Exhibit (d)(10)
XXXXX XXXXX MUTUAL FUNDS TRUST
INVESTMENT ADVISORY AGREEMENT
ON BEHALF OF XXXXX XXXXX DIVERSIFIED INCOME FUND
AGREEMENT made this 15th day of November, 2004, between Xxxxx Xxxxx Mutual
Funds Trust, a Massachusetts business trust (the "Trust"), on behalf of Xxxxx
Xxxxx Diversified Income Fund (the "Fund") and Xxxxx Xxxxx Management, a
Massachusetts business trust (the "Adviser").
1. Duties of the Adviser. The Trust hereby employs the Adviser to act as
investment adviser for and to manage the investment and reinvestment of the
assets of the Fund and to administer its affairs, subject to the supervision of
the Trustees of the Trust, for the period and on the terms set forth in this
Agreement.
The Adviser hereby accepts such employment, and undertakes to afford to the
Fund the advice and assistance of the Adviser's organization in the choice of
investments and in the purchase and sale of securities for the Fund and to
furnish for the use of the Fund office space and all necessary office
facilities, equipment and personnel for servicing the investments of the Fund
and for administering its affairs and to pay the salaries and fees of all
officers and Trustees of the Trust who are members of the Adviser's organization
and all personnel of the Adviser performing services relating to research and
investment activities. The Adviser shall for all purposes herein be deemed to be
an independent contractor and shall, except as 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.
The Adviser shall provide the Fund with such investment management and
supervision as the Trust may, from time to time, consider necessary for the
proper supervision of the Fund's investments. As investment adviser to the Fund,
the Adviser shall furnish continuously an investment program and shall determine
from time to time what securities and other investments shall be acquired,
disposed of or exchanged and what portion of the Fund's assets shall be held
uninvested, subject always to the applicable restrictions of the Declaration of
Trust, By-Laws and registration statement of the Trust under the Investment
Company Act of 1940, all as from time to time amended. Should the Trustees of
the Trust at any time, however, make any specific determination as to investment
policy for the Fund and notify the Adviser thereof in writing, the Adviser 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
Adviser shall take, on behalf of the Trust, all actions which it deems necessary
or desirable to implement the investment policies of the Trust and the Fund.
The Adviser shall place all orders for the purchase or sale of portfolio
securities for the account of the Fund either directly with the issuer or with
brokers or dealers selected by the Adviser, and to that end the Adviser is
authorized as the agent of the Fund to give instructions to the custodian 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, the Adviser shall adhere to procedures adopted by the
Board of Trustees of the Trust.
2. Compensation of Administrator. The Board of Trustees of the Trust have
currently determined that the Adviser shall receive no compensation from the
Trust or the Fund in respect of the services to be rendered and the facilities
to be provided by the Adviser under this Agreement. If the Trustees subsequently
determine that the Trust or Fund, should compensate the Adviser for such
services and facilities, such compensation shall be set forth in a new agreement
or in an amendment to this Agreement to be entered into by the parties hereto
subject to the provisions of Section 8 hereof.
3. Allocation of Charges and Expenses. It is understood that the Fund will
pay all expenses other than those expressly stated to be payable by the Adviser
hereunder, which expenses payable by the Fund shall include, without implied
limitation, (i) expenses of maintaining the Fund and continuing its existence,
(ii) registration of the Trust under the Investment Company Act of 1940, (iii)
commissions, fees and other expenses connected with the acquisition, holding and
disposition of securities and other investments, (iv) auditing, accounting and
legal expenses, (v) taxes and interest, (vi) governmental fees, (vii) expenses
of issue, sale, and redemption of shares, (viii) expenses of registering and
qualifying the Fund and its shares under federal and state securities laws and
of preparing and printing registration statements or other offering statements
or memoranda for such purposes and for distributing the same to shareholders and
investors, and fees and expenses of registering and maintaining registrations of
the Fund and of the Fund's principal underwriter, if any, as broker-dealer or
agent under state securities laws, (ix) expenses of reports and notices to
shareholders and of meetings of shareholders and proxy solicitations therefor,
(x) expenses of reports to governmental officers and commissions, (xi) insurance
expenses, (xii) association membership dues, (xiii) fees, expenses and
disbursements of custodians and subcustodians for all services to the Fund
(including without limitation safekeeping of funds, securities and other
investments, keeping of books, accounts and records, and determination of net
asset values), (xiv) fees, expenses and disbursements of transfer agents,
dividend disbursing agents, shareholder servicing agents and registrars for all
services to the Fund, (xv) expenses for servicing the shareholder accounts,
(xvi) any direct charges to shareholders approved by the Trustees of the Trust,
(xvii) compensation and expenses of Trustees of the Trust who are not members of
the Adviser's organization, (xviii) all payments to be made and expenses to be
assumed by the Fund pursuant to any one or more distribution plans adopted by
the Trust on behalf of the Fund pursuant to Rule 12b-1 under the Investment
Company Act of 1940, and (xix) such non-recurring items as may arise, including
expenses incurred in connection with litigation, proceedings and claims and the
obligation of the Trust to indemnify its Trustees, officers and shareholders
with respect thereto.
4. Other Interests. It is understood that Trustees and officers of the
Trust and shareholders of the Fund are or may be or become interested in the
Adviser as trustees, officers, employees, shareholders or otherwise and that
trustees, officers, employees and shareholders of the Adviser are or may be or
become similarly interested in the Fund, and that the Adviser may be or become
interested in the Fund as a shareholder or otherwise. It is also understood that
trustees, officers, employees and shareholders of the Adviser may be or become
interested (as directors, trustees, officers, employees, shareholders or
otherwise) in other companies or entities (including, without limitation, other
investment companies) which the Adviser may organize, sponsor or acquire, or
with which it may merge or consolidate, and which may include the words "Xxxxx
Xxxxx" or "Boston Management and Research" or any combination thereof as part of
their name, and that the Adviser or its subsidiaries or affiliates may enter
into advisory or management agreements or other contracts or relationships with
such other companies or entities.
5. Limitation of Liability of the Adviser. The services of the Adviser to
the Fund are not to be deemed to be exclusive, the Adviser being free to render
services to others and engage in other business activities. In the absence of
willful misfeasance, bad faith, gross negligence or reckless disregard of
obligations or duties hereunder on the part of the Adviser, the Adviser shall
not be subject to liability to the Trust or to any shareholder of the Fund for
any act or omission in the course of, or connected with, rendering services
hereunder or for any losses which may be sustained in the acquisition, holding
or disposition of any security or other investment.
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6. Sub-Investment Advisers. The Adviser may employ one or more
sub-investment advisers from time to time to perform such of the acts and
services of the Adviser, including the selection of brokers or dealers or other
persons to execute the Fund's portfolio security transactions, and upon such
terms and conditions as may be agreed upon between the Adviser and such
sub-investment adviser and approved by the Trustees of the Trust, all as
permitted by the Investment Company Act of 1940.
7. Duration and Termination of this Agreement. This Agreement shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect through and including March 31,
2006 and shall continue in full force and effect indefinitely thereafter, but
only so long as such continuance after March 31, 2006 is specifically approved
at least annually (i) by the Board of Trustees of the Trust or by vote of a
majority of the outstanding voting securities of the Fund and (ii) by the vote
of a majority of those Trustees of the Trust who are not interested persons of
the Adviser or the Trust cast in person at a meeting called for the purpose of
voting on such approval.
Either party hereto may, at any time on sixty (60) days' prior written notice to
the other, terminate this Agreement without the payment of any penalty, by
action of Trustees of the Trust or the trustees of the Adviser, as the case may
be, and the Trust may, at any time upon such written notice to the Adviser,
terminate this Agreement by vote of a majority of the outstanding voting
securities of the Fund. This Agreement shall terminate automatically in the
event of its assignment.
8. Amendments of the Agreement. This Agreement may be amended by a writing
signed by both parties hereto, provided that no amendment to this Agreement
shall be effective until approved (i) by the vote of a majority of those
Trustees of the Trust who are not interested persons of the Adviser or the Trust
cast in person at a meeting called for the purpose of voting on such approval,
and (ii) by vote of a majority of the outstanding voting securities of the Fund,
except for any such amendment that may be effected in the absence of such
approval without violating the Investment Company Act of 1940, as modified by or
interpreted by any applicable order of the Securities and Exchange Commission
("SEC") or any rules or regulations adopted by, or interpretive releases of, the
SEC.
9. Limitation of Liability. The Adviser expressly acknowledges the
provisions in the Declaration of Trust of the Trust limiting the personal
liability of the shareholders of the Fund, the Trustees and officers of the
Trust, and the Adviser hereby agrees that it shall have recourse to the Trust or
the Fund for payment of claims or obligations as between the Trust or the Fund
and the Adviser arising out of this Agreement and shall not seek satisfaction
from the shareholders or any shareholder of the Fund or any Trustee or officer
of the Trust.
10. Use of Name "Xxxxx Xxxxx". The Adviser hereby consents to the use by
the Fund of the name "Xxxxx Xxxxx" as part of the Fund's name; provided,
however, that such consent shall be conditioned upon the employment of the
Adviser or one of its affiliates as the investment adviser of the Fund. The name
"Xxxxx Xxxxx" or any variation thereof may be used from time to time in other
connections and for other purposes by the Adviser and its affiliates and other
investment companies that have obtained consent to the use of the name "Xxxxx
Xxxxx". The Adviser shall have the right to require the Fund to cease using the
name "Xxxxx Xxxxx" as part of the Fund's name if the Fund ceases, for any
reason, to employ the Adviser or one of its affiliates as the Fund's investment
adviser. Future names adopted by the Fund for itself, insofar as such names
include identifying words requiring the consent of the Adviser, shall be the
property of the Adviser and shall be subject to the same terms and conditions.
11. Certain Definitions. The terms "assignment" and "interested persons"
when used herein shall have the respective meanings specified in the Investment
Company Act of 1940 as now in effect or as hereafter amended subject, however,
to such exemptions as may be granted by the SEC by any rule, regulation or
order. The term "vote of a majority of the outstanding voting securities" shall
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mean the vote, at a meeting of shareholders, of the lesser of (a) 67 per centum
or more of the shares of the Fund present or represented by proxy at the meeting
if the holders of more than 50 per centum of the outstanding shares of the Fund
are present or represented by proxy at the meeting, or (b) more than 50 per
centum of the outstanding shares of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
XXXXX XXXXX MUTUAL FUNDS TRUST
(on behalf of Xxxxx Xxxxx Diversified Income Fund)
By: /s/ Xxxxxx X. Xxxxx Xx.
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President
XXXXX XXXXX MANAGEMENT
By: /s/ Xxxx X. Xxxxxx
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Vice President
and not individually
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