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XXXXX XXXXXX CONCERT SERIES INC.
CONSERVATIVE PORTFOLIO
ASSET ALLOCATION AND ADMINISTRATION AGREEMENT
AGREEMENT, made this ____ day of ________ 1996 between Xxxxx
Xxxxxx Concert Series Inc., a Maryland corporation (the "Fund"), with
respect to the Conservative Portfolio (the "Portfolio") and Xxxxx
Xxxxxx Mutual Funds Management Inc., a New York corporation ("Funds
Management").
W I T N E S S E T H:
WHEREAS, the Portfolio is a series of the Fund which will operate as
an open-end management investment company registered under the Investment
Company Act of 1940, as amended, and the rules thereunder (the "1940 Act");
and
WHEREAS, the Fund has been organized for the purpose of investing its
assets in open-end management investment companies or series thereof that
are or will be part of a group of investment companies that holds itself
out to investors as related companies for purposes of investment and investor
services (i) for which Xxxxx Xxxxxx Inc. ("Xxxxx Xxxxxx") or any entity
controlling, controlled by, or under common control with Xxxxx Xxxxxx now
or in the future acts as principal underwriter or (ii) for which Xxxxx
Xxxxxx, Funds Management or Xxxxx Xxxxxx Strategy Advisers Inc. ("SBSA")
or any entity controlling, controlled by, or under common control with Xxxxx
Xxxxxx, Funds Management or SBSA now or in the future acts as investment
adviser (collectively, the "Underlying Xxxxx Xxxxxx Funds"), as well as
repurchase agreements, and desires to avail itself of the experience, sources
of information, advice, assistance and facilities available to Funds
Management and to have Funds Management perform for it various asset
allocation and administration services; and Funds Management is willing to
furnish such advice and services on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed as follows:
1. The Fund on behalf of the Portfolio hereby appoints Funds
Management to act as investment manager to the Portfolio on the terms set
forth in this Agreement. Funds Management accepts such appointment and
agrees to render the services herein described, for the compensation herein
provided.
2. Subject to the supervision of the Board of Directors of the
Fund (the "Board"), Funds Management shall manage the investment of the
Portfolio's assets and provide investment research advice and supervision
of the Portfolio's investments in accordance with the Portfolio's investment
objective, policies and restrictions as stated in the Fund's Registration
Statement under the 1940 Act as it may be amended from time to time (the
"Registration Statement"), and subject to the following understandings:
(a) Funds Management shall provide supervision of the Portfolio's
investments and determine from time to time the investments or
securities that will be purchased, retained or sold by the Portfolio.
Funds Management shall determine the percentage of the Portfolio's
assets invested from time to time in each Underlying Xxxxx Xxxxxx
Fund selected by the Board pursuant to the investment objective and
policies of the Portfolio as set forth in the prospectus forming
part of the Registration Statement and in repurchase agreements.
Funds Management shall allocate investments for the Portfolio among
the Underlying Xxxxx Xxxxxx Funds and repurchase agreements based on
factors it considers relevant, including its outlook for the economy,
financial markets and the relative performance of the Underlying Xxxxx
Xxxxxx Funds. The allocation among the Underlying Xxxxx Xxxxxx Funds
shall be made within investment ranges established by the Board,
which will designate minimum and maximum percentages for each of the
Underlying Xxxxx Xxxxxx Funds..
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Funds Management will also make recommendations to the Board
concerning changes to (i) the Underlying Xxxxx Xxxxxx Funds in which
the Portfolio may invest, (ii) the percentage range of assets that
may be invested by the Portfolio in any one Underlying Xxxxx Xxxxxx
Fund and (iii) the percentage range of assets of the Portfolio that
may be invested in equity funds and fixed income funds (including
money market funds).
(b) Funds Management shall use its best judgment in the
performance of its duties under this Agreement.
(c) Funds Management undertakes to perform its duties and obligations
under this Agreement in conformity with the Registration Statement,
with the requirements of the 1940 Act and all other applicable Federal
and state laws and regulations and with the instructions and
directions of the Board.
(d) Funds Management shall maintain such books and records with
respect to the Portfolio's investments transactions and such books
and records required to be maintained by Funds Management pursuant
to the Rules of the Securities and Exchange Commission ("SEC") under
the 1940 Act and Funds Management shall render to the Board such
periodic and special reports as the Board may reasonably request.
Funds Management agrees that all records that it maintains for the
Portfolio or the Fund are the property of the Fund and it will
surrender promptly to the Fund on behalf of the Portfolio any of such
records upon the Fund's request.
(e) Funds Management will (i) maintain office facilities for the
Fund, (ii) furnish the Portfolio with statistical and research
data, clerical help and accounting, data processing, bookkeeping,
internal auditing and legal services and certain other services
required by the fund and the Portfolio, (iii) prepare reports to each
Portfolio's shareholders and (iv) prepare tax returns, reports to
and filings with the SEC and state Blue Sky authorities.
3. Funds Management will bear all of the expenses of its employees
and overhead in connection with its duties under this Agreement. Funds
Management will also bear all expenses incurred in the operation of the
Portfolio other than the management fee payable under this Agreement, the
fees payable pursuant to the plan adopted pursuant to Rule 12b-1 under
the 1940 Act and extraordinary expenses (such as costs of litigation to
which the Fund is a party and of indemnifying officers and Directors of
the Fund), which will be borne by the Portfolio. The expenses to be borne by
Funds Management include taxes, interest, brokerage fees and commissions, if
any; fees of the Fund's directors, salaries of all officers and employees who
are employed by both it and the Fund, SEC fees and state Blue Sky
qualification fees; charges of custodians; transfer agent, registrar and
dividend disbursing agent's fees; certain insurance premiums; outside
auditing and legal expenses; costs of maintenance of corporate
existence; investor services (including allocated telephone and
personnel expenses); and costs of preparation and printing of the prospectus
and statement of additional information relating to the Portfolio; cost
of printing and mailing stock certificates, shareholders' reports, notices,
proxy statements and reports to governmental offices; or directors of
the Fund; expenses of membership in investment company associations; and
expenses of fidelity bonding and other insurance premiums.
4. For the services provided and the expenses assumed pursuant
to this Agreement, the Fund will pay to Funds Management out of the
assets of the Portfolio a monthly fee in arrears equal to 0.35% per annum of
the Portfolio's average daily net assets during the month.
5. Funds Management shall authorize and permit any of its directors,
officers and employees who may be elected as directors or officers of the
Fund to serve in the capacities in which they are elected.
6. Funds Management shall not be liable for any error of judgment
or for any loss suffered by the Fund in connection with the matters to which
this Agreement relates, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services (in which
case any award of damages shall be limited to the period and the amount set
forth in Section 36(b)(3) of the 0000 Xxx) or a loss resulting 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 Agreement.
7. This Agreement shall commence upon the effectiveness of
the Fund's Registration Statement and shall continue in effect for a period
of two years from its effective date, and if not sooner terminated, will
continue in effect for successive periods of 12 months thereafter, provided
that each continuance is specifically approved at least annually in
conformity with the requirements of the 1940 Act. This Agreement may be
terminated as a whole at any time by the Fund on behalf of the Portfolio,
without the payment of any penalty, upon the vote of a majority of the
Board or the vote of a majority of the outstanding voting securities (as
defined in the 0000 Xxx) of the Portfolio, or by Funds Management, on 60
days' written notice by either party to the other. This Agreement shall
terminate automatically in the event of its assignment (as defined in the
1940 Act).
8. Nothing in this Agreement shall limit or restrict the right of
any of Funds Management's directors, officers, or employees who may also
be a director, officer or employee of the Fund to engage in any other business
or to devote his time and attention in part to management or other aspects
of any business, whether of a similar or a dissimilar nature, nor limit or
restrict the Manger's right to engage in any other business or to render
services of any kind to any other corporation, firm, individual or
association. The investment management services provided by Funds Management
hereunder are not to be deemed exclusive, and Funds Management shall be free
to render similar services to others.
9. Any notice or other communication required to be given pursuant
to this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage prepaid, (i) to Funds Management at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Secretary; or (ii) to the Fund
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Secretary.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to the conflict
of law rules thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day
and year first above written.
XXXXX XXXXXX CONCERT SERIES INC. XXXXX XXXXXX MUTUAL
on behalf of the CONSERVATIVE PORTFOLIO FUNDS MANAGEMENT INC.
By: By:
Xxxxx X. XxXxxxxx Xxxxx X. XxXxxxxx
Chairman of the Board President
Attest: Attest:
Xxx X. Xxxxxxxxxx Xxx X. Xxxxxxxxxx
Assistant Secretary Deputy General Counsel
