Exhibit No. 4(d)
FORM OF INVESTMENT ADVISORY AND ADMINISTRATION CONTRACT
Contract made as of ____________, 1999 between XXXXXXXX XXXXXXXX LIR
MONEY SERIES, a Delaware business trust ("Trust"), and XXXXXXXX XXXXXXXX
ASSET MANAGEMENT INC. ("Xxxxxxxx Xxxxxxxx"), a Delaware corporation
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended ("1934 Act"), and as an investment adviser under the Investment
Advisers Act of 1940, as amended.
WHEREAS the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end investment management company,
and intends to offer for public sale a distinct series of shares of
beneficial interest, LIR Liquid Assets Fund, corresponding to a distinct
portfolio; and
WHEREAS the Trust desires to retain Xxxxxxxx Xxxxxxxx as investment
adviser and administrator to furnish certain administrative, investment
advisory and portfolio management services to the Trust with respect to LIR
Liquid Assets Fund and any other Series to which this Contract may hereafter
be made applicable (each a "Series"), and Xxxxxxxx Xxxxxxxx is willing to
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints Xxxxxxxx Xxxxxxxx as
investment adviser and administrator of the Trust with respect to each Series
for the period and on the terms set forth in this Contract. Xxxxxxxx
Xxxxxxxx accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. DUTIES AS INVESTMENT ADVISER.
(a) Subject to the supervision of the Trust's Board of Trustees
("Board"), Xxxxxxxx Xxxxxxxx will provide a continuous investment program for
each Series, including investment research and management with respect to all
securities and investments and cash equivalents in each Series. Xxxxxxxx
Xxxxxxxx will determine from time to time what securities and other
investments will be purchased, retained or sold by each Series.
(b) Xxxxxxxx Xxxxxxxx agrees that in placing orders with brokers, it
will attempt to obtain the best net result in terms of price and execution;
provided that, on behalf of any Series, Xxxxxxxx Xxxxxxxx may, in its
discretion, use brokers who provide the Series with research, analysis,
advice and similar services to execute portfolio transactions on behalf of
the Series, and Xxxxxxxx Xxxxxxxx, pursuant to Board authorization, may pay
to those brokers in return for brokerage and research services a higher
commission than may be charged by other brokers, subject to Xxxxxxxx
Xxxxxxxx' determining in good faith that such commission is reasonable in
terms either of the particular transaction or of the overall responsibility
of Xxxxxxxx Xxxxxxxx to such Series and its other clients and that the total
commissions paid by such Series will be reasonable in relation to the
benefits to the Series over the long term. In no instance will portfolio
securities be purchased from or sold to Xxxxxxxx Xxxxxxxx, or any affiliated
person thereof, except in accordance with the federal securities laws and the
rules and regulations thereunder. Whenever Xxxxxxxx Xxxxxxxx simultaneously
places orders to purchase or sell the same security on behalf of a Series and
one or more other accounts advised by Xxxxxxxx Xxxxxxxx, such orders will be
allocated as to price and amount among all such accounts in a manner believed
to be equitable to each account. The Trust recognizes that in some cases
this procedure may adversely affect the results obtained for the Series.
(c) Xxxxxxxx Xxxxxxxx will oversee the maintenance of all books and
records with respect to the securities transactions of each Series, and will
furnish the Board with such periodic and special reports as the Board
reasonably may request. In compliance with the requirements of Rule 31a-3
under the 1940 Act, Xxxxxxxx Xxxxxxxx hereby agrees that all records which it
maintains for the Trust are the property of the Trust, agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act any records which it
maintains for the Trust and which are required to be maintained by Rule 31a-1
under the 1940 Act and further agrees to surrender promptly to the Trust any
records which it maintains for the Trust upon request by the Trust.
(d) Xxxxxxxx Xxxxxxxx will oversee the computation of the net asset
value and the net income of each Series as described in the currently
effective registration statement of the Trust under the Securities Act of
1933, as amended, and the 1940 Act and any supplements thereto ("Registration
Statement") or as more frequently requested by the Board.
(e) The Trust hereby authorizes Xxxxxxxx Xxxxxxxx and any entity or
person associated with Xxxxxxxx Xxxxxxxx which is a member of a national
securities exchange to effect any transaction on such exchange for the
account of any Series, which transaction is permitted by Section 11(a) of the
1934 Act, and the Trust hereby consents to the retention of compensation by
Xxxxxxxx Xxxxxxxx or any person or entity associated with Xxxxxxxx Xxxxxxxx.
3. DUTIES AS ADMINISTRATOR. Xxxxxxxx Xxxxxxxx will administer the
affairs of the Trust with respect to each Series subject to the supervision
of the Board and the following understandings:
(a) Xxxxxxxx Xxxxxxxx will supervise all aspects of the operations of
the Trust and each Series, including oversight of transfer agency, custodial
and accounting services, except as hereinafter set forth; provided, however,
that nothing herein contained shall be deemed to relieve or deprive the Board
of its responsibility for and control of the conduct of the affairs of the
Trust and each Series.
(b) Xxxxxxxx Xxxxxxxx will provide the Trust and each Series with
such corporate, administrative and clerical personnel (including officers of
the Trust) and services as are reasonably deemed necessary or advisable by
the Board, including the maintenance of certain books and records of the
Trust and each Series.
(c) Xxxxxxxx Xxxxxxxx will arrange, but not pay, for the periodic
preparation, updating, filing and dissemination (as applicable) of the
Trust's Registration Statement, proxy material, tax returns and required
reports to each Series' shareholders and the Securities and Exchange
Commission and other appropriate federal or state regulatory authorities.
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(d) Xxxxxxxx Xxxxxxxx will provide the Trust and each Series with, or
obtain for it, adequate office space and all necessary office equipment and
services, including telephone service, heat, utilities, stationery supplies
and similar items.
(e) Xxxxxxxx Xxxxxxxx will provide the Board on a regular basis with
economic and investment analyses and reports and make available to the Board
upon request any economic, statistical and investment services normally
available to institutional or other customers of Xxxxxxxx Xxxxxxxx.
4. FURTHER DUTIES. In all matters relating to the performance of
this Contract, Xxxxxxxx Xxxxxxxx will act in conformity with the Trust
Instrument, By-Laws and Registration Statement of the Trust and with the
instructions and directions of the Board and will comply with the
requirements of the 1940 Act, the rules thereunder, and all other applicable
federal and state laws and regulations.
5. DELEGATION OF XXXXXXXX XXXXXXXX' DUTIES AS INVESTMENT ADVISER AND
ADMINISTRATOR. With respect to any or all Series, Xxxxxxxx Xxxxxxxx may
enter into one or more contracts ("Sub-Advisory or Sub-Administration
Contract") with a sub-adviser or sub-administrator in which Xxxxxxxx Xxxxxxxx
delegates to such sub-adviser or sub-administrator any or all its duties
specified in Paragraphs 2 and 3 of this Contract, provided that each
Sub-Advisory or Sub-Administration Contract imposes on the sub-adviser or
sub-administrator bound thereby all applicable duties and conditions to which
Xxxxxxxx Xxxxxxxx is subject by Paragraphs 2, 3 and 4 of this Contract, and
further provided that each Sub-Advisory or Sub-Administration Contract meets
all requirements of the 1940 Act and rules thereunder.
6. SERVICES NOT EXCLUSIVE. The services furnished by Xxxxxxxx
Xxxxxxxx hereunder are not to be deemed exclusive and Xxxxxxxx Xxxxxxxx shall
be free to furnish similar services to others so long as its services under
this Contract are not impaired thereby. Nothing in this Contract shall limit
or restrict the right of any director, officer or employee of Xxxxxxxx
Xxxxxxxx, who may also be a Trustee, officer or employee of the Trust, to
engage in any other business or to devote his or her time and attention in
part to the management or other aspects of any other business, whether of a
similar nature or a dissimilar nature.
7. EXPENSES.
(a) For the services provided and expenses assumed pursuant to this
Contract with respect to the Series, the Trust will pay to Xxxxxxxx Xxxxxxxx
a fee, computed daily and paid monthly. Where the services are provided
directly by Xxxxxxxx Xxxxxxxx or an affiliate, the fees will be limited to
reimbursement of Xxxxxxxx Xxxxxxxx' direct administrative costs and expenses
and will exclude any profit or overhead charges. Where Xxxxxxxx Xxxxxxxx
arranges for an unaffiliated person to provide services, the Trust will
reimburse Xxxxxxxx Xxxxxxxx for the cost of the services provided by the
unaffiliated person, but no additional profit or overhead charge will be
included. (Hereinafter, the fees and expenses payable by the Fund under this
Paragraph 7(a) are referred to as "Direct Expenses.")
(b) Subject to Paragraph 7(a), the Direct Expenses borne by each
Series will include but not be limited to the following (or each Series'
proportionate share of the following): (i) expenses of paying the salaries
and expenses of the Trust's officers and other personnel engaged in
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administering the Trust's business; (ii) expenses of monitoring financial and
shareholder accounting services provided by the Trust's custodian and
transfer agent, respectively; (iii) expenses of responding to shareholder
inquiries and disseminating information to shareholders; (iv) expenses of
monitoring compliance with the Trust's registration statements and other
operating documents, with federal and state securities laws and rules
thereunder and with the Internal Revenue Code of 1986, as amended; (v)
expenses of preparing semi-annual and annual reports to shareholders; (vi)
expenses of preparing filings required by the SEC; (vii) expenses of
preparing federal, state and local tax returns; (viii) expenses of paying
notice filing fees under state securities laws; (ix) expenses of organizing
annual and special meetings of shareholders; (ix) the cost (including
brokerage commissions) of securities purchased or sold by the Series and any
losses incurred in connection therewith; (x) expenses incurred on behalf of
the Series by Xxxxxxxx Xxxxxxxx under this Contract; (xi) expenses of
organizing the Trust and the Series; (xiii) filing fees and expenses relating
to the registration and qualification of the Series' shares and the Trust
under federal and/or state securities laws and maintaining such registration
and qualifications; (xiv) fees and salaries payable to the Trust's Trustees
and officers who are not interested persons of the Trust or Xxxxxxxx
Xxxxxxxx; (xv) all expenses incurred in connection with the Trustees'
services, including travel expenses; (xvi) taxes (including any income or
franchise taxes) and governmental fees; (xvii) costs of any liability,
uncollectible items of deposit and other insurance and fidelity bonds;
(xviii) any costs, expenses or losses arising out of a liability of or claim
for damages or other relief asserted against the Trust or Series for
violation of any law; (xvix) legal, accounting and auditing expenses,
including legal fees of special counsel for those Trustees of the Trust who
are not interested persons of the Trust; (xx) charges of custodians, transfer
agents and other agents (including any lending agent); (xxi) costs of
preparing share certificates; (xxii) expenses of setting in type and printing
prospectuses and supplements thereto, statements of additional information
and supplements thereto, reports and proxy materials for existing
shareholders; (xxiii) costs of mailing prospectuses and supplements thereto,
statements of additional information and supplements thereto, reports and
proxy materials to existing shareholders; (xxiv) any extraordinary expenses
(including fees and disbursements of counsel, costs of actions, suits or
proceedings to which the Trust is a party and the expenses the Trust may
incur as a result of its legal obligation to provide indemnification to its
officers, Trustees, agents and shareholders) incurred by the Trust or Series;
(xxv) fees, voluntary assessments and other expenses incurred in connection
with membership in investment company organizations; (xxvi) the cost of
mailing and tabulating proxies and costs of meetings of shareholders, the
Board and any committees thereof; (xxvii) the cost of investment company
literature and other publications provided by the Trust to its Trustees and
officers; (xxviii) costs of mailing, stationery and communications equipment;
(xxix) expenses incident to any dividend, withdrawal or redemption options;
(xxx) charges and expenses of any outside pricing service used to value
portfolio securities; and (xxxi) interest on borrowings of the Series; and
(xxxii) any other costs and expenses incurred in managing the portfolio of a
Series.
(c) The Trust or a Series may pay directly any Direct Expense
incurred by it in its normal operations and, if any such payment is consented
to by Xxxxxxxx Xxxxxxxx and acknowledged as otherwise payable by Xxxxxxxx
Xxxxxxxx pursuant to this Contract, the Series may reduce any amounts
otherwise payable to Xxxxxxxx Xxxxxxxx pursuant to this Contract. To the
extent that such deductions exceed the amounts payable to Xxxxxxxx Xxxxxxxx
on any monthly payment date, such excess shall be carried forward and
deducted in the same manner from the fee payable on succeeding monthly
payment dates.
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(d) Xxxxxxxx Xxxxxxxx will assume the cost of any compensation for
services provided to the Trust received by the officers of the Trust and by
those Trustees who are interested persons of the Trust.
(e) The payment or assumption by Xxxxxxxx Xxxxxxxx of any expenses of
the Trust or a Series that Xxxxxxxx Xxxxxxxx is not required by this Contract
to pay or assume shall not obligate Xxxxxxxx Xxxxxxxx to pay or assume the
same or any similar expense of the Trust or a Series on any subsequent
occasion.
8. COMPENSATION.
(a) Xxxxxxxx Xxxxxxxx shall not receive any compensation other
reimbursement for the Series' Direct Expenses, as provided in paragraph 7.
(b) For the services provided and the expenses assumed pursuant to
this Contract with respect to any Series as to which this Contract hereafter
is made applicable, the Trust will pay to Xxxxxxxx Xxxxxxxx from the assets
of such Series compensation in an amount to be agreed upon in a written fee
agreement ("Fee Agreement") executed by the Trust on behalf of such Series
and by Xxxxxxxx Xxxxxxxx. All such Fee Agreements shall provide that they
are subject to all terms and conditions of this Contract.
(c) Any compensation or reimbursement due to Xxxxxxxx Xxxxxxxx shall
be computed daily and paid monthly to Xxxxxxxx Xxxxxxxx on or before the
first business day of the next succeeding calendar month.
(d) If this Contract becomes effective or terminates before the end
of any month, Xxxxxxxx Xxxxxxxx' compensation or reimbursement for the period
from the effective day to the end of the month or from the beginning of such
month to the date of termination, as the case may be, shall be prorated
according to the proportion which such period bears to the full month in
which such effectiveness or termination occurs.
9. LIMITATION OF LIABILITY OF XXXXXXXX XXXXXXXX. Xxxxxxxx Xxxxxxxx
and its delegates, including any Sub-Adviser or Sub-Administrator to any
Series or the Trust, shall not be liable for any error of judgment or mistake
of law or for any loss suffered by any Series, the Trust or any of its
shareholders, in connection with the matters to which this Contract relates,
except to the extent that such a loss results from willful misfeasance, bad
faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Contract. Any person, even though also an officer, director, employee, or
agent of Xxxxxxxx Xxxxxxxx, who may be or become an officer, Trustee,
employee or agent of the Trust shall be deemed, when rendering services to
any Series or the Trust or acting with respect to any business of such Series
or the Trust, to be rendering such service to or acting solely for the Series
or the Trust and not as an officer, director, employee, or agent or one under
the control or direction of Xxxxxxxx Xxxxxxxx even though paid by it.
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10. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the date hereabove
written provided that, with respect to any Series, this Contract shall not
take effect unless it has first been approved (i) by a vote of a majority of
those Trustees of the Trust who are not parties to this Contract or
interested persons of any such party cast in person at a meeting called for
the purpose of voting on such approval, and (ii) by vote of a majority of
that Series' outstanding voting securities.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from the above written date. Thereafter, if
not terminated, this Contract shall continue automatically for successive
periods of twelve months each, provided that such continuance is specifically
approved at least annually (i) by a vote of a majority of those Trustees of
the Trust who are not parties to this Contract or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on
such approval, and (ii) by the Board or, with respect to any given Series, by
vote of a majority of the outstanding voting securities of such Series.
(c) Notwithstanding the foregoing, with respect to any Series this
Contract may be terminated at any time, without the payment of any penalty,
by vote of the board or by a vote of a majority of the outstanding voting
securities of such Series on sixty days' written notice to Xxxxxxxx Xxxxxxxx
or by Xxxxxxxx Xxxxxxxx at any time, without the payment of any penalty, on
sixty days' written notice to the Trust. Termination of this Contract with
respect to any given Series shall in no way affect the continued validity of
this Contract or the performance thereunder with respect to any other
Series. This Contract will automatically terminate in the event of its
assignment.
11. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS OF THE
TRUST. The Trustees of the Trust and the shareholders of any Series shall
not be liable for any obligations of any Series or the Trust under this
Contract, and Xxxxxxxx Xxxxxxxx agrees that, in asserting any rights or
claims under this Contract, it shall look only to the assets and property of
the Trust in settlement of such right or claim, and not to such Trustees or
shareholders.
12. AMENDMENT OF THIS CONTRACT. No provision of this Contract 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 of this Contract
as to any given Series shall be effective until approved by vote of a
majority of such Series' outstanding voting securities.
13. GOVERNING LAW. This Contract shall be construed in accordance
with the laws of the State of Delaware, without giving effect to the
conflicts of laws principles thereof, and in accordance with the 1940 Act.
To the extent that the applicable laws of the State of Delaware conflict with
the applicable provisions of the 1940 Act, the latter shall control.
14. MISCELLANEOUS. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be
affected thereby. This Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors. As used in
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this Contract, the terms "majority of the outstanding voting securities",
"affiliated person", "interested person", "assignment", "broker", "investment
adviser", "national securities exchange", "net assets", "prospectus", "sale",
"sell" and "security" shall have the same meaning as such terms have in the
1940 Act and the rules and regulations thereunder, subject to such exemptions
as may be granted by the Securities and Exchange Commission. Where the
effect of a requirement of the 1940 Act reflected in any provision of this
Contract is relaxed by a rule, regulation, order or other action of the
Securities and Exchange Commission, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation, order or other action.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers and delivered as of the day and year first
above written.
Attest: XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC.
By
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Attest: XXXXXXXX XXXXXXXX LIR MONEY SERIES
By
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