EXHIBIT 99.23(d)(10)
XXXX XXXXXXXXX SERIES TRUST
MANAGEMENT CONTRACT
Management Contract executed as of January 30, 2004, between XXXX XXXXXXXXX
SERIES TRUST, a Massachusetts business trust (the "Trust"), on behalf of the
Laudus Xxxxxxxxx U.S. Large Capitalization Fund (the "Fund"), and XXXXXXX
XXXXXX INVESTMENT MANAGEMENT, INC., a Delaware corporation (the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is agreed
as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO THE TRUST.
(a) Subject always to the control of the trustees of the Trust (the
"Trustees") and to such policies as the Trustees may determine, the
Manager will, at its expense, (i) furnish continuously an investment
program for the Fund and will make investment decisions on behalf of the
Fund and place all orders for the purchase and sale of its portfolio
securities, and (ii) furnish all necessary office space and equipment,
provide bookkeeping and clerical services required to perform its duties
in clause (i) above and pay all salaries, fees and expenses of the
Trustees and officers of the Trust who are affiliated persons of the
Manager. In the performance of its duties, the Manager will comply with
the provisions of the Second Amended and Restated Agreement and
Declaration of Trust and By-laws of the Trust, each as amended from time
to time, and the Fund's stated investment objectives, policies and
restrictions.
(b) In the selection of brokers, dealers or futures commissions merchants
(collectively, "brokers") and the placing of orders for the purchase and
sale of portfolio investments for the Fund, the Manager shall seek to
obtain the most favorable price and execution available, except to the
extent it may be permitted to pay higher brokerage commissions for
brokerage and research services as described below. In using its best
efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all
times, shall consider all factors it deems relevant, including, by way
of illustration, the price, the size of the transaction, the nature of
the market for the security, the amount of the commission, the timing of
the transaction taking into account market prices and trends, the
reputation, experience and financial stability of the broker involved
and the quality of service rendered by the broker in other transactions.
Subject to such policies as the Trustees may determine, the Manager
shall not be deemed to have acted unlawfully or to have breached any
duty created by this Contract or otherwise solely by reason of its
having caused the Trust to pay, on behalf of the Fund, a broker that
provides brokerage and research services to the Manager or any
affiliated person of the Manager an amount of commission for effecting a
portfolio investment transaction in excess of the amount of commission
another broker would have charged for effecting that transaction, if the
Manager determines in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research
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services provided by such broker, viewed in terms of either that particular
transaction or the Manager's overall responsibilities with respect to the
Fund and to other clients of the Manager and any affiliated person of the
Manager as to which the Manager or any affiliated person of the Manager
exercises investment discretion.
(c) Notwithstanding Section 1(a) above and subject to the provisions of the
Second Amended and Restated Agreement and Declaration of Trust of the
Trust and the Investment Company Act of 1940, as amended (the "1940
Act"), the Manager, at its expense, may select and contract with an
investment sub-adviser (the "Subadviser") for the Fund to perform,
subject to the supervision of the Manager, some or all of the services
for which it is responsible pursuant to paragraphs (a) and (b) of this
Section 1 (including, but not limited to, the selection of brokers). The
Manager will compensate the Subadviser for its services to the Fund.
(d) The Manager shall not be obligated to pay any expenses of or for the
Trust or of or for the Fund not expressly assumed by the Manager pursuant to
this Section 1 other than as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Trust may be a shareholder, partner, director, officer or
employee of, or be otherwise interested in, the Manager, and in any person
controlling, controlled by or under common control with the Manager, and that
the Manager and any person controlling, controlled by or under common control
with the Manager may have an interest in the Trust. It is also understood
that the Manager and persons controlling, controlled by or under common
control with the Manager have and may have advisory, management service,
distribution or other contracts with other organizations and persons, and may
have other interests and businesses.
3. COMPENSATION TO BE PAID BY THE TRUST TO THE MANAGER.
The Fund will pay to the Manager as compensation for the Manager's services
rendered, for the facilities furnished and for the expenses borne by the
Manager pursuant to Section 1, a fee, computed and paid monthly at the annual
rate (based on the number of days elapsed through the end of the month) of
0.75% of the Fund's net assets up to $1 billion; 0.70% of the Fund's net
assets over $1 billion up to $2 billion; and 0.675% of the Fund's net assets
over $2 billion, each as of the last business day of the month. Such fee
shall be payable for each month within five (5) business days after the end
of such month.
In the event that the expenses of the Fund exceed any expense limitation
which the Manager may, by written notice to the Trust, voluntarily declare to
be effective with respect to the Fund, subject to such terms and conditions
as the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall bear the Fund's
expenses to the extent required by such expense limitation.
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If the Manager shall serve for less than the whole of a month, the foregoing
compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment (as defined in the 1940 Act); and
this Contract shall not be materially amended unless such amendment is
approved by the affirmative vote of a majority of the outstanding shares of
the Fund, and by the vote, cast in person at a meeting called for the purpose
of voting on such approval, of a majority of the Trustees who are not
interested persons of the Trust or of the Manager.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall continue in effect until January 30, 2006 and thereafter
for successive annual periods, provided that such continuance is specifically
approved at least annually (a) by the affirmative vote of a majority of the
outstanding shares of the Fund or by the Trust's Board of Trustees, and (b)
by the vote of a majority of the Trust's trustees who are not parties to this
agreement or "interested persons" (as defined in the 0000 Xxx) of any such
party, cast in person at a meeting called for the purpose of voting on such
approval, or (c) as otherwise permitted by the 1940 Act or the rules and
regulations thereunder. This Contract may be terminated at any time by a vote
of a majority of the Fund's outstanding voting securities or by a vote of a
majority of the Trust's entire Board of Trustees on 60 days' written notice
to the Manager or by the Manager on 60 days' written notice to the Trust.
Unless terminated automatically as set forth in Section 4, this Agreement may
only be terminated in accordance with the provisions of this Section 5.
If the continuance of this Contract is submitted to the shareholders of the
Fund for their approval and such shareholders fail to approve such
continuance of this Contract as provided herein, the Manager may continue to
serve hereunder in a manner consistent with the 1940 Act and the rules and
regulations thereunder.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority of the
outstanding shares" of the Fund means the affirmative vote, at a duly called
and held meeting of shareholders, (a) of the holders of 67% or more of the
shares of the Fund present (in person or by proxy) and entitled to vote at
such meeting, if the holders of more than 50% of the outstanding shares of
the Fund entitled to vote at such meeting are present in person or by proxy,
or (b) of the holders of more than 50% of the outstanding shares of the Fund
entitled to vote at such meeting, whichever is less.
For the purposes of this Contract, the terms "affiliated person," "control,"
"interested person" and "assignment" shall have their respective meanings
defined in the 1940 Act and the rules and regulations thereunder, subject,
however, to such exemptions as may be
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granted by the Securities and Exchange Commission under said Act; the term
"specifically approve at least annually" shall be construed in a manner
consistent with the 1940 Act and the rules and regulations thereunder; and
the term "brokerage and research services" shall have the meaning given in
the 1934 Act and the rules and regulations thereunder.
7. NONLIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on the
part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Trust, to
the Fund or to any shareholder, officer, director or Trustee thereof, for any
act or omission in the course of, or connected with, rendering services
hereunder.
8. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
A copy of the Second Amended and Restated Agreement and Declaration of Trust
of the Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Trustees as Trustees and not individually and that the
obligations of this instrument are not binding upon any of the Trustees or
shareholders individually but are binding only upon the assets and property
of the Fund.
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IN WITNESS WHEREOF, XXXX XXXXXXXXX SERIES TRUST and XXXXXXX XXXXXX INVESTMENT
MANAGEMENT, INC. have each caused this instrument to be signed in duplicate
on its behalf by its duly authorized representative, all as of the day and
year first above written.
XXXX XXXXXXXXX SERIES TRUST
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: President
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XXXXXXX XXXXXX INVESTMENT
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: President and Chief Executive Officer
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