EX-99.23.d.ii
MANAGEMENT AGREEMENT
TO: Xxxxx Xxxxxxx & Associates Investment Advisors, Inc.
d/b/a Xxxxx Xxxxxxx Capital Management Co.(TM)
00000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Dear Sirs:
Xxxxx Funds (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 several series of shares to investors, one
of which is Xxxxx U.S. Government Fund (the "Fund").
You have been selected to act as the sole investment adviser of the Fund
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 effective upon the date of the execution of this Agreement.
1. ADVISORY SERVICES
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You will regularly provide the Fund with such investment advice as you in
your discretion deem advisable and will furnish a continuous investment program
for the Fund consistent with the Fund's investment objectives and policies. You
will determine the securities to be purchased for the Fund, the portfolio
securities to be held or sold by the Fund and the portion of the Fund's assets
to be held uninvested, subject always to the Fund's 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 Fund.
2. ALLOCATION OF CHARGES AND EXPENSES
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You will pay the compensation and expenses of any persons rendering any
services to the Fund who are officers, directors, stockholders or employees of
your corporation and will make available, without expense to the Fund, the
services of such of your employees as may duly be elected officers or trustees
of the Trust, subject to their individual consent to serve and to any
limitations imposed by law. The compensation and expenses of any officers,
trustees and employees of the Trust who are not officers, directors, employees
or stockholders of your corporation will be paid by the Fund. You may obtain
reimbursement from the Fund, at such time or times as you may determine in your
sole discretion, for any of the expenses advanced by you, which the Fund is
obligated to pay, and such reimbursement shall not be considered to be part of
your compensation pursuant to this Agreement.
The Fund will pay all organizational and operating expenses of the Fund,
including brokerage fees and commissions; taxes or governmental fees; borrowing
costs (such as (a) interest and (b) dividend expenses on securities sold short);
fees and expenses of the non-interested person trustees; clerical
and shareholder service staff salaries; office space and other office expenses;
fees and expenses incurred by the Fund 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,
administrator, accounting and pricing services agent and underwriter of the
Fund; expenses, including clerical expenses, of issue, sale, redemption or
repurchase of shares of the Fund; expenses which the Fund is authorized to pay
pursuant to Rule 12b-1 under the 1940 Act, the cost of preparing, printing and
distributing prospectuses and statements of additional information for delivery
to the Fund's shareholders; the cost of preparing, printing and distributing
notices, statements, reports or other documents to shareholders; expenses of
shareholders' meetings and proxy solicitations; and such extraordinary or
non-recurring expenses as may arise, including litigation to which the Fund may
be a party and indemnification of the Trust's trustees and officers with respect
thereto, or any other expense not specifically described above incurred in the
performance of the Fund's obligations.
3. COMPENSATION OF THE ADVISER
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For all of the services to be rendered by you as provided in this
Agreement, as of the last business day of each month, the Fund will pay you an
annual fee equal to 0.60% of its average daily net assets up to $100 million,
0.50% of its average daily net assets from $100,000,001 to $250 million, 0.45%
of its average daily net assets from $250,000,001 to $500 million, and 0.40% of
its average daily net assets in excess of $500 million.
The average value of the daily net assets of the Fund 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 the Fund is suspended for any particular
business day, then for the purposes of this paragraph, the value of the net
assets of the Fund 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 Fund's net assets may lawfully be determined, on that day. If the
determination of the net asset value of the Fund 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 Fund as last
determined (whether during or prior to such month).
4. EXECUTION OF PURCHASE AND SALE ORDERS
-------------------------------------
In connection with purchases or sales of portfolio securities for the
account of the Fund, 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 Fund 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 to the Fund 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
Fund 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 Fund and to accounts over which you
exercise investment discretion. The Fund and you understand and acknowledge
that, although the information may be useful to the Fund and you, it is not
possible to place a dollar value on such information. The Board shall
periodically review the commissions paid by the Fund to determine if the
commissions paid over representative periods of time were reasonable in relation
to the benefits to the Fund.
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 Fund as a
factor in the selection of brokers and dealers to execute Fund portfolio
transactions.
Subject to the provisions of the 1940 Act, and other applicable law, you,
any of your affiliates or any affiliates of your affiliates may retain
compensation in connection with effecting the Fund'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 Fund,
you will act solely as investment counsel for such client and not in any way on
behalf of the Fund. Your services to the Fund 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 1940 Act or the rules
thereunder, neither you nor your shareholders, members, 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, member,
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, member,
shareholder or agent of you, or one under your control or direction, even though
paid by you.
6. DURATION AND TERMINATION OF THIS AGREEMENT
------------------------------------------
This Agreement shall take effect on the date of its execution, and shall
remain in force through December 31, 2002, and from year to year thereafter,
subject to annual approval by (i) the Board or (ii) a vote of a majority of the
outstanding voting securities of the Fund, provided that in either event
continuance is also approved by a majority of the trustees who are not
interested persons of you or the Trust, by a vote cast in person at a meeting
called for the purpose of voting such approval.
This Agreement may, on sixty days written notice, be terminated with
respect to the Fund, 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 Fund, 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 " Xxxxx" or any
variation thereof belong to you, and that the Trust is being granted a limited
license to use such words in its Fund name or in any class name. In the event
you cease to be the adviser to the Fund, the Trust's right to the use of the
name " Xxxxx" shall automatically cease on the ninetieth 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 ninety (90) days' written notice by
you to the Trust. Nothing contained herein shall impair or diminish in any
respect, your right to use the name " Xxxxx " 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
---------------------------
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 the Board, including a majority of the trustees who are not
interested persons of you or of the Trust, cast in person at a meeting called
for the purpose of voting on such approval, and (if required under
interpretations of the 1940 Act by the Securities and Exchange Commission or its
staff) by vote of the holders of a majority of the outstanding voting securities
of the series to which the amendment relates.
9. LIMITATION OF LIABILITY TO TRUST PROPERTY
-----------------------------------------
The term "Xxxxx Funds" 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 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 the
Commonwealth of Massachusetts.
10. SEVERABILITY
------------
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
---------------------------
(a) This Agreement shall be governed by the laws of the State of Texas.
(b) For the purpose of this Agreement, the terms "majority of the
outstanding voting securities," "control" and "interested person" shall have
their respective meanings as defined in the 1940 Act
and rules and regulations thereunder, subject, however, to such exemptions as
may be granted by the Securities and Exchange Commission under the 1940 Act; and
the term "brokerage and research services" shall have the meaning given in the
Securities Exchange Act of 1934.
(c) 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 1940 Act shall be resolved by reference to such term or provision of the
1940 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 the Securities
and Exchange Commission or its staff. In addition, where the effect of a
requirement of the 1940 Act, reflected in any provision of this Agreement, is
revised by rule, regulation, order or interpretation of the Securities and
Exchange Commission or its staff, such provision shall be deemed to incorporate
the effect of such rule, regulation, order or interpretation.
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 is 00000 Xxxxxx
Xxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000, and your address for this purpose
shall be 00000 Xxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000.
13. COUNTERPARTS
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This Agreement may be executed 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
--------------
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 signature will operate to bind the party indicated to
the foregoing terms.
15. CAPTIONS
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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:
Xxxxx Funds
By: /s/ By: /s/
----------------------------- ------------------------------
Name/Title: Xxxxxxxx Xxxxxx, Secretary Name/Title: Xxxxxx X. Xxxxx, President
Dated as of April 1, 2001
ACCEPTANCE
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The foregoing Agreement is hereby accepted.
ATTEST:
Xxxxx Xxxxxxx & Associates Investment
Advisors, Inc.
By: /s/ By: /s/
-------------------------------- --------------------------------
Name/Title: Xxxxxxxxx X. Xxxx, Name/Title: Xxxxxxx X. Xxxxx,
Admin. Asst. President
Dated as of April 1, 2001
