INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT (the "AGREEMENT") made as of this 19th
day of December, 2014 by and between Xxxxxx Series Trust (the "TRUST"), a
Delaware statutory trust registered as an investment company under the
Investment Company Act of 1940, as amended (the "1940 ACT"), and Xxxxxx Capital
US LLC (the "ADVISER"), a Delaware limited liability company located at 000
Xxxx Xxxxxx, 00 (xx) Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H
WHEREAS, the Board of Trustees (the "BOARD") of the Trust has
selected the Adviser to act as investment adviser to the Trust on behalf of the
series set forth on Schedule A to this Agreement (the "FUND"), as such Schedule
may be amended from time to time upon mutual agreement of the parties, and to
provide certain related services, as more fully set forth below, and to perform
such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Trust and the Adviser do hereby agree as follows:
1. THE ADVISER'S SERVICES.
(a) DISCRETIONARY INVESTMENT MANAGEMENT SERVICES. The Adviser shall
act as investment adviser with respect to the Fund. In such capacity, the
Adviser shall, subject to the supervision of the Board, furnish continuously an
investment program for the Fund, consistent with the investment objectives and
policies of the Fund. The Adviser shall determine, from time to time, what
securities or other investments shall be purchased for the Fund, what securities
shall be held or sold by the Fund and what portion of the Fund's assets shall be
held uninvested in cash, subject always to the provisions of the Trust's
Agreement and Declaration of Trust, By-Laws and its registration statement on
Form N-1A (the "REGISTRATION STATEMENT") under the 1940 Act, and under the
Securities Act of 1933, as amended (the "1933 ACT"), covering Fund shares, as
filed with the Securities and Exchange Commission (the "COMMISSION"), and to the
investment objectives, policies and restrictions of the Fund, as each of the
same shall be from time to time in effect. To carry out such obligations, the
Adviser shall exercise full discretion and act for the Fund in the same manner
and with the same force and effect as the Fund itself might or could do with
respect to purchases, sales or other transactions, as well as with respect to
all other such things necessary or incidental to the furtherance or conduct of
such purchases, sales or other transactions. No reference in this Agreement to
the Adviser having full discretionary authority over the Fund's investments
shall in any way limit the right of the Board, in its sole discretion, to
establish or revise policies in connection with the management of the Fund's
assets or to otherwise exercise its right to control the overall management of
the Fund.
(b) SELECTION OF SUB-ADVISER(S). The Adviser shall have the
authority hereunder to select and retain sub-advisers, including an affiliated
person (as defined under the 0000 Xxx) of the Adviser (each a "SUB-ADVISER"),
for each of the Funds referenced in Schedule A to perform some or all of the
services for which the Adviser is
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responsible pursuant to this Agreement. The Adviser shall supervise the
activities of the sub-adviser(s), and the retention of a sub-adviser by the
Adviser shall not relieve the Adviser of its responsibilities under this
Agreement. Any such sub-adviser shall be registered and in good standing with
the Commission and capable of performing its sub-advisory duties pursuant to a
sub-advisory agreement approved by the Board and, except as otherwise permitted
by the 1940 Act or by rule or regulation, a vote of a majority of the
outstanding voting securities of the applicable Fund.
(c) COMPLIANCE. The Adviser agrees to comply with the requirements of
all applicable federal and state laws, rules and regulations that relate to the
services and relationships described hereunder and to the conduct of its
business as a registered investment adviser. The Adviser also agrees to comply
with the objectives, policies and restrictions set forth in the Registration
Statement, as amended or supplemented, and with any policies, guidelines,
instructions and procedures approved by the Board and provided to the Adviser.
In selecting the Fund's portfolio securities and other instruments, and
performing the Adviser's obligations hereunder, the Adviser shall cause the
Fund to comply with the diversification and source of income requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "CODE"), for
qualification as a regulated investment company if the Fund has elected to be
treated as such. The Adviser shall maintain compliance procedures that it
reasonably believes are adequate to ensure its compliance with the foregoing.
No supervisory activity undertaken by the Board shall limit the Adviser's full
responsibility for any of the foregoing.
(d) PROXY VOTING. The Board has the authority to determine how
proxies with respect to securities that are held by the Fund shall be voted,
and the Board has determined to delegate the authority and responsibility to
vote proxies for the Fund's securities to the Adviser. The Adviser shall
exercise its proxy voting responsibilities in accordance with any instructions
that the Board shall provide from time to time and in accordance with the
Adviser's proxy voting policies and procedures, as presented to the Trust, and
in a manner that the Adviser reasonably believes best serves the interests of
the Fund's shareholders, and at all times in a manner consistent with the
Investment Advisers Act of 1940, as amended (the "ADVISERS ACT") and its
fiduciary responsibilities to the Trust. The Adviser shall provide periodic
reports and keep records relating to proxy voting as the Board may reasonably
request or as may be necessary for the Fund to comply with the 1940 Act and
other applicable law. Any such delegation of proxy voting responsibility to the
Adviser may be revoked or modified by the Board at any time.
The Adviser is authorized to instruct the Fund's custodian and/or broker(s) to
forward promptly to the Adviser or designated service provider copies of all
proxies and shareholder communications relating to securities held in the
portfolio of the Fund (other than materials relating to legal proceedings
against the Fund). The Adviser may also instruct the Fund's custodian and/or
broker(s) to provide reports of holdings in the portfolio of the Fund. The
Adviser has the authority to engage a service provider to advise it with
respect to voting Fund proxies and assist with administrative functions related
to voting Fund proxies. The Trust shall direct the Fund's custodian and/or
broker(s) to provide any assistance requested by the Adviser in facilitating
the use of a
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service provider. In no event shall the Adviser have any responsibility to vote
proxies that are not received on a timely basis. The Trust acknowledges that
the Adviser, consistent with the Adviser's written proxy voting policies and
procedures, may refrain from voting a proxy if, in the Adviser's discretion,
refraining from voting would be in the best interests of the Fund and its
shareholders.
(e) RECORDKEEPING. The Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the Fund,
except as otherwise provided herein or as may be necessary for the Adviser to
supply to the Trust or its Board the information required to be supplied under
this Agreement.
The Adviser shall maintain separate books and detailed records of all
matters pertaining to Fund assets advised by the Adviser, as required by Rule
31a-1 under the 1940 Act (other than those records being maintained by any
administrator, custodian or transfer agent appointed by the Fund) relating to
its responsibilities provided hereunder with respect to the Fund, and shall
preserve such records for the periods and in a manner prescribed therefore by
Rule 31a-2 under the 1940 Act (the "FUND BOOKS AND RECORDS"). The Fund Books
and Records shall be available to the Board promptly upon reasonable request,
shall be delivered to the Trust upon the termination of this Agreement and
shall be available without undue delay during any day the Trust and the Adviser
is open for business.
(f) HOLDINGS INFORMATION AND PRICING. The Adviser shall provide
regular reports regarding Fund holdings, and may, on its own initiative,
furnish the Trust and its Board from time to time with whatever information the
Adviser believes is appropriate for this purpose. The Adviser agrees to notify
the Trust promptly if the Adviser reasonably believes that the value of any
security held by the Fund may not reflect fair value. The Adviser agrees to
provide upon request any pricing information of which the Adviser is aware and
which it is permitted to disclose to the Trust, its Board and/or any Fund
pricing agent to assist in the determination of the fair value of any Fund
holdings for which market quotations are not readily available or as otherwise
required in accordance with the 1940 Act or the Trust's valuation procedures
for the purpose of calculating the Fund net asset value in accordance with
procedures and methods established by the Board.
(g) COOPERATION WITH AGENTS OF THE TRUST. The Adviser agrees to
cooperate with and provide reasonable assistance to the Trust, any Trust
custodian or foreign sub-custodians, any Trust pricing agents and all other
agents and representatives of the Trust with respect to such information
regarding the Fund as such entities may reasonably request from time to time in
the performance of their obligations and provide prompt responses to reasonable
requests made by such persons.
2. CODE OF ETHICS. The Adviser has adopted a written code of ethics
that it reasonably believes complies with the requirements of Rule 17j-1 under
the 1940 Act, which it has provided to the Trust. The Adviser shall use all
reasonable efforts to ensure that its Access Persons (as defined in the
Adviser's Code of Ethics) comply in all material respects with the
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Adviser's Code of Ethics, as in effect from time to time. Upon request, the
Adviser shall provide the Trust with a (i) copy of the Adviser's current Code
of Ethics, as in effect from time to time, and (ii) certification that it has
adopted procedures reasonably designed to prevent Access Persons from engaging
in any conduct prohibited by the Adviser's Code of Ethics. Annually, the
Adviser shall furnish a written report, which complies with the requirements of
Rule 17j-1, concerning the Adviser's Code of Ethics to the Trust's Board. The
Adviser shall respond to requests for information from the Trust as to any
violations of the Code by Access Persons and the sanctions imposed by the
Adviser. The Adviser shall as promptly as practicable notify the Trust of any
material violation of the Code, whether or not such violation relates to a
security held by the Fund.
3. INFORMATION AND REPORTING. The Adviser shall provide the Trust and
its officers with such periodic reports concerning the obligations the Adviser
has assumed under this Agreement as the Trust may from time to time reasonably
request.
(a) NOTIFICATION OF BREACH / COMPLIANCE REPORTS. The Adviser shall
notify the Trust's chief compliance officer as soon as reasonably practicable
upon detection of (i) any material failure to manage the Fund in accordance
with its investment objectives and policies or any applicable law; or (ii) any
material breach of any of the Fund's or the Adviser's policies, guidelines or
procedures. In addition, the Adviser shall provide a quarterly report
regarding the Fund's compliance with its investment objectives and policies,
applicable law, including, but not limited to the 1940 Act and Subchapter M of
the Code, as applicable, and the Fund's policies, guidelines or procedures as
applicable to the Adviser's obligations under this Agreement. The Adviser shall
take such action as it deems necessary to correct any such failure taking into
account the Board's reasonable requests. Upon request, the Adviser shall also
provide the officers of the Trust with supporting certifications as reasonably
required in connection with such certifications of Fund financial statements
and disclosure controls pursuant to the Xxxxxxxx-Xxxxx Act. The Adviser will
promptly notify the Trust in the event (i) the Adviser is served or otherwise
receives notice of any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board, or body, involving the
affairs of the Trust (excluding class action suits in which the Fund is a
member of the plaintiff class by reason of the Fund's ownership of shares in
the defendant) or the compliance by the Adviser with the federal or state
securities laws or (ii) an actual change in control of the Adviser resulting in
an "assignment" (as defined in the 1940 Act) has occurred or is otherwise
proposed to occur.
(b) BOARD AND FILINGS INFORMATION. The Adviser will provide the Trust
with any information reasonably requested regarding its management of the Fund
required for any meeting of the Board, or for any shareholder report, Form
N-CSR, Form N-Q, Form N-PX, Form N-SAR, amended registration statement, proxy
statement, or prospectus supplement to be filed by the Trust with the
Commission. The Adviser will make its officers and employees available, either
in person or, at the mutual convenience of the Board and the Adviser, by
telephone or other electronic media, on due notice, to review the Adviser's
investment management services to the Fund and shall furnish to the Board
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such information as may reasonably be necessary in order for the Board to
evaluate this Agreement or any proposed amendments thereto.
(c) TRANSACTION INFORMATION. The Adviser shall furnish to the Trust
such information concerning portfolio transactions as may be necessary to
enable the Trust or its designated agent to perform such compliance testing on
the Fund and the Adviser's services as the Trust may, in its sole discretion,
determine to be appropriate. The provision of such information by the Adviser
to the Trust or its designated agent in no way relieves the Adviser of its own
responsibilities under this Agreement.
4. BROKERAGE.
(a) PRINCIPAL TRANSACTIONS. In connection with purchases or sales of
securities for the account of the Fund, neither the Adviser nor any of its
directors, officers or employees will act as a principal or agent or receive any
commission except as permitted by the 1940 Act.
(b) PLACEMENT OF ORDERS. The Adviser shall arrange for the placing
of all orders for the purchase and sale of securities for the Fund's account
with brokers or dealers selected by the Adviser. In the selection of such
brokers or dealers and the placing of such orders, the Adviser is directed at
all times to seek for the Fund the most favorable execution and net price
available under the circumstances. It is also understood that it is desirable
for the Fund that the Adviser have access to brokerage and research services
provided by brokers who may execute brokerage transactions at a higher cost to
the Fund than may result when allocating brokerage to other brokers, consistent
with section 28(e) of the Securities Exchange Act of 1934, as amended (the
"1934 ACT") and any Commission staff interpretations thereof. Therefore, the
Adviser is authorized to place orders for the purchase and sale of securities
for the Fund with such brokers, subject to review by the Board from time to
time with respect to the extent and continuation of this practice. It is
understood that the services provided by such brokers may be useful to the
Adviser in connection with its or its affiliates' services to other clients.
(c) AGGREGATED TRANSACTIONS. On occasions when the Adviser deems the
purchase or sale of a security to be in the best interest of the Fund as well
as other clients of the Adviser, the Adviser, to the extent permitted by
applicable law and regulations, may, but shall be under no obligation to,
aggregate the order for securities to be sold or purchased. In such event, the
Adviser will allocate securities or futures contracts so purchased or sold, as
well as the expenses incurred in the transaction, in the manner the Adviser
considers to be most equitable and consistent with its fiduciary obligations to
the Fund and to such other clients over time.
(d) AFFILIATED BROKERS. The Adviser or any of its affiliates may act
as broker in connection with the purchase or sale of securities or other
investments for the Fund, subject to: (a) the requirement that the Adviser seek
to obtain best execution and price within the policy guidelines determined by
the Board and set forth in the Registration Statement; (b) the provisions of
the 1940 Act; (c) the provisions of the Advisers Act; (d)
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the provisions of the 1934 Act; and (e) other provisions of applicable law.
These brokerage services are not within the scope of the duties of the Adviser
under this Agreement. Subject to the requirements of applicable law and any
procedures adopted by the Board, the Adviser or its affiliates may receive
brokerage commissions, fees or other remuneration from the Fund for these
services in addition to the Adviser's fees for services under this Agreement.
5. CUSTODY. Nothing in this Agreement shall permit the Adviser to
take or receive physical possession of cash, securities or other investments of
the Fund.
6. ALLOCATION OF CHARGES AND EXPENSES. The Adviser will bear its own
costs of providing services hereunder. Other than as herein specifically
indicated, the Adviser shall not be responsible for the Fund's expenses,
including brokerage and other expenses incurred in placing orders for the
purchase and sale of securities and other investment instruments.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) PROPERLY REGISTERED. The Adviser is registered as an investment
adviser under the Advisers Act, and will remain so registered for the duration
of this Agreement. The Adviser is not prohibited by the Advisers Act or the 1940
Act from performing the services contemplated by this Agreement, and to the best
knowledge of the Adviser, there is no proceeding or investigation that is
reasonably likely to result in the Adviser being prohibited from performing the
services contemplated by this Agreement. The Adviser agrees to promptly notify
the Trust of the occurrence of any event that would disqualify the Adviser from
serving as an investment adviser to an investment company. The Adviser is in
compliance in all material respects with all applicable federal and state law in
connection with its investment management operations.
(b) ADV DISCLOSURE. The Adviser has provided the Trust with a copy of
its Form ADV Part I as most recently filed with the SEC and, if applicable, its
current Part II and will, promptly after filing any amendment to its Form ADV
with the SEC updating its Part II, furnish a copy of such amendments or updates
to the Trust. The information contained in the Adviser's Form ADV does not
contain any untrue statement of any material fact and does not omit to state
any material fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
(c) FUND DISCLOSURE DOCUMENTS. The Adviser has reviewed, and will in
the future review, the Registration Statement and any amendment or supplements
thereto, the annual or semi-annual reports to shareholders, other reports filed
with the Commission and any marketing materials of the Fund (collectively the
"DISCLOSURE DOCUMENTS") and represents and warrants that, with respect to
disclosures about the Adviser, the manner in which the Adviser manages the Fund
or information relating directly or indirectly to the Adviser, such Disclosure
Documents contain or will contain, as at the date of the Adviser's review, no
untrue statement of any material fact and will not omit any statement of
material fact which was required to be stated therein or necessary to make the
statements contained therein, in the light of the circumstances under which
they were made, not misleading.
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(d) USE OF THE NAME "XXXXXX". Subject to the terms set forth in
Section 8 of this Agreement, the Trust shall have the right to use the name
"Xxxxxx" in connection with the management and operation of the Fund. The
Adviser is not aware of any threatened or existing actions, claims, litigation
or proceedings that would adversely affect or prejudice the rights of the
Adviser or the Trust to use the name "Xxxxxx."
(e) INSURANCE. The Adviser maintains an appropriate level of
professional indemnity insurance and shall provide prior written notice to the
Trust (i) of any material changes in its insurance policies or insurance
coverage; or (ii) if any material claims will be made on its insurance
policies. Furthermore, the Adviser shall, upon reasonable request, provide the
Trust with any information it may reasonably require concerning the amount of
or scope of such insurance.
(f) NO DETRIMENTAL AGREEMENT. The Adviser represents and warrants
that it has no arrangement or understanding with any party, other than the
Trust, that would adversely influence the decision of the Adviser with respect
to its selection of securities for the Fund, and that all selections shall be
done in accordance with what is in the best interest of the Fund.
(g) CONFLICTS. The Adviser shall act honestly, in good faith and in
the best interests of the Trust including requiring any of its personnel with
knowledge of Fund activities to place the interest of the Fund first, ahead of
their own interests, in all personal trading scenarios that may involve a
conflict of interest with the Fund, consistent with its fiduciary duties under
applicable law.
(h) REPRESENTATIONS. The representations and warranties in this
Section 7 shall be deemed to be made on the date this Agreement is executed and
at the time of delivery of the quarterly compliance report required by Section
3(a), whether or not specifically referenced in such report.
8. THE NAME "XXXXXX". The Adviser grants to the Trust a license to
use the name "Xxxxxx" (together with any derivative or logo relating thereto,
the "NAME") as part of the name of the Fund. The foregoing authorization by the
Adviser to the Trust to use the Name as part of the name of the Fund is not
exclusive of the right of the Adviser itself to use, or to authorize others to
use, the Name; the Trust acknowledges and agrees that, as between the Trust and
the Adviser, the Adviser has the right to use, or authorize others to use, the
Name. The Trust shall (1) only use the Name in a manner consistent with uses
approved by the Adviser; (2) use its best efforts to maintain the quality of
the services offered using the Name; (3) adhere to such other specific quality
control standards as the Adviser may from time to time promulgate. At the
request of the Adviser, the Trust will (a) submit to Adviser representative
samples of any promotional materials using the Name; and (b) change the name of
the Fund, and cease to use any derivative or logo relating thereto, following
the termination of this Agreement; provided, however, that the Trust may
continue to use beyond such date any supplies of prospectuses, marketing
materials and similar documents that the Trust had on the date of such name
change, in quantities not exceeding those historically produced and used in
connection with the Fund to the extent required to do so by applicable law.
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9. ADVISER'S COMPENSATION. The Fund shall pay to the Adviser, as
compensation for the Adviser's services hereunder, a fee, determined as
described in Schedule A that is attached hereto and made a part hereof. Such
fee shall be computed daily and paid not less than monthly in arrears by the
Fund.
The method for determining net assets of the Fund for purposes hereof
shall be the same as the method for determining net assets for purposes of
establishing the offering and redemption prices of Fund shares as described in
the Fund's prospectus. In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a pro
rata adjustment based on the number of days elapsed in the current month as a
percentage of the total number of days in such month.
10. INDEPENDENT CONTRACTOR. In the performance of its duties
hereunder, the Adviser is and shall be an independent contractor and, unless
otherwise expressly provided herein or otherwise authorized in writing, shall
have no authority to act for or represent the Trust or the Fund in any way or
otherwise be deemed to be an agent of the Trust or the Fund. If any occasion
should arise in which the Adviser gives any advice to its clients concerning
the shares of the Fund, the Adviser will act solely as investment counsel for
such clients and not in any way on behalf of the Fund.
11. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate, without the payment of any penalty, in the event of its assignment
(as defined in section 2(a)(4) of the 1940 Act); provided that such termination
shall not relieve any party of any liability incurred hereunder.
This Agreement may not be added to or changed orally and may not be
modified or rescinded except by way of an amendment in writing signed by the
parties hereto and in accordance with the 1940 Act, when applicable.
12. DURATION AND TERMINATION.
This Agreement shall become effective as of the date executed and
shall remain in full force and effect continually thereafter, subject to
renewal as provided in Section 12(c) and unless terminated automatically as set
forth in Section 11 hereof or until terminated as follows:
(a) The Trust may cause this Agreement to terminate either (i) by
vote of its Board or (ii) with respect to the Fund, upon the affirmative vote
of a majority of the outstanding voting securities of the Fund; or
(b) The Adviser may at any time terminate this Agreement by not more
than sixty (60) days' nor less than thirty (30) days' written notice delivered
or mailed by registered mail, postage prepaid, to the Trust; or
(c) This Agreement shall automatically terminate two years from the
date of its execution unless its renewal is specifically approved at least
annually thereafter by (i) a majority vote of the Trustees, including a
majority vote of such Trustees who are not
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interested persons of the Trust or the Adviser, at a meeting called for the
purpose of voting on such approval; or (ii) the vote of a majority of the
outstanding voting securities of the Fund; provided, however, that if the
continuance of this Agreement is submitted to the shareholders of the Fund for
their approval and such shareholders fail to approve such continuance of this
Agreement as provided herein, the Adviser may continue to serve hereunder as to
the Fund in a manner consistent with the 1940 Act and the rules and regulations
thereunder; and
(d) Termination of this Agreement pursuant to this Section shall be
without payment of any penalty.
In the event of termination of this Agreement for any reason, the
Adviser shall, immediately upon notice of termination or on such later date as
may be specified in such notice, cease all activity on behalf of the Fund and
with respect to any of its assets, except as otherwise required by any
fiduciary duties of the Adviser under applicable law. In addition, the Adviser
shall deliver the Fund Books and Records to the Trust by such means and in
accordance with such schedule as the Trust shall direct and shall otherwise
cooperate, as reasonably directed by the Trust, in the transition of portfolio
asset management to any successor of the Adviser.
13. CERTAIN DEFINITIONS. For the purposes of this Agreement:
(a) "Affirmative vote of a majority of the outstanding voting
securities of the Fund" shall have the meaning as set forth in the 1940 Act,
subject, however, to such exemptions as may be granted by the Commission under
the 1940 Act or any interpretations of the Commission staff.
(b) "Interested persons" and "Assignment" shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions as
may be granted by the Commission under the 1940 Act or any interpretations of
the Commission staff.
14. LIABILITY OF THE ADVISER.
(a) The Adviser shall have responsibility for any breach of the
representation and warranty in section 7(c) in respect of the Fund's Disclosure
Documents.
(b) The Adviser shall be liable to the Fund for any loss (including
reasonable transaction costs) incurred by the Fund attributable to the Adviser's
willful misfeasance, bad faith, gross negligence or its reckless disregard of
its obligations hereunder as a result of any investment made by the Adviser in
contravention of: (i) any investment policy, guideline or restriction set forth
in the Registration Statement or as approved by the Board from time to time and,
in each case, previously agreed with the Adviser via Adviser's consent to file
such Registration Statement; or (ii) applicable law, including but not limited
to the 1940 Act and the Code (including but not limited to the Fund's failure to
satisfy the diversification or source of income requirements of Subchapter M of
the Code), (the investments described in this section (b) defined collectively
as the "IMPROPER INVESTMENTS").
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(c) To the fullest extent permitted by applicable law, none of the
Adviser, any affiliated person of the Adviser within the meaning of Section
2(a)(3) of the 1940 Act, nor any person who controls the Adviser within the
meaning of Section 15 of the 1933 Act (each, an "ADVISER PARTY") shall be
liable to the Trust or the Fund for any losses, claims, damages, expenses or
liabilities arising from any act or omission performed or omitted by it in
connection with this Agreement or the Fund's business or affairs except for any
such losses, claims, damages, expenses or liabilities that result directly from
such Adviser Party's willful misfeasance, bad faith or gross negligence or
reckless disregard of the Adviser's obligations hereunder.
(d) The Adviser shall indemnify and hold harmless the Trust, each
affiliated person of the Trust within the meaning of Section 2(a)(3) of the
1940 Act, and each person who controls the Trust within the meaning of Section
15 of the 1933 Act (any such person, an "ADVISER INDEMNIFIED PARTY") against
any and all losses, claims, damages, expenses or liabilities (including the
reasonable cost of investigating and defending any alleged loss, claim, damage,
expense or liability and reasonable counsel fees incurred in connection
therewith) to which any such person may become subject under the 1933 Act, the
1934 Act, the 1940 Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any Improper Investment; or (ii) any breach by the Adviser of the
representation and warranty in section 7(c); provided, however, that the
Adviser Indemnified Parties shall not be indemnified for any liability or
expenses to the Trust to which such Indemnified Party would otherwise be
subject by reason of such Adviser Indemnified Party's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties hereunder.
15. CONFIDENTIALITY. Neither party will disclose or use any records
or information obtained pursuant to this Agreement in any manner whatsoever
except as expressly authorized in this Agreement or as reasonably required to
execute transactions on behalf of the Fund or as otherwise required by
applicable law or regulation, and each party will keep confidential any
non-public information obtained directly as a result of this relationship, and
such party shall disclose such non-public information only if the other party
authorized such disclosure by prior written consent, or if such information is
or hereafter otherwise is known by such party or has been disclosed, directly
or indirectly, by the other party to others, or becomes ascertainable from
public or published information or trade sources, or if such disclosure is
expressly required or requested by applicable regulatory authorities, or to the
extent such disclosure is reasonably required by auditors or attorneys of such
party in connection with the performance of their professional services or as
may otherwise be contemplated by this Agreement. Neither party shall disclose
information regarding the Fund's trading history, portfolio holdings,
performance information or any other related information to any third-party,
except in compliance with the Trust's policies on disclosure of portfolio
holdings or as required by applicable law or regulation.
16. NON-EXCLUSIVITY. The services furnished by the Adviser under this
Agreement are not to be deemed exclusive, and except as the Adviser may
otherwise agree in writing, the Adviser shall be free to furnish similar
services to others. Nothing in this Agreement shall limit or restrict the right
of any director, officer or employee of the Adviser to engage in any other
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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.
17. CHANGE IN THE ADVISER'S OWNERSHIP. The Adviser agrees that it
shall notify the Trust of any anticipated or otherwise reasonably foreseeable
change in the ownership of the Adviser within a reasonable time prior to such
change being effected.
18. ENFORCEABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
19. LIMITATION OF LIABILITY. The parties to this Agreement
acknowledge and agree that all litigation arising hereunder, whether direct or
indirect, and of any and every nature whatsoever shall be satisfied solely out
of the assets of the affected Fund and that no Trustee, officer or holder of
shares of beneficial interest of the Fund shall be personally liable for any of
the foregoing liabilities. The Trust's Certificate of Trust, as amended from
time to time, is on file in the Office of the Secretary of State of Delaware.
Such Certificate of Trust and the Trust's Agreement and Declaration of Trust
describe in detail the respective responsibilities and limitations on liability
of the Trustees, officers, and holders of shares of beneficial interest.
20. JURISDICTION. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York and the Adviser
consents to the jurisdiction of courts, both state or federal, in the State of
New York, with respect to any dispute under this Agreement.
21. PARAGRAPH HEADINGS. The headings of paragraphs contained in this
Agreement are provided for convenience only, form no part of this Agreement and
shall not affect its construction.
22. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Signatures on this
Agreement may be communicated by electronic transmission (which shall include
facsimile or email) and shall be binding upon the parties so transmitting their
signatures.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed on their behalf by their duly authorized officers as of the date
first above written.
11
XXXXXX SERIES TRUST, on behalf of the Fund(s) listed
on Schedule A
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: President
XXXXXX CAPITAL US LLC
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: Director, Xxxxxx Capital Group Limited,
Sole Member of Xxxxxx Capital US LLC
12
SCHEDULE A
TO THE
INVESTMENT ADVISORY AGREEMENT
DATED DECEMBER 19, 0000 XXXXXXX
XXXXXX SERIES TRUST
AND
XXXXXX CAPITAL US LLC
The Trust will pay to the Adviser as compensation for the Adviser's services
rendered, a fee, computed daily at an annual rate based on the average daily
net assets of the Fund in accordance the following fee schedule:
FUND RATE
Xxxxxx Global Equity Portfolio 0.40%
A-1
