XXXX XXXXXXX V.A. GROWTH AND INCOME FUND
(a series of Xxxx Xxxxxxx Declaration Trust)
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
January 2, 1998
Xxxx Xxxxxxx Advisers, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Investment Management Contract
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Ladies and Gentlemen:
Xxxx Xxxxxxx Declaration Trust (the "Trust") of which Xxxx Xxxxxxx V.A.
Growth and Income Fund (the "Fund") is a series, has been organized as a
business trust under the laws of the Commonwealth of Massachusetts to engage in
the business of an investment company. The Trust's shares of beneficial interest
are currently divided into fourteen series (including the Fund), each series
representing the entire undivided interest in a separate portfolio of assets.
Series may be established or terminated from time to time by action of the Board
of Trustees of the Trust. This Agreement relates solely to the Fund.
The Board of Trustees of the Trust (the "Trustees") has selected Xxxx
Xxxxxxx Advisers, Inc. (the "Adviser") to provide overall investment advice and
management for the Fund, and to provide certain other services, as more fully
set forth below, and the Adviser is willing to provide such advice, management
and services under the terms and conditions hereinafter set forth.
Accordingly, the Adviser and the Trust, on behalf of the Fund, agree as
follows:
1. Delivery of Documents. The Trust has furnished the Adviser
with copies, properly certified or otherwise authenticated, of
each of the following:
(a) Declaration of Trust of the Trust, dated November 15, 1995,
(the "Declaration of Trust");
(b) By-Laws of the Trust as in effect on the date hereof;
(c) Resolutions of the Trustees selecting the Adviser as the
investment adviser for the Fund and approving the form of this
Agreement and the resolution of the Fund's sole shareholder
approving this Agreement.
(d) Commitments, limitations and undertakings made by the Fund to
state securities or "blue sky" authorities for the purpose of
qualifying shares of the Fund for sale in such states; and
(e) The Trust's Code of Ethics.
The Trust will furnish the Adviser from time to time with copies,
properly certified or otherwise authenticated, of all amendments of or
supplements to the foregoing, if any.
2. Investment and Management Services. The Adviser will use its best
efforts to provide to the Fund continuing and suitable investment
programs with respect to investments, consistent with the investment
objectives, policies and restrictions of the Fund. In the performance
of the Adviser's duties hereunder, subject always (x) to the provisions
contained in the documents delivered to the Adviser pursuant to Section
1, as each of the same may from time to time be amended or
supplemented, and (y) to the limitations set forth in the Fund's
then-current Prospectus and Statement of Additional Information
included in the registration statement of the Trust as in effect from
time to time under the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended (the "1940 Act"), the
Adviser will, at its own expense:
(a) furnish the Fund with advice and recommendations, consistent
with the investment objectives, policies and restrictions of
the Fund, with respect to the purchase, holding and
disposition of portfolio securities including the purchase and
sale of options, alone or in consultation with any sub-adviser
or sub-advisers appointed pursuant to this Agreement and
subject to the provisions of any sub-investment management
contract respecting the responsibilities of such sub-adviser
or sub-advisers;
(b) advise the Fund in connection with policy decisions to be made
by the Trustees or any committee thereof with respect to the
Fund's investments and, as requested, furnish the Fund with
research, economic and statistical data in connection with the
Fund's investments and investment policies;
(c) provide administration of the day-to-day investment operations
of the Fund;
(d) submit such reports relating to the valuation of the Fund's
securities as the Trustees may reasonably request;
(e) assist the Fund in any negotiations relating to the Fund's
investments with issuers, investment banking firms, securities
brokers or dealers and other institutions or investors;
(f) consistent with provisions of Section 8 of this Agreement,
place orders for the purchase, sale or exchange of portfolio
securities with brokers or dealers selected by the Adviser,
provided that in connection with the placing of such orders
and the selection of such brokers or dealers the Adviser shall
seek to obtain execution and pricing within the policy
guidelines determined by the Trustees and set forth in the
Prospectus and Statement of Additional Information of the Fund
as in effect from time to time;
(g) provide office space and equipment and supplies, the use of
accounting equipment when required, and necessary executive,
clerical and secretarial personnel for the administration of
the affairs of the Fund;
(h) from time to time or at any time requested by the Trustees,
make reports to the Fund of the Adviser's performance of the
foregoing services and furnish advice and recommendations with
respect to other aspects of the business and affairs of the
Fund;
(i) maintain all books and records with respect to the Fund's
securities transactions required by the 1940 Act, including
sub-paragraphs (b)(5), (6), (9) and (10) and paragraph (f) of
Rule 31a-1 thereunder (other than those records being
maintained by the Fund's custodian or transfer agent) and
preserve such records for the periods prescribed therefor by
Rule 31a-2 of the 1940 Act (the Adviser agrees that such
records are the property of the Fund and will be surrendered
to the Fund promptly upon request therefor);
(j) obtain and evaluate such information relating to economies,
industries, businesses, securities markets and securities as
the Adviser may deem necessary or useful in the discharge of
the Adviser's duties hereunder;
(k) oversee and use the Adviser's best efforts to assure the
performance of the activities and services of the custodian,
transfer agent or other similar agents retained by the Fund;
and
(l) give instructions to the Fund's custodian as to deliveries of
securities to and from such custodian and transfer of payment
of cash for the account of the Fund.
3. Sub-advisers. The Adviser may engage one or more investment advisers
which are either registered as such or specifically exempt from
registration under the 1940 Act to act as sub-advisers to provide, with
respect to the Fund, certain services set forth in Section 2 of this
Agreement, all as shall be set forth in a written sub-advisory contract
to which the Trust and the Adviser shall be parties. The sub-advisory
contract shall be subject to approval by the vote of a majority of the
Trustees of the Trust who are not interested persons of the Adviser,
the sub-adviser or of the Trust, cast in person at a meeting called for
the purpose of voting on such approval and by the vote of a majority of
the outstanding voting securities of the Fund and otherwise consistent
with the terms of the 1940 Act. Any fee, compensation or expense to be
paid to any sub-adviser shall be paid by the Adviser, and no obligation
to the sub-adviser shall be incurred on the Fund's or Trust's behalf,
except as agreed upon by the Trustees of the Trust and otherwise
consistent with the terms of the 1940 Act.
4. Expenses paid by the Adviser. The Adviser will pay:
(a) the compensation and expenses of all officers and employees of
the Fund;
(b) the expenses of office, rent, telephone and other utilities,
office furniture, equipment, supplies and other expenses of
the Fund;
(c) any other expenses incurred by the Adviser in connection with
the performance of its duties hereunder; and
(d) premiums for such insurance as may be agreed upon between
the Adviser and the Trustees.
5. Expenses of the Fund Not Paid by the Adviser. The Adviser will not
be required to pay any expenses which this Agreement does not expressly
make payable by it. In particular, and without limiting the generality
of the foregoing but subject to the provisions of Section 4, the
Adviser will not be required to pay under this Agreement:
(a) the expenses of organizing the Trust and the Fund (including
without limitation legal, accounting and auditing fees and
expenses incurred in connection with the matters referred to
in this clause (a)), of initially registering the shares of
the Trust under the Securities Act of 1933, as amended, and of
qualifying the shares for sale under state securities laws for
the initial offering and sale of shares;
(b) the compensation and expenses of Trustees who are not
interested persons (as used in this Agreement such term shall
have the meaning specified in the 0000 Xxx) of the Adviser,
and of independent advisers, independent contractors,
consultants, managers and other unaffiliated agents employed
by the Fund other than through the Adviser;
(c) legal (including an allocable portion of the cost of its
employees rendering legal services to the Fund), accounting
and auditing fees and expenses of the Fund;
(d) the fees and disbursements of custodians and depositories of
the Fund's assets, transfer agents, disbursing agents, plan
agents and registrars;
(e) taxes and governmental fees assessed against the Fund's assets
and payable by the Fund;
(f) the cost of preparing and mailing dividends, distributions,
reports, notices and proxy materials to shareholders of the
Fund;
(g) brokers' commissions and underwriting fees; and
(h) the expense of periodic calculations of the net asset value
of the shares of the Fund.
6. Compensation of the Adviser. For all services to be rendered,
facilities furnished and expenses paid or assumed by the Adviser as
herein provided, the Adviser shall be entitled to a fee, paid monthly
in arrears, equal to 0.60% of the average daily net assets of the Fund
for the preceding month.
The "average daily net assets" of the Fund shall be determined on the
basis set forth in the Fund's Prospectus or otherwise consistent with
the 1940 Act and the regulations promulgated thereunder. The Adviser
will receive a pro-rata portion of such monthly fee for any periods in
which the Adviser serves as investment adviser to the Fund for less
than a full month. On any day that the net asset value calculation is
suspended as specified in the Fund's Prospectus, the net asset value
for purposes of calculating the advisory fee shall be calculated as of
the date last determined.
In the event that normal operating expenses of the Fund, exclusive of
certain expenses prescribed by state law, are in excess of any
limitation imposed by the law of a state where the Fund is registered
to sell shares of beneficial interest, the fee payable to the Adviser
will be reduced to the extent required by law, and the Adviser will
make any arrangements that the Adviser is required by law to make.
In addition, the Adviser may agree not to impose all or a portion of
its fee (in advance of the time its fee would otherwise accrue) and/or
undertake to make any other payments or arrangements necessary to limit
the fund's expenses to any level the Adviser may specify. Any fee
reduction or undertaking shall constitute a binding modification of
this agreement while it is in effect but may be discontinued or
modified prospectively by the adviser at any time.
7. Other Activities of the Adviser and Its Affiliates. Nothing herein
contained shall prevent the Adviser or any affiliate or associate of
the Adviser from engaging in any other business or from acting as
investment adviser or investment manager for any other person or
entity, whether or not having investment policies or portfolios similar
to the Fund's; and it is specifically understood that officers,
directors and employees of the Adviser and those of its parent company,
Xxxx Xxxxxxx Mutual Life Insurance Company, or other affiliates may
continue to engage in providing portfolio management services and
advice to other investment companies, whether or not registered, to
other investment advisory clients of the Adviser or of its affiliates
and to said affiliates themselves.
8. Avoidance of Inconsistent Position. In connection with purchases or
sales of portfolio securities for the account of the Fund, neither the
Adviser nor any of its investment management subsidiaries, nor any of
the Adviser's or such investment management subsidiaries' directors,
officers or employees will act as principal or agent or receive any
commission except as may be permitted by the 1940 Act and rules and
regulations promulgated thereunder. If any occasions shall arise in
which the Adviser advises persons concerning the shares of the Fund,
the Adviser will act solely on its own behalf and not in any way on
behalf of the Fund.
Nothing herein contained shall limit or restrict the Adviser or any of
its officers, affiliates or employees from buying, selling or trading
in any securities for its or their own account or accounts. The Fund
acknowledges that the Adviser and its officers, affiliates, and
employees, and its other clients may at any time have, acquire,
increase, decrease or dispose of positions in investments which are at
the same time being acquired or disposed of hereunder. The Adviser
shall have no obligation to acquire with respect to the Fund a position
in any investment which the Adviser, its officers, affiliates or
employees may acquire for its or their own accounts or for the account
of another client, if, in the sole discretion of the Adviser, it is not
feasible or desirable to acquire a position in such investment on
behalf of the Fund. Nothing herein contained shall prevent the Adviser
from purchasing or recommending the purchase of a particular security
for one or more funds or clients while other funds or clients may be
selling the same security.
9. No Partnership or Joint Venture. Neither the Trust, the Fund, nor
the Adviser are partners of or joint venturers with each other and
nothing herein shall be construed so as to make them such partners or
joint venturers or impose any liability as such on any of them.
10. Name of the Trust and Fund. The Trust and the Fund may use the name
"Xxxx Xxxxxxx" or any name or names derived from or similar to the
names "Xxxx Xxxxxxx Advisers, Inc." or "Xxxx Xxxxxxx Mutual Life
Insurance Company" only for so long as this Agreement (or similar
agreement with Xxxx Xxxxxxx Mutual Life Insurance Company or any of its
affiliates or subsidiaries) remains in effect. At such time as this
Agreement or such other agreement shall no longer be in effect, the
Fund will (to the extent that it lawfully can) cease to use such a name
or any other name indicating that the Fund is advised by or otherwise
connected with the Adviser. The Fund acknowledges that it has adopted
the name "Xxxx Xxxxxxx V.A. Growth and Income Fund" through permission
of Xxxx Xxxxxxx Mutual Life Insurance Company, a Massachusetts
insurance company, and agrees that Xxxx Xxxxxxx Mutual Life Insurance
Company reserves to itself and any successor to its business the right
to grant the non-exclusive right to use the name "Xxxx Xxxxxxx" or any
similar name or names to any other corporation or entity, including but
not limited to any investment company of which Xxxx Xxxxxxx Mutual Life
Insurance Company or any subsidiary or affiliate thereof shall be the
investment adviser.
11. Limitation of Liability of the Adviser. The Adviser shall not be
liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this
Agreement relates, except a loss resulting from willful misfeasance,
bad faith or gross negligence on the part of the Adviser in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Any person, even though
also employed by the Adviser, who may be or become an employee of and
paid by the Fund shall be deemed, when acting within the scope of his
employment by the Fund, to be acting in such employment solely for the
Fund and not as the Adviser's employee or agent.
12. Duration and Termination of this Agreement. This Agreement shall
remain in force until the second anniversary of the date upon which
this Agreement was executed by the parties hereto, and from year to
year thereafter, but only so long as such continuance is specifically
approved at least annually by (a) a majority of the Trustees who are
not interested persons of the Adviser or (other than as Board Members)
of the Fund, cast in person at a meeting called for the purpose of
voting on such approval, and (b) either (i) the Trustees or (ii) a
majority of the outstanding voting securities of the Fund. This
Agreement may, on 60 days' written notice, be terminated at any time
without the payment of any penalty by the vote of a majority of the
outstanding voting securities of the Fund, by the Trustees or by the
Adviser. Termination of this Agreement shall not be deemed to terminate
or otherwise invalidate any provisions of any contract between the
Adviser and any other series of the Trust. This Agreement shall
automatically terminate in the event of its assignment. In interpreting
the provisions of this Section 12, the definitions contained in Section
2(a) of the 1940 Act (particularly the definitions of "assignment,"
"interested person" and "voting security"), shall be applied.
13. Amendment of this Agreement. 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, transfer, assignment, sale, hypothecation or pledge of this
Agreement shall be effective until approved by (a) the Trustees,
including a majority of the Trustees who are not interested persons of
the Adviser or (other than as Board Members) of the Fund, cast in
person at a meeting called for the purpose of voting on such approval,
and (b) a majority of the outstanding voting securities of the Fund, as
defined in the 1940 Act.
14. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
15. Severability. The provisions of this Agreement are independent of
and separable from each other, and no provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be deemed invalid or
unenforceable in whole or in part.
16. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. The name
Xxxx Xxxxxxx V.A. Growth and Income Fund is a series designation of the
Trustees under the Trust's Declaration of Trust, dated November 15,
1995, as amended from time to time. The Declaration of Trust has been
filed with the Secretary of State of the Commonwealth of Massachusetts.
The obligations of the Fund are not personally binding upon, nor shall
resort be had to the private property of, any of the Trustees,
shareholders, officers, employees or agents of the Fund, but only the
Fund's property shall be bound. The Fund shall not be liable for the
obligations of any other series of the Trust and no other series shall
be liable for the Fund's obligations hereunder.
Yours very truly,
XXXX XXXXXXX DECLARATION TRUST
On behalf of Xxxx Xxxxxxx V.A. Growth and Income Fund
By: /s/Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
President
The foregoing contract is hereby agreed to as of the date hereof.
XXXX XXXXXXX ADVISERS, INC.
By: /s/ Xxxx A, Xxxxx
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Xxxx X. Xxxxx
Vice President and Secretary
