Item #77E
Xxxx Xxxxx Partners Equity Trust
Xxxx Xxxxx Partners Target Retirement 2020
MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT (Agreement) is made
this ____ day of August, 2008, by and between Xxxx
Xxxxx Partners Equity Trust (the Trust) and Xxxx
Xxxxx Partners Fund Advisor, LLC, a Delaware limited
liability company (the Manager).
WHEREAS, the Trust is a Maryland business trust
registered as a management investment company under
the Investment Company Act of 1940, as amended (the
1940 Act);
WHEREAS, the Manager is engaged primarily in
rendering investment advisory, management and
administrative services and is registered as an
investment adviser under the Investment Advisers Act
of 1940, as amended;
WHEREAS, the Trust wishes to retain the Manager
to provide investment advisory, management, and
administrative services to the Trust with respect to
the series of the Trust designated in Schedule A
annexed hereto (the Fund); and
WHEREAS, the Manager is willing to furnish such
services on the terms and conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the promises
and mutual covenants herein contained, it is agreed
as follows:
1. The Trust hereby appoints the Manager to act
as investment adviser and administrator of the Fund
for the period and on the terms set forth in this
Agreement. The Manager accepts such appointment and
agrees to render the services herein set forth, for
the compensation herein provided.
2. The Fund shall at all times keep the Manager
fully informed with regard to the securities owned by
it, its funds available, or to become available, for
investment, and generally as to the condition of its
affairs. It shall furnish the Manager with such
other documents and information with regard to its
affairs as the Manager may from time to time
reasonably request.
3. (a) Subject to the supervision of the Trusts
Board of Trustees (the Board), the Manager shall
regularly provide the Fund with investment research,
advice, management and supervision and shall furnish
a continuous investment program for the Funds
portfolio of securities and other investments
consistent with the Funds investment objective,
policies and restrictions, as stated in the Funds
current Prospectus and Statement of Additional
Information. The Manager shall determine from time
to time what securities and other investments will be
purchased, retained, sold or exchanged by the Fund
and what portion of the assets of the Funds
portfolio will be held in the various securities and
other investments in which the Fund invests, and
shall implement those decisions, all subject to the
provisions of the Trusts Declaration of Trust and
By-Laws (collectively, the Governing Documents),
the 1940 Act, and the applicable rules and
regulations promulgated thereunder by the Securities
and Exchange Commission (the SEC) and interpretive
guidance issued thereunder by the SEC staff and any
other applicable federal and state law, as well as
the investment objective, policies and restrictions
of the Fund referred to above, and any other specific
policies adopted by the Board and disclosed to the
Manager. The Manager is authorized as the agent of
the Trust to give instructions to the custodian of
the Fund as to deliveries of securities and other
investments and payments of cash for the account of
the Fund. Subject to applicable provisions of the
1940 Act and direction from the Board, the investment
program to be provided hereunder may entail the
investment of all or substantially all of the assets
of the Fund in one or more investment companies. The
Manager will place orders pursuant to its investment
determinations for the Fund either directly with the
issuer or with any broker or dealer, foreign currency
dealer, futures commission merchant or others
selected by it. In connection with the selection of
such brokers or dealers and the placing of such
orders, subject to applicable law, 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,
as amended (the Exchange Act)) to the Fund 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
the 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 that the Manager and its
affiliates have with respect to accounts over which
they exercise investment discretion. The Board may
adopt policies and procedures that modify and
restrict the Managers authority regarding the
execution of the Funds portfolio transactions
provided herein. The Manager shall also provide
advice and recommendations with respect to other
aspects of the business and affairs of the Fund,
shall exercise voting rights, rights to consent to
corporate action and any other rights pertaining to
the Funds portfolio securities subject to such
direction as the Board may provide, and shall perform
such other functions of investment management and
supervision as may be directed by the Board.
(b) Subject to the direction and control of the
Board, the Manager shall perform such administrative
and management services as may from time to time be
reasonably requested by the Fund as necessary for the
operation of the Fund, such as (i) supervising the
overall administration of the Fund, including
negotiation of contracts and fees with and the
monitoring of performance and xxxxxxxx of the Funds
transfer agent, shareholder servicing agents,
custodian and other independent contractors or
agents, (ii) providing certain compliance, fund
accounting, regulatory reporting, and tax reporting
services, (iii) preparing or participating in the
preparation of Board materials, registration
statements, proxy statements and reports and other
communications to shareholders, (iv) maintaining the
Funds existence, and (v) during such times as shares
are publicly offered, maintaining the registration
and qualification of the Funds shares under federal
and state laws. Notwithstanding the foregoing, the
Manager shall not be deemed to have assumed any
duties with respect to, and shall not be responsible
for, the distribution of the shares of 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, shareholder servicing
agent or other agent, in each case employed by the
Fund to perform such functions.
(c) The Fund hereby authorizes any entity or
person associated with the Manager, which is a member
of a national securities exchange, to effect any
transaction on the exchange for the account of the
Fund which is permitted by Section 11(a) of the
Exchange Act and Rule 11a2- 2(T) thereunder, and the
Fund hereby consents to the retention of compensation
for such transactions in accordance with Rule 11a2-
2(T)(a)(2)(iv). Notwithstanding the foregoing, the
Manager agrees that it will not deal with itself, or
with members of the Board or any principal
underwriter of the Fund, as principals or agents in
making purchases or sales of securities or other
property for the account of the Fund, nor will it
purchase any securities from an underwriting or
selling group in which the Manager or its affiliates
is participating, or arrange for purchases and sales
of securities between the Fund and another account
advised by the Manager or its affiliates, except in
each case as permitted by the 1940 Act and in
accordance with such policies and procedures as may
be adopted by the Fund from time to time, and will
comply with all other provisions of the Governing
Documents and the Funds then-current Prospectus and
Statement of Additional Information relative to the
Manager and its directors and officers.
4. Subject to the Boards approval, the Manager
or the Fund may enter into contracts with one or more
investment subadvisers or subadministrators,
including without limitation, affiliates of the
Manager, in which the Manager delegates to such
investment subadvisers or subadministrators any or
all its duties specified hereunder, on such terms as
the Manager will determine to be necessary, desirable
or appropriate, provided that in each case the
Manager shall supervise the activities of each such
subadviser or subadministrator and further provided
that such contracts impose on any investment
subadviser or subadministrator bound thereby all the
conditions to which the Manager is subject hereunder
and that such contracts are entered into in
accordance with and meet all applicable requirements
of the 1940 Act.
5. (a) The Manager, at its expense, shall supply
the Board and officers of the Trust with all
information and reports reasonably required by them
and reasonably available to the Manager and shall
furnish the Fund with office facilities, including
space, furniture and equipment and all personnel
reasonably necessary for the operation of the Fund.
The Manager shall oversee the maintenance of all
books and records with respect to the Funds
securities transactions and the keeping of the Funds
books of account in accordance with all applicable
federal and state laws and regulations. In
compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Manager hereby agrees that any
records that it maintains for the Fund are the
property of the Fund, and further agrees to surrender
promptly to the Fund any of such records upon the
Funds request. The Manager further agrees to
arrange for the preservation of the records required
to be maintained by Rule 31a-1 under the 1940 Act for
the periods prescribed by Rule 31a-2 under the 1940
Act. The Manager shall authorize and permit any of
its directors, officers and employees, who may be
elected as Board members or officers of the Fund, to
serve in the capacities in which they are elected.
(b) The Manager shall bear all expenses, and
shall furnish all necessary services, facilities and
personnel, in connection with its responsibilities
under this Agreement. Other than as herein
specifically indicated, the Manager shall not be
responsible for the Funds expenses, including,
without limitation: advisory fees; distribution fees;
interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection
with membership in investment company organizations;
organizational costs of the Fund; the cost (including
brokerage commissions, transaction fees or charges,
if any) in connection with the purchase or sale of
the Funds securities and other investments and any
losses in connection therewith; fees and expenses of
custodians, transfer agents, registrars, independent
pricing vendors or other agents; legal expenses; loan
commitment fees; expenses relating to the issuing and
redemption or repurchase of the Funds shares and
servicing shareholder accounts; expenses of
registering and qualifying the Funds shares for sale
under applicable federal and state law; expenses of
preparing, setting in print, printing and
distributing prospectuses and statements of
additional information and any supplements thereto,
reports, proxy statements, notices and dividends to
the Funds shareholders; costs of stationery; website
costs; costs of meetings of the Board or any
committee thereof, meetings of shareholders and other
meetings of the Fund; Board fees; audit fees; travel
expenses of officers, members of the Board and
employees of the Fund, if any; and the Funds pro
rata portion of premiums on any fidelity bond and
other insurance covering the Fund and its officers,
Board members and employees; litigation expenses and
any non-recurring or extraordinary expenses as may
arise, including, without limitation, those relating
to actions, suits or proceedings to which the Fund is
a party and the legal obligation which the Fund may
have to indemnify the Funds Board members and
officers with respect thereto.
6. No member of the Board, officer or employee of
the Trust or Fund shall receive from the Trust or
Fund any salary or other compensation as such member
of the Board, officer or employee while he is at the
same time a director, officer, or employee of the
Manager or any affiliated company of the Manager,
except as the Board may decide. This paragraph shall
not apply to Board members, executive committee
members, consultants and other persons who are not
regular members of the Managers or any affiliated
companys staff.
7. As compensation for the services performed and
the facilities furnished and expenses assumed by the
Manager, including the services of any consultants
retained by the Manager, the Fund shall pay the
Manager, as promptly as possible after the last day
of each month, a fee, computed daily at an annual
rate set forth opposite the Funds name on Schedule A
annexed hereto, provided however, that if the Fund
invests all or substantially all of its assets in
another registered investment company for which the
Manager or an affiliate of the Manager serves as
investment adviser or investment manager, the annual
fee computed as set forth on such Schedule A shall be
reduced by the aggregate management fees allocated to
that Fund for the Funds then-current fiscal year
from such other registered investment company. The
first payment of the fee shall be made as promptly as
possible at the end of the month succeeding the
effective date of this Agreement, and shall
constitute a full payment of the fee due the Manager
for all services prior to that date. If this
Agreement is terminated as of any date not the last
day of a month, such fee shall be paid as promptly as
possible after such date of termination, shall be
based on the average daily net assets of the Fund in
that period from the beginning of such month to such
date of termination, and shall be that proportion of
such average daily net assets as the number of
business days in such period bears to the number of
business days in such month. The average daily net
assets of the Fund shall in all cases be based only
on business days and be computed as of the time of
the regular close of business of the New York Stock
Exchange, or such other time as may be determined by
the Board.
8. The Manager assumes no responsibility under
this Agreement other than to render the services
called for hereunder, in good faith, and 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 the Fund, provided that nothing in
this Agreement shall protect the Manager against any
liability to the Fund to which the Manager would
otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its
reckless disregard of its obligations and duties
hereunder. As used in this Section 8, the term
Manager shall include any affiliates of the Manager
performing services for the Trust or the Fund
contemplated hereby and the partners, shareholders,
directors, officers and employees of the Manager and
such affiliates.
9. Nothing in this Agreement shall limit or
restrict the right of any director, officer, or
employee of the Manager who may also be a Board
member, officer, or employee of the Trust or the
Fund, to engage in any other business or to devote
his time and attention in part to the management or
other aspects of any other business, whether of a
similar nature or a dissimilar nature, nor to limit
or restrict the right of the Manager to engage in any
other business or to render services of any kind,
including investment advisory and management
services, to any other fund, firm, individual or
association. If the purchase or sale of securities
consistent with the investment policies of the Fund
or one or more other accounts of the Manager is
considered at or about the same time, transactions in
such securities will be allocated among the accounts
in a manner deemed equitable by the Manager. Such
transactions may be combined, in accordance with
applicable laws and regulations, and consistent with
the Managers policies and procedures as presented to
the Board from time to time.
10. For the purposes of this Agreement, the
Funds net assets shall be determined as provided
in the Funds then-current Prospectus and Statement
of Additional Information and the terms assignment,
interested person, and majority of the outstanding
voting securities shall have the meanings given to
them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the SEC by any rule,
regulation or order.
11. This Agreement will become effective with
respect to the Fund on the date set forth opposite
the Funds name on Schedule A annexed hereto,
provided that it shall have been approved by the
Trusts Board and by the shareholders of the Fund in
accordance with the requirements of the 1940 Act and,
unless sooner terminated as provided herein, will
continue in effect until August __, 2010.
Thereafter, if not terminated, this Agreement shall
continue in effect with respect to the Fund, so long
as such continuance is specifically approved at least
annually (i) by the Board or (ii) by a vote of a
majority of the outstanding voting securities of the
Fund, provided that in either event the continuance
is also approved by a majority of the Board members
who are not interested persons of any party to this
Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval.
12. This Agreement is terminable with respect to
the Fund without penalty by the Board or by vote of a
majority of the outstanding voting securities of the
Fund, in each case on not more than 60 days nor less
than 30 days written notice to the Manager, or by
the Manager upon not less than 90 days written
notice to the Fund, and will be terminated upon the
mutual written consent of the Manager and the Trust.
This Agreement shall terminate automatically in the
event of its assignment by the Manager and shall not
be assignable by the Trust without the consent of the
Manager.
13. The Manager agrees that for services rendered
to the Fund, or for any claim by it in connection
with services rendered to the Fund, it shall look
only to assets of the Fund for satisfaction and that
it shall have no claim against the assets of any
other portfolios of the Trust. The undersigned
officer of the Trust has executed this Agreement not
individually, but as an officer under the Trusts
Declaration of Trust and the obligations of this
Agreement are not binding upon any of the Trustees,
officers or shareholders of the Trust individually.
14. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but
only by an instrument in writing signed by the party
against which enforcement of the change, waiver,
discharge or termination is sought, and no material
amendment of the Agreement shall be effective until
approved, if so required by the 1940 Act, by vote of
the holders of a majority of the Funds outstanding
voting securities.
15. This Agreement embodies the entire agreement
and understanding between the parties hereto, and
supersedes all prior agreements and understandings
relating to the subject matter hereof. Should any
part of this Agreement be held or made invalid by a
court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected
thereby. This Agreement shall be binding on and
shall inure to the benefit of the parties hereto and
their respective successors.
16. This Agreement shall be construed and the
provisions thereof interpreted under and in
accordance with the laws of the State of New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their officers
thereunto duly authorized.
XXXX XXXXX
PARTNERS EQUITY
TRUST
By:
_________________
_________________
____________
Name:
Title:
XXXX XXXXX
PARTNERS FUND
ADVISOR, LLC
By:
_________________
_________________
___________
Name:
Title:
Schedule A
Xxxx Xxxxx Partners Target Retirement 2020
Date:
August __, 2008
Fee:
0.10% of the Funds average daily net assets
1521365.1
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