Xxxxx X. XxXxxxxx
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Title: President Title: Director
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Schedule A
Aggregate Management Fee
(expressed as a percentage
of each Fund's aggregate
net assets for its
Fund then-current fiscal year)
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Xxxxx Xxxxxx Diversified Large Cap Growth Fund 0.90%
Xxxxx Xxxxxx Small Cap Growth Fund 1.10%
Added April 30, 2002:
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Xxxxx Xxxxxx International Large Cap Fund 0.85%
Added March 14, 2003:
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Xxxxx Xxxxxx Short Term Municipal Bond Portfolio 0.45%
