AMENDED AND RESTATED
INVESTMENT MANAGEMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT made this 17th day of November, 2006, by
and between ▇▇▇▇▇▇ Funds, a Massachusetts business trust (the "Trust"), and
▇▇▇▇▇▇ Investment Management LLC, a Maryland limited liability company (the
"Investment Manager" or "▇▇▇").
WHEREAS, the Trust is an open-end management investment company under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
consisting of several series of shares, each having its own investment policies
(the "Portfolios");
WHEREAS, the Trust and ▇▇▇ are parties to an investment management
agreement dated March 5, 2002; and
WHEREAS, the Trust and ▇▇▇ desire to amend and restate that agreement
in its entirety:
NOW, THEREFORE, in consideration of mutual covenants herein contained,
the parties, intending to be legally bound, hereto agree as follows:
1. DUTIES OF INVESTMENT MANAGER. The Trust employs the Investment
Manager to manage the investment and reinvestment of the
assets of the Fund, and to continuously review, supervise and
(where appropriate) administer the investment program of the
Portfolios, to determine in its discretion (where appropriate)
the investments to be purchased or sold, to provide the Trust
with records concerning the Investment Manager's activities
which the Trust is required to maintain, and to render regular
reports to the Trust's officers and Trustees concerning the
Investment Manager's discharge of the foregoing
responsibilities. The retention of a sub-adviser by the
Investment Manager shall not relieve the Investment Manager of
its responsibilities under this Agreement.
The Investment Manager shall discharge the foregoing
responsibilities subject to the control of the Board of
Trustees of the Trust and in compliance with such policies as
the Trustees may from time to time establish, and in
compliance with the objectives, policies, and limitations of
each Portfolio as set forth in the Portfolio's Prospectus and
Statement of Additional Information, as amended from time to
time, and applicable laws and regulations.
The Investment Manager accepts such employment and agrees, at
its own expense, to render the services and to provide the
office space, furnishings and equipment and the personnel
(including any sub-advisers) required by it to perform the
services on the terms and for the compensation provided
herein. The Investment Manager will not, however, pay for the
cost of securities, commodities, and other investments
(including brokerage commissions and other transaction
charges, if any) purchased or sold for the Fund.
2. PORTFOLIO TRANSACTIONS. The Investment Manager is authorized
to select the brokers or dealers that will execute the
purchases and sales of the Portfolios' investments and is
directed to use its best efforts to obtain the best net
results as described from time to time in the Portfolios
Prospectuses and Statements of Additional Information. The
Investment Manager will promptly communicate to the officers
and the Trustees of the Trust such information relating to the
Trust's investment transactions as they may reasonably request
It is understood that the Investment Manager will not be
deemed to have acted unlawfully, or to have breached a
fiduciary duty to the Trust or be in breach of any obligation
owing to the Trust under this Agreement, or otherwise, by
reason of its having directed a securities transaction on
behalf of the Trust to a broker-dealer in compliance with the
provisions of Section 28(e) of the Securities Exchange Act of
1934 or as described from time to time by the Portfolios
Prospectuses and Statements of Additional Information.
3. COMPENSATION OF THE INVESTMENT MANAGER. For the services to be
rendered by the Investment Manager as provided in Sections 1
and 2 of this Agreement, the Trust shall pay to the Investment
Manager compensation at the rate specified in the Schedule(s)
which are attached hereto and made a part of this Agreement.
Such compensation shall be paid to the Investment Manager at
the end of each month, and calculated by applying a daily
rate, based on the annual percentage rate as specified in the
attached Schedule(s) to the assets. The fee shall be based on
the average daily net assets for the month involved (less any
assets of such Portfolios held in non interest bearing special
deposits with a Federal Reserve Bank).
All rights of compensation under this Agreement for services
performed as of the termination date shall survive the
termination of this Agreement.
4. OTHER EXPENSES. The Investment Manager shall pay all expenses
of printing and mailing reports, prospectuses; statements of
additional information, and sales literature relating to the
solicitation of prospective clients. The Trust shall pay all
expenses relating to printing and mailing to existing
Shareholders prospectuses, statements of additional
information, proxy solicitation material and shareholder
reports.
5. EXCESS EXPENSES. If the expenses for any Portfolio for any
fiscal year (including fees and other amounts payable to the
Investment Manager, but excluding interest, taxes, brokerage
costs, litigation, other extraordinary costs) as calculated
every business day would exceed the expense limitations
imposed on investment companies by any applicable statute or
regulatory authority of any jurisdiction in which shares of a
Portfolio are qualified for offer and sale, the Investment
Manager shall bear such excess cost. However, the Investment
Manager will not bear expenses of any Portfolio that would
result in the Portfolio's inability to qualify as a regulated
investment company under provisions of the Internal Revenue
Code.
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Payment of expenses by the Investment Manager pursuant to this
Section 5 shall be settled on a monthly basis (subject to
fiscal year end reconciliation) by a reduction in the fee
payable to the Investment Manager for such month pursuant to
Section 3 and, if such reduction shall be insufficient to
offset such expenses, by reimbursing the Trust.
6. REPORTS. The Trust and the Investment Manager agree to furnish
to each other, if applicable, current prospectuses, proxy
statements, reports to shareholders, certified copies of their
financial statements, and such other information with regard
to their affairs as each may reasonably request.
7. STATUS OF INVESTMENT MANAGER. The services of the Investment
Manager to the Trust are not to be deemed exclusive, and the
Investment Manager shall be free to render similar services to
others so long as its services to the Trust are not impaired
thereby. The Investment Manager shall 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.
8. CERTAIN RECORDS. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule
31a-2 promulgated under the Investment Company Act which are
prepared or maintained by the Investment Manager on behalf of
the Trust are the property of the Trust and will be
surrendered promptly to the Trust on request.
9. LIMITATION OF LIABILITY OF INVESTMENT MANAGER. The duties of
the Investment Manager shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may
be asserted against the Investment Manager hereunder. The
Investment Manager 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 carrying out its
duties hereunder, except a loss resulting from willful
misfeasance, bad faith or gross negligence in the performance
of its duties, or by reason of reckless disregard of its
obligations and duties hereunder, except as may otherwise be
provided under provisions of applicable state law or Federal
securities law which cannot be waived or modified hereby. (As
used in this Paragraph 9, the term "Investment Manager" shall
include directors, officers, employees and other corporate
agents of the Investment Manager as well as the company
itself).
10. PERMISSIBLE INTERESTS. Trustees, agents, and shareholders of
the Trust are or may be interested in the Investment Manager
(or any successor thereof) as directors, partners, officers,
or members, or otherwise; directors, partners, officers,
agents, and members of the Investment Manager are or may be
interested in the Trust as Trustees, shareholders or
otherwise; and the Investment Manager (or any successor) is or
may be interested in the Trust as a shareholder or otherwise.
In addition, brokerage transactions for the Trust may be
effected through affiliates of the Investment Manager if
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approved by the Board of Trustees, subject to the rules and
regulations of the Securities and Exchange Commission.
11. DURATION AND TERMINATION. This Agreement, unless sooner
terminated as provided herein, shall remain in effect until
two years from date of execution, and thereafter, for periods
of one year so long as such continuance thereafter is
specifically approved at least annually (a) by the vote of a
majority of those Trustees of the Trust who are not parties to
this Agreement or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on
such approval, and (b) by the Trustees of the Trust or by vote
of a majority of the outstanding voting securities of the
Trust; provided, however, that if the shareholders of the
Trust fail to approve the Agreement as provided herein, the
Investment Manager may continue to serve hereunder in the
manner and to the extent permitted by the Investment Company
Act and rules and regulations thereunder. The foregoing
requirement that continuance of this Agreement be
"specifically approved at least annually" shall be construed
in a manner consistent with the Investment Company Act and the
rules and regulations thereunder.
This Agreement may be terminated at any time, without the
payment of any penalty by vote of a majority of the Trustees
of the Trust or by vote of a majority of the outstanding
voting securities of the Trust on not less than 30 days nor
more than 60 days written notice to the Investment Manager, or
by the Investment Manager at any time without the payment of
any penalty, on 90 days written notice to the Fund. This
Agreement will automatically and immediately terminate in the
event of its assignment. Any notice under this Agreement shall
be given in writing, addressed and delivered, or mailed
postpaid, to the other party at any office of such party.
As used in this Section 11, the terms "assignment",
"interested persons", and a "vote of a majority of the
outstanding voting securities" shall have the respective
meanings set forth in the Investment Company Act and the rules
and regulations thereunder; subject to such exemptions as may
be granted by the Securities and Exchange Commission under
said Act.
12. NOTICE. Any notice required or permitted to be given by either
party to the other Shall be deemed sufficient if sent by
registered or certified mail, postage prepaid, addressed by
the party giving notice to the other party at the fast address
furnished by the other party to the party giving notice: if to
the Fund, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: President, and if to the Investment Manager at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: President.
13. SEVERABILITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
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14. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the Commonwealth of Pennsylvania and the
applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the Commonwealth of
Pennsylvania or any of the provisions herein, conflict with
the applicable provisions of the Investment Company Act, the
latter shall control.
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of the Commonwealth of Massachusetts and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as Trustees,
and are not binding upon any of the Trustees, officers, or shareholders of the
Trust individually but binding only upon the assets and property of the Trust.
Further, the obligations of the Trust with respect to any one Portfolio shall
not be binding upon any other Portfolio.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the day and year first written above.
▇▇▇▇▇▇ FUNDS ▇▇▇▇▇▇ INVESTMENT MANAGEMENT LLC
By:_________________________ By:_____________________________
Attest:_____________________ Attest:_________________________
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Schedule A dated
November 17, 2006
to the Amended and Restated
Investment Management Agreement
dated November 17, 2006
between ▇▇▇▇▇▇ Funds (the "Trust")
and ▇▇▇▇▇▇ Investment Management LLC (the "Investment Manager")
Pursuant to Article 3, the Trust shall pay the Investment Manager
compensation at an annual rate as follows:
PORTFOLIO FEE
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Small Cap Equity Fund 0.95%
Midcap Equity Fund 0.75%
