INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
OF THE XXXXXXX FOCUS FUND
OF THE XXXXXXX INVESTMENT FUND
AGREEMENT, made this ____ day of ___________, 1997, between The Xxxxxxx
Investment Fund (the "Trust"), on behalf of the Xxxxxxx Focus Fund (the "Fund"),
and Xxxxxxx Capital Management, LLC ("MCM"), a Delaware limited liability
company.
WHEREAS, the Trust is a Delaware business trust authorized to issue shares
in series and is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and the Fund is
a series of the Trust;
WHEREAS, MCM is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, the Trust wishes to retain MCM to render investment management
services to the Fund, and MCM is willing to furnish such services to the Fund;
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed between the Trust and MCM as follows:
1. APPOINTMENT
The Trust hereby appoints MCM to act as investment adviser and
administrator to the Fund for the periods and on the terms set forth herein.
MCM accepts the appointment and agrees to furnish the services set forth herein
for the compensation provided herein.
2. SERVICES AS INVESTMENT ADVISER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) manage the Fund in accordance with the Fund's
investment objectives and policies as stated in the Fund's Prospectus and the
Statement of Additional Information filed with the Securities and Exchange
Commission, as they may be amended from time to time; (b) make investment
decisions for the Fund; (c) place purchase and sale orders on behalf of the
Fund; and (d) employ portfolio managers and securities analysts to provide
research services to the Fund. In providing those services, MCM will provide
the Fund with ongoing research, analysis, advice, and judgments regarding
individual investments, general economic conditions and trends and long-range
investment policy. In addition, MCM will furnish the Fund with whatever
statistical information the Fund may reasonably request with respect to the
securities that the Fund may hold or contemplate purchasing.
3. SERVICES AS MANAGER
Subject to the general supervision and direction of the Board of Trustees
of the Trust, MCM will (a) assist in supervising and managing all aspects of the
Fund's operations; (b) maintain such books and records of the Fund as may be
required by applicable federal or state law, or supervise, as the case may be,
the maintenance by third parties approved by the Trust, of
such books and records; (c) supply the Fund with office facilities, data
processing services, clerical, accounting and bookkeeping services, internal
executive and administrative services, and stationery and office supplies; (d)
prepare, file, and arrange for the distribution of proxy materials and periodic
reports to the shareholders of the Fund as required by applicable law or
supervise, as the case may be, the distribution of proxy materials by third
parties to the shareholders of the Fund as required by applicable law; (e)
prepare or supervise the preparation by third parties approved by the Trust of
all federal, state, and local tax returns and reports of the Fund required by
applicable law; (f) prepare and arrange for the filing of such registration
statements and other documents as the Securities and Exchange Commission and
other federal and state regulatory authorities may require by applicable law;
(g) render to the Board of Trustees of the Trust such periodic and special
reports respecting the Fund as the Trustees may reasonably request; and (h) make
available its officers and employees to the Board of Trustees and officers of
the Trust for consultation and discussions regarding the administration of the
Fund.
4. PERFORMANCE OF DUTIES BY MCM
MCM further agrees that, in performing its duties set forth in Sections 2
and 3 above, and elsewhere hereunder, it will:
(a) comply with the 1940 Act and all rules and regulations thereunder, the
Advisers Act, the Internal Revenue Code of 1986, as amended (the "Code") and all
other applicable federal and state laws and regulations, and with any applicable
procedures adopted by the Trustees;
(b) use reasonable efforts to manage the Fund so that it will qualify, and
continue to qualify, as a regulated investment company under Subchapter M of the
Code and regulations issued thereunder;
(c) maintain books and records with respect to the Fund's securities
transactions, render to the Board of Trustees of the Trust such periodic and
special reports as the Board may reasonably request, and keep the Trustees
informed of developments materially affecting the Fund's portfolio;
(d) make available to the Trust, promptly upon request, such copies of its
investment records and ledgers with respect to the Fund as may be required to
assist the Trust in its compliance with applicable laws and regulations. MCM
will furnish the Trustees with such periodic and special reports regarding the
Fund as they may reasonably request;
(e) immediately notify the Trust in the event that MCM or any of its
affiliates: (1) becomes aware that it is subject to a statutory
disqualification that prevents MCM from serving as investment adviser or
administrator pursuant to this Agreement; or (2) becomes aware that it is the
subject of an administrative proceeding or enforcement action by the Securities
and Exchange Commission or other regulatory authority. MCM further agrees to
notify the Trust immediately of any material fact known to MCM respecting or
relating to MCM that is not contained in the Trust's Registration Statement
regarding the Fund, or any amendment or supplement thereto, but
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that is required to be disclosed therein, and of any statement contained therein
that becomes untrue in any material respect.
MCM, at its discretion, may enter into contracts with third parties for the
performance of the services to be provided by it under this Agreement.
5. DOCUMENTS
The Fund has delivered properly certified or authenticated copies of each
of the following documents to MCM and will deliver to it all future amendments
and supplements thereto, if any:
(a) certified resolution of the Board of Trustees of the Trust authorizing
the appointment of MCM and approving the form of this Agreement;
(b) The Registration Statement as filed with the Securities and Exchange
Commission and any amendments thereto; and
(c) exhibits, powers of attorneys, certificates and any and all other
documents relating to or filed in connection with the Registration Statement
described above.
6. BROKERAGE
In selecting brokers or dealers to execute transactions on behalf of the
Fund, MCM will use its best efforts to seek the best overall terms available.
In assessing the best overall terms available for any Fund transaction, MCM will
consider all factors it deems relevant, including, but not limited to, the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and the
reasonableness of the commission, if any, for the specific transaction and on a
continuing basis. In selecting brokers or dealers to execute a particular
transaction, and in evaluating the best overall terms available, MCM is
authorized to consider the brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934, as amended (the
"1934 Act")) provided to the Fund and/or other accounts over which MCM or its
affiliates exercise investment discretion. In accordance with Section 11(a) of
the 1934 Act and Rule 11a2-2(T) thereunder, and subject to any other applicable
laws and regulations, MCM and its affiliates are authorized to effect portfolio
transactions for the Fund as agent and to retain usual and customary brokerage
commissions on such transactions.
7. RECORDS
MCM agrees to maintain and to preserve for the periods prescribed under the
1940 Act any such records as are required to be maintained by MCM with respect
to the Fund by the 1940 Act. MCM further agrees that all records which it
maintains for the Fund are the property of the Fund and it will promptly
surrender any of such records upon request.
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8. STANDARD OF CARE
MCM shall exercise its best judgment in rendering the services under this
Agreement. MCM shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or the Fund's shareholders in connection
with the matters to which this Agreement relates, provided that nothing herein
shall be deemed to protect or purport to protect MCM against any liability to
the Fund or to its shareholders to which MCM would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of MCM's reckless disregard of its
obligations and duties under this Agreement. As used in this Section 8, the
term "MCM" shall include any officers, directors, employees, or other affiliates
of MCM performing services with respect to the Fund.
9. COMPENSATION
In consideration of the services rendered pursuant to this Agreement, the
Fund will pay MCM a fee at an annual rate equal to ___% of the average daily net
assets of the Fund. This fee shall be computed and accrued daily and payable
monthly. For the purpose of determining fees payable to MCM, the value of the
Fund's average daily net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus or Statement of Additional Information.
10. EXPENSES
MCM will bear all expenses in connection with the performance of its
services under this Agreement. The Fund will bear certain other expenses to be
incurred in its operation, including: taxes, interest, brokerage fees and
commissions, if any; fees and expenses of Trustees of the Trust who are not
officers, directors, or employees of MCM; Securities and Exchange Commission
fees and state blue sky qualification fees; charges of custodians and transfer
and dividend disbursing agents; the Fund's proportionate share of insurance
premiums; outside auditing and legal expenses; costs of membership in any
industry trade groups; costs of maintenance of the Fund's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; charges of independent pricing services; costs of preparing
and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and of the
officers or Board of Trustees of the Trust; and any extraordinary expenses. In
addition, the Fund will pay distribution fees pursuant to a Distribution Plan
adopted under Rule 12b-1 of the 1940 Act.
11. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The investment advisory and administrative services provided by MCM to the
Fund under this Agreement are not to be deemed exclusive, and MCM, or any
affiliate thereof, shall be free to render similar services to other investment
companies and other clients (whether or not their investment objectives and
policies are similar to those of the Fund) and to engage in other activities, so
long as it services hereunder are not impaired thereby.
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12. REIMBURSEMENT OF ORGANIZATION EXPENSES
The Trust hereby agrees to reimburse MCM for the organization expenses of,
and the expenses incurred in connection with, the initial offering of the shares
of the Fund.
13. DURATION AND TERMINATION
This Agreement shall become effective on __________, 1997 and shall
continue in effect, unless sooner terminated as provided herein, for two years
from such date and shall continue from year to year thereafter, provided each
continuance is specifically approved at least annually by (i) the vote of a
majority of the Board of Trustees of the Trust or (ii) a vote of a "majority"
(as defined in the 0000 Xxx) of the Fund's outstanding voting securities,
provided that in either event the continuance is also approved by a majority of
the Board of Trustees who are not "interested persons" (as defined in the 0000
Xxx) of any party to this Agreement, by vote cast in person at a meeting called
for the purpose of voting on such approval. This Agreement is terminable,
without penalty, on sixty (60) days' written notice by the Board of Trustees of
the Trust or by vote of holders of a majority of the Fund's shares or upon
ninety (90) days' written notice by MCM. This Agreement will also terminate
automatically in the event of its "assignment" (as defined in the 1940 Act).
14. AMENDMENT
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 amendment of this Agreement shall be effective until approved by
an affirmative vote of (i) a majority of the outstanding voting securities of
the Fund, and (ii) a majority of the Trustees of the Trust, including a majority
of Trustees who are not interested persons of any party to this Agreement, cast
in person at a meeting called for the purpose of voting on such approval, if
such approval is required by applicable law.
15. USE OF THE NAME "MARSICO."
MCM has consented to and granted a non-exclusive license for the use by the
Trust and by each Series thereof to the phrase "Xxxxxxx Capital" or the
identifying word "Marsico" in the name of the Trust and of each Series or any
logo or symbol authorized by MCM. Such consent is conditioned upon the Trust's
employment of MCM or its affiliates as investment adviser to the Trust and to
each Series. As between MCM and the Trust, MCM shall control the use of such
name insofar as such name contains the phrase "Xxxxxxx Capital" or the
identifying word "Marsico." MCM may from time to time use the phrase "Xxxxxxx
Capital" or the identifying word "Marsico" in other connection and for other
purposes, including without limitation in the names of other investment
companies, corporations or businesses that it may manage, advise, sponsor or own
or in which it may have a financial interest. MCM may require the Trust or any
Series to cease using the phrase "Xxxxxxx Capital" or the identifying word
"Marsico" in the name of the Trust or any Series or any logo or symbol
authorized by Xxxxxxx Capital if the Trust or Series ceases to employ MCM or an
affiliate thereof as investment adviser.
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16. MISCELLANEOUS
a. This Agreement constitutes the full and complete agreement of the
parties hereto with respect to the subject matter hereof.
b. Titles or captions of Sections contained in this Agreement are
inserted only as a matter of convenience and for reference, and in no way
define, limit, extend or describe the scope of this Agreement or the intent of
any provisions thereof.
c. This Agreement may be executed in several counterparts, all of which
together shall for all purposes constitute one Agreement, binding on all the
parties.
d. This Agreement and the rights and obligations of the parties hereunder
shall be governed by, and interpreted, construed and enforced in accordance with
the laws of the State of Delaware.
e. If any provisions of this Agreement or the application thereof to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid or unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or circumstance,
other than those as to which it is so determined to be invalid or unenforceable,
shall not be affected thereby, and each provision hereof shall be valid and
shall be enforced to the fullest extent permitted by law.
f. Notices of any kind to be given to MCM by the Trust shall be in
writing and shall be duly given if mailed or delivered to MCM at 0000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxx, or at such
other address or to such individual as shall be specified by MCM to the Trust.
Notices of any kind to be given to the Trust by MCM shall be in writing and
shall be duly given if mailed or delivered to 0000 00xx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxxxxxxxx X. Xxxxxxx, or at such other address
or to such individual as shall be specified by the Trust to MCM.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first above
written.
THE XXXXXXX INVESTMENT FUND
ON BEHALF OF
THE XXXXXXX FOCUS FUND
By:
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Name:
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Title:
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XXXXXXX CAPITAL MANAGEMENT, LLC.
By:
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Name:
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Title:
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