EXHIBIT (d)(13)
XXXXXX XXXXXX TAX-MANAGED EQUITY FUND
ADVISORY AGREEMENT
AGREEMENT made as of this 12th day of September, 2003, by and between
Xxxxxx Xxxxxx Funds II, a Massachusetts business trust (the "Trust"), with
respect to its Xxxxxx Xxxxxx Tax-Managed Equity Fund series (the "Series"), and
Xxxxxx, Xxxxxx & Company, L.P., a Delaware limited partnership (the "Adviser").
WITNESSETH:
WHEREAS, the Trust and the Adviser wish to enter into an agreement
setting forth the terms upon which the Adviser will perform certain services for
the Series;
NOW THEREFORE, in consideration of the premises and covenants
hereinafter contained, the parties agree as follows:
1. The Trust hereby employs the Adviser to manage the investment
and reinvestment of the assets belonging to the Series and to perform the other
services herein set forth, subject to the supervision of the Board of Trustees
of the Trust. The Adviser hereby accepts such employment and agrees, at its own
expense, to render the services and to assume the obligations herein set forth,
for the compensation herein provided. The Adviser shall for all purposes herein
be deemed to be an independent contractor and shall, unless 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.
2. In carrying out its obligations to manage the investment and
reinvestment of the assets belonging to the Series, the Adviser shall:
(a) obtain and evaluate such economic, statistical and
financial data and information and undertake such additional investment
research as it shall believe necessary or advisable for the management
of the investment and reinvestment of the assets belonging to the Series
in accordance with the Series' investment objective and policies;
(b) take such steps as are necessary to implement the
investment policies of the Series by purchase and sale of securities,
including the placing of orders for such purchase and sale with brokers
or dealers selected by the Adviser; and
(c) regularly report to the Board of Trustees with respect
to the implementation of the investment policies of the Series.
3. All activities in connection with the management of the affairs
of the Series undertaken by the Adviser pursuant to this Agreement shall at all
times be subject to the
supervision and control of the Board of Trustees, any duly constituted committee
thereof or any officer of the Trust acting pursuant to like authority.
4. In addition to performing at its expense the obligations set
forth in section 2 hereof, the Adviser shall furnish to the Trust at the
Adviser's own expense or pay the expenses of the Trust for the following:
(a) office space in such place or places as may be agreed
upon from time to time, and all necessary office supplies, facilities
and equipment;
(b) necessary executive and other personnel for managing the
affairs of the Series (exclusive of those related to and to be performed
under contract for custodial, transfer, dividend and plan agency
services by the entity or entities selected to perform such services and
exclusive of any managerial functions described in section 5); and
(c) compensation, if any, of Trustees of the Trust who are
directors, officers, partners or employees of the Adviser or any
affiliated person (other than a registered investment company) of the
Adviser.
5. Except as the Adviser may otherwise agree from time to time,
nothing in section 4 hereof shall require the Adviser to bear, or to reimburse
the Trust for:
(a) any of the costs of printing and distributing the items
referred to in subsection (n) of this section 5;
(b) any of the costs of preparing, printing and distributing
sales literature;
(c) compensation of Trustees of the Trust who are not
directors, officers, partners or employees of the Adviser or of any
affiliated person (other than a registered investment company) of the
Adviser;
(d) registration, filing and other fees in connection with
requirements of regulatory authorities;
(e) the charges and expenses of the custodian appointed by
the Trust for custodial, paying agent, transfer agent and plan agent
services;
(f) charges and expenses of independent accountants retained
by the Trust;
(g) charges and expenses of any transfer agents and
registrars appointed by the Trust;
(h) brokers' commissions and issue and transfer taxes
chargeable to the Trust in connection with securities transactions to
which the Trust is a party;
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(i) taxes and fees payable by the Trust to Federal, State or
other governmental agencies;
(j) any cost of certificates representing shares of the
Series;
(k) legal fees and expenses in connection with the affairs
of the Trust including registering and qualifying its shares with
Federal and State regulatory authorities;
(l) expenses of meetings of shareholders and Trustees of the
Trust;
(m) interest, including interest on borrowings by the Trust;
(n) the cost of services, including services of counsel,
required in connection with the preparation of the Trust's registration
statements and prospectuses, including amendments and revisions thereto,
annual, semiannual and other periodic reports of the Trust, and notices
and proxy solicitation material furnished to shareholders of the Trust
or regulatory authorities; and
(o) the Trust's expenses of bookkeeping, accounting,
auditing and financial reporting, including related clerical expenses.
6. The services of the Adviser to the Trust hereunder are not to be
deemed exclusive and the Adviser shall be free to render similar services to
others, so long as its services hereunder are not impaired thereby.
7. As full compensation for all services rendered, facilities
furnished and expenses borne by the Adviser hereunder, the Trust shall pay the
Adviser compensation at the annual percentage rate of .50% or such lesser rate
as the Adviser may agree to from time to time. Such compensation shall be
payable monthly in arrears or at such other intervals, not less frequently than
quarterly, as the Board of Trustees of the Trust may from time to time determine
and specify in writing to the Adviser. The Adviser hereby acknowledges that the
Trust's obligation to pay such compensation is binding only on the assets and
property belonging to the Series.
8. If the total of all ordinary business expenses of the Series or
the Trust as a whole (including investment advisory fees but excluding taxes and
portfolio brokerage commissions) for any fiscal year exceeds the lowest
applicable percentage of average net assets or income limitations prescribed by
any state in which shares of the Series are qualified for sale, the Adviser
shall pay any such excess. Solely for purposes of applying such limitations in
accordance with the foregoing sentence, the Series and the Trust shall each be
deemed to be a separate fund subject to such limitations. Should the applicable
state limitation provisions fail to specify how the average net assets of the
Trust or belonging to the Series are to be calculated, that figure shall be
calculated by reference to the average daily net assets of the Trust or the
Series, as the case may be.
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9. It is understood that any of the shareholders, trustees,
officers, employees and agents of the Trust may be a partner, shareholder,
director, officer, employee or agent of, or be otherwise interested in, the
Adviser, any affiliated person of the Adviser, any organization in which the
Adviser may have an interest or any organization which may have an interest in
the Adviser; that the Adviser, any such affiliated person or any such
organization may have an interest in the Trust; and that the existence of any
such dual interest shall not affect the validity hereof or of any transactions
hereunder except as otherwise provided in the Agreement and Declaration of Trust
of the Trust and the Partnership Agreement of the Adviser, respectively, or by
specific provisions of applicable law.
10. This Agreement shall become effective as of the date of its
execution, and
(a) unless otherwise terminated, this Agreement shall
continue in effect for two years from the date of execution, and from
year to year thereafter only so long as such continuance 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
Series, and (ii) by vote of a majority of the Trustees of the Trust who
are not interested persons of the Trust or the Adviser, cast in person
at a meeting called for the purpose of voting on such approval;
(b) this Agreement may at any time be terminated on sixty
days' written notice to the Adviser either by vote of the Board of
Trustees of the Trust or by vote of a majority of the outstanding voting
securities of the Series;
(c) this Agreement shall automatically terminate in the
event of its assignment;
(d) this Agreement may be terminated by the Adviser on
ninety days' written notice to the Trust;
(e) if the Adviser requires the Trust or the Series to
change its name so as to eliminate all references to the words "Xxxxxx"
or "Xxxxxx," then this Agreement shall automatically terminate at the
time of such change unless the continuance of this Agreement after such
change shall have been specifically approved by vote of a majority of
the outstanding voting securities of the Series and by vote of a
majority of the Trustees of the Trust who are not interested persons of
the Trust or the Adviser, cast in person at a meeting called for the
purpose of voting on such approval.
Termination of this Agreement pursuant to this section 10 shall be
without payment of any penalty.
11. This Agreement may be amended at any time by mutual consent of
the parties, provided that such consent on the part of the Trust shall have been
approved by vote of a majority of the outstanding voting securities of the
Series and by vote of a majority of the Trustees of the Trust who are not
interested persons of the Trust or the Adviser, cast in person at a meeting
called for the purposes of voting on such approval.
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12. For the purposes of this Agreement, the terms "vote of a
majority of the outstanding voting securities," "interested person," "affiliated
person" and "assignment" shall have their respective meanings defined in the
Investment Company Act of 1940 and the rules and regulations thereunder,
subject, however, to such exemptions as may be granted by the Securities and
Exchange Commission under said Act. References in this Agreement to any assets,
property or liabilities "belonging to" the Series shall have the meaning defined
in the Trust's Agreement and Declaration of Trust and By-Laws as amended from
time to time.
13. In the absence of willful misfeasance, bad faith or gross
negligence on the part of the Adviser, or reckless disregard of its obligations
and duties hereunder, the Adviser shall not be subject to any liability to the
Trust, to any shareholder of the Trust or to any other person, firm or
organization, for any act or omission in the course of, or connected with,
rendering services hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXXXXX XXXXXX FUNDS II,
on behalf of its
Xxxxxx Xxxxxx Tax-Managed Equity Fund
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
XXXXXX, XXXXXX & COMPANY, L.P.
By: XXXXXX, XXXXXX & COMPANY, INC., its
general partner
By: /s/ Xxxxx X. Charleston
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Name: Xxxxx X. Charleston
Title: Director
A copy of the Agreement and Declaration of Trust establishing the Trust
is on file with the Secretary of The Commonwealth of Massachusetts, and notice
is hereby given that this Agreement is executed with respect to the Trust's
Xxxxxx Xxxxxx Tax-Managed Equity Fund series on behalf of the Trust by officers
of the Trust as officers and not individually and that the obligations of or
arising out of this Agreement are not binding upon any of the Trustees, officers
or shareholders individually but are binding only upon the assets and property
belonging to the Series.
