Ex-99.d.23
FORM OF INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 30th day of October, 2000 by and between The Xxxxxxx
Funds, a Delaware business trust (the "Trust"), and Xxxxxxx Partners, Inc., a
Delaware corporation (the "Advisor").
1. Duties of the Advisor. The Trust hereby appoints the Advisor to act
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as investment adviser to the Global Biotech Fund (the "Series") for the period
and on such terms as are set forth in this Agreement. The Trust employs the
Advisor to manage the investment and reinvestment of the assets of the Series,
to continuously review, supervise and administer the investment program of the
Series, to determine in its discretion the assets to be held uninvested, to
provide the Trust with records concerning the Advisor's activities that the
Trust is required to maintain, and to render regular reports to the Trust's
officers and Board of Trustees concerning the Advisor's discharge of the
foregoing responsibilities. The Advisor shall discharge the foregoing
responsibilities subject to the control of the officers and the Board of
Trustees of the Trust, and in compliance with the objectives, policies and
limitations set forth in the Trust's prospectuses and statement of additional
information. The Advisor accepts such employment and agrees to render the
services and to provide, at its own expense, the office space, furnishings,
equipment and the personnel required by it to perform the services on the terms
and for the compensation provided herein.
2. Portfolio Transactions. The Advisor shall provide the Series with a
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trading department. The Advisor shall select, and with respect to the use of
any sub-advisers, shall monitor the selection of, the brokers or dealers that
will execute the purchases and sales of securities for the Series and is
directed to use its best efforts to ensure that the best available price and
most favorable execution of securities transactions for the Series are obtained.
Subject to policies established by the Board of Trustees of the Trust and
communicated to the Advisor, it is understood that the Advisor will not be
deemed to have acted unlawfully, or to have breached a fiduciary duty to the
Trust or in respect of the Series, or be in breach of any obligation owing to
the Trust or in respect of the Series under this Agreement, or otherwise, solely
by reason of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a securities
transaction for the Series in excess of the amount of commission another member
of an exchange, broker or dealer would have charged if the Advisor determines in
good faith that the commission paid was reasonable in relation to the brokerage
or research services provided by such member, broker or dealer, viewed in terms
of that particular transaction or the Advisor's overall responsibilities with
respect to the Series and to other funds and advisory accounts for which the
Advisor, or any Sub-Adviser, as defined in Section 7 hereof, exercises
investment discretion. The Advisor will promptly
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communicate to the officers and Trustees of the Trust such information relating
to the Series transactions as they may reasonably request.
3. Compensation of the Advisor. For the services to be rendered by the
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Advisor as provided in Sections 1 and 2 of this Agreement, the Series shall pay
to the Advisor, within five business days after the end of each calendar month,
a monthly fee of one twelfth of 1.15% of the Series' average daily net assets
for the month.
In the event of termination of this Agreement, the fee provided in this
Section 3 shall be paid on a pro rata basis, based on the number of days when
this Agreement was in effect.
4. Reports. The Series and the Advisor agree to furnish to each other
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such information regarding their operations with regard to their affairs as each
may reasonably request.
5. Status of Advisor. The services of the Advisor to the Series are not
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to be deemed exclusive, and the Advisor shall be free to render similar services
to others so long as its services to the Series are not impaired thereby.
6. Liability of Advisor. In the absence of willful misfeasance, bad
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faith, gross negligence or reckless disregard by the Advisor of its obligations
and duties hereunder, the Advisor shall not be subject to any liability
whatsoever to the Series, or to any shareholder of the Series, for any error of
judgment, mistake of law or any other act or omission in the course of, or
connected with, rendering services hereunder including, without limitation, for
any losses that may be sustained in connection with the purchase, holding,
redemption or sale of any security on behalf of the Series.
7. Delegation of Responsibilities to Sub-Advisers. The Advisor may, at
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its expense, select and contract with one or more investment advisers registered
under the Investment Advisers Act of 1940, as amended ("Sub-Advisers") to
perform some or all of the services for the Series for which it is responsible
under this Agreement. The Advisor will compensate any Sub-Adviser for its
services to the Series. The Advisor may terminate the services of any Sub-
Adviser at any time in its sole discretion, and shall at such time assume the
responsibility of such Sub-Adviser unless and until a successor Sub-Adviser is
selected and the requisite approval of the Series' shareholders is obtained.
The Advisor shall continue to have responsibility for all advisory services
furnished by any Sub-Adviser.
8. Duration and Termination. This Agreement shall become effective on
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October 30, 2000, provided that first it is approved by the Board of Trustees of
the Trust, including a majority of those Trustees who are not parties
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to this Agreement or interested persons of any party hereto, in the manner
provided in Section 15(c) of the Investment Company Act of 1940, as amended (the
"1940 Act"), and by the holders of a majority of the outstanding voting
securities of the Series; and shall continue in effect until October 30, 2002.
Thereafter, this Agreement may continue in effect only if such continuance is
approved at least annually by: (i) the Trust's Board of Trustees, or (ii) the
vote of a majority of the outstanding voting securities of the Series; and in
either event by a vote of a majority of those Trustees of the Trust who are not
parties to this Agreement or interested persons of any such party in the manner
provided in Section 15(c) of the 1940 Act. This Agreement may be terminated by
the Trust at any time, without the payment of any penalty, by the Board of
Trustees of the Trust or by vote of the holders of a majority of the outstanding
voting securities of the Series on 60 days' written notice to the Advisor. This
Agreement may be terminated by the Advisor at any time, without the payment of
any penalty, upon 60 days' written notice to the Trust. This Agreement will
automatically 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 the principal office of such party.
As used in this Section 8, the terms "assignment," "interested person," and
"a vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and Section
2(a)(42) of the 1940 Act and Rule 18f-2 thereunder.
9. Name of Advisor. The parties agree that the Advisor has a proprietary
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interest in the name "Xxxxxxx," and the Trust agrees to promptly take such
action as may be necessary to delete from its corporate name and/or the name of
the Series any reference to the name of the Advisor promptly after receipt from
the Advisor of a written request therefor.
10. Severability. If any provisions of this Agreement shall be held or
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made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of this 30th day of October, 2000.
Attest: THE XXXXXXX FUNDS
By:________________________ By:________________________
Name: Name:
Title: Title:
Attest: XXXXXXX PARTNERS, INC.
By:________________________ By:________________________
Name: Name:
Title: Title:
Attest: XXXXXXX PARTNERS, INC.
By:________________________ By:________________________
Name: Name:
Title: Title:
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