EX-99.d.15
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 7/th/ day of December, 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
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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 8 hereof, exercises investment discretion. The Advisor will promptly
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. Reimbursement Of Fee Waivers And Expense Reimbursements. If on any
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day during which this Agreement is in effect, the estimated annualized Operating
Expenses (as defined below) of the Series for that day are less than the
Operating Expense Limit (as defined below), the Advisor shall be entitled to
reimbursement by the Series of the investment management fees waived or reduced,
and of any expense reimbursements or similar payments remitted by the Advisor to
the Series pursuant to the Advisor's agreement to limit the Series' Operating
Expenses (the "Reimbursement Amount") during any of the previous five (5) years,
to the extent that the Series' annualized Operating Expenses, plus the amount so
reimbursed, equals,
for such day, the Operating Expense Limit, provided that such amount paid to the
Advisor will in no event exceed the total Reimbursement Amount and will not
include any amounts previously reimbursed by the Series to the Advisor. For
purposes of this Section 4: (i) "Operating Expenses" shall include the ordinary
operating expenses incurred by the Series in any fiscal year, including, without
limitation, management fees paid to the Advisor, but excluding interest, taxes,
brokerage commissions, other investment-related costs and extraordinary expenses
not incurred in the ordinary course of the Series' business; and (ii) "Operating
Expense Limit" shall mean, with respect to the Series' Class I shares, 1.55% of
average daily net assets of the Series, and shall mean, with respect to the
Series' Class N shares and UBS Investment Fund shares, 1.55% of the Series'
average daily net assets, plus any distribution service fees under Rule 12b-1
under the Investment Company Act of 1940 and/or shareholder service fees as
described in the then current registration statement of the Series.
5. 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.
6. 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.
7. 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.
8. 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.
9. Duration and Termination. This Agreement shall become effective on
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December 7, 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 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 December 7, 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.
10. 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.
11. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of this 7/th/ day of December, 2000.
ATTEST: THE XXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Assistant Secretary Title: President
ATTEST: XXXXXXX PARTNERS, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President
ATTEST: XXXXXXX PARTNERS, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxx
Title: Assistant Secretary Title: Secretary
