MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT ("Agreement") is made this
1st day of December, 2005, by and between Xxxxx Xxxxxx
Institutional Cash Management Fund Inc., a Maryland
Corporation (the "Corporation") and Xxxxx Xxxxxx Fund
Management LLC, a Delaware limited liability company
(the "Manager").
WHEREAS, the Corporation is registered as a
management investment company under the Investment Company
Act of 1940, as amended (the "1940 Act");
WHEREAS, the Manager is engaged primarily in
rendering investment advisory, management and administrative
services and is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended;
WHEREAS, the Corporation wishes to retain the Manager
to provide investment advisory, management, and administrative
services to the Corporation with respect to the series of the
Corporation designated in Schedule A annexed hereto (the
"Fund"); and
WHEREAS, the Manager is willing to furnish such
services on the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and
mutual covenants herein contained, it is agreed as follows:
1. The Corporation hereby appoints the Manager to
act as investment adviser and administrator of the Fund for
the period and on the terms set forth in this Agreement.
The Manager accepts such appointment and agrees to render the
services herein set forth, for the compensation herein
provided.
2. The Fund shall at all times keep the Manager
fully informed with regard to the securities owned by it,
its funds available, or to become available, for investment,
and generally as to the condition of its affairs. It shall
furnish the Manager with such other documents and information
with regard to its affairs as the Manager may from time to
time reasonably request.
3. (a) Subject to the supervision of the
Corporation's Board of Directors (the "Board"), the Manager
shall regularly provide the Fund with investment research,
advice, management and supervision and shall furnish a
continuous investment program for the Fund's portfolio of
securities and other investments consistent with the Fund's
investment objectives, policies and restrictions, as stated
in the Fund's current Prospectus and Statement of Additional
Information. The Manager shall determine from time to time
what securities and other investments will be purchased,
retained, sold or exchanged by the Fund and what portion of
the assets of the Fund's portfolio will be held in the
various securities and other investments in which the Fund
invests, and shall implement those decisions, all subject to
the provisions of the Corporation's Articles of Incorporation
and By-Laws (collectively, the "Governing Documents"), the
1940 Act, and the applicable rules and regulations promulgated
thereunder by the Securities and Exchange Commission (the "SEC")
and interpretive guidance issued thereunder by the SEC staff
and any other applicable federal and state law, as well as
the investment objectives, policies and restrictions of the
Fund referred to above, and any other specific policies adopted
by the Board and disclosed to the Manager. The Manager is
authorized as the agent of the Corporation to give instructions
to the custodian of the Fund as to deliveries of securities and
other investments and payments of cash for the account of the Fund.
Subject to applicable provisions of the 1940 Act and direction
from the Board, the investment program to be provided hereunder
may entail the investment of all or substantially all of the assets
of a Fund in one or more investment companies. The Manager will
place orders pursuant to its investment determinations for the
Fund either directly with the issuer or with any broker or
dealer, foreign currency dealer, futures commission merchant
or others selected by it. In connection with the selection of
such brokers or dealers and the placing of such orders, subject
to applicable law, brokers or dealers may be selected who also
provide brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934)
to the Funds and/or the other accounts over which the Manager or
its affiliates exercise investment discretion. The Manager is
authorized to pay a broker or dealer who provides such brokerage
and research services a commission for executing a portfolio
transaction for a Fund which is in excess of the amount of
commission another broker or dealer would have charged for
effecting that transaction if the Manager determines in good
faith that such amount of commission is reasonable in relation
to the value of the brokerage and research services provided by
such broker or dealer. This determination may be viewed in terms
of either that particular transaction or the overall
responsibilities which the Manager and its affiliates have with
respect to accounts over which they exercise investment discretion.
The Board may adopt policies and procedures that modify and
restrict the Manager's authority regarding the execution of the
Fund's portfolio transactions provided herein. The Manager shall
also provide advice and recommendations with respect to other
aspects of the business and affairs of the Fund, shall exercise
voting rights, rights to consent to corporate action and any other
rights pertaining to a Fund's portfolio securities subject to
such direction as the Board may provide, and shall perform such
other functions of investment management and supervision as may
be directed by the Board.
(b) Subject to the direction and control of the Board,
the Manager shall perform such administrative and management
services as may from time to time be reasonably requested by the
Fund as necessary for the operation of the Fund, such as (i)
supervising the overall administration of the Fund, including
negotiation of contracts and fees with and the monitoring of
performance and xxxxxxxx of the Fund's transfer agent, shareholder
servicing agents, custodian and other independent contractors or
agents, (ii) providing certain compliance, fund accounting,
regulatory reporting, and tax reporting services, (iii) preparing
or participating in the preparation of Board materials,
registration statements, proxy statements and reports and other
communications to shareholders, (iv) maintaining the Fund's
existence, and (v) during such times as shares are publicly
offered, maintaining the registration and qualification of the
Fund's shares under federal and state laws. Notwithstanding the
foregoing, the Manager shall not be deemed to have assumed any
duties with respect to, and shall not be responsible for, the
distribution of the shares of any Fund, nor shall the Manager be
deemed to have assumed or have any responsibility with respect
to functions specifically assumed by any transfer agent, fund
accounting agent, custodian, shareholder servicing agent or other
agent, in each case employed by the Fund to perform such functions.
(c) The Fund hereby authorizes any entity or person
associated with the Manager which is a member of a national
securities exchange to effect any transaction on the exchange for
the account of the Fund which is permitted by Section 11(a) of the
Securities Exchange Act of 1934, as amended, and Rule 11a2-2(T)
thereunder, and the Fund hereby consents to the retention of
compensation for such transactions in accordance with Rule 11a2-2
(T)(a)(2)(iv). Notwithstanding the foregoing, the Manager agrees
that it will not deal with itself, or with members of the Board or
any principal underwriter of the Fund, as principals or agents in
making purchases or sales of securities or other property for the
account of the Fund, nor will it purchase any securities from an
underwriting or selling group in which the Manager or its affiliates
is participating, or arrange for purchases and sales of securities
between a Fund and another account advised by the Manager or its
affiliates, except in each case as permitted by the 1940 Act and in
accordance with such policies and procedures as may be adopted by a
Fund from time to time, and will comply with all other provisions of
the Governing Documents and the Fund's then-current Prospectus and
Statement of Additional Information relative to the Manager and its
directors and officers.
4. Subject to the Board's approval, the Manager or the
Fund may enter into contracts with one or more investment subadvisers
or subadministrators, including without limitation, affiliates of the
Manager, in which the Manager delegates to such investment subadvisers
or subadministrators any or all its duties specified hereunder, on
such terms as the Manager will determine to be necessary, desirable
or appropriate, provided that in each case the Manager shall
supervise the activities of each such subadviser or subadministrator
and further provided that such contracts impose on any investment
subadviser or subadministrator bound thereby all the conditions to
which the Manager is subject hereunder and that such contracts are
entered into in accordance with and meet all applicable requirements
of the 1940 Act.
5. (a) The Manager, at its expense, shall supply the Board and
officers of the Corporation with all information and reports reasonably
required by them and reasonably available to the Manager and shall
furnish the Fund with office facilities, including space, furniture
and equipment and all personnel reasonably necessary for the operation
of the Fund. The Manager shall oversee the maintenance of all books
and records with respect to the Fund's securities transactions and the
keeping of the Fund's books of account in accordance with all applicable
federal and state laws and regulations. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, the Manager hereby
agrees that any records that it maintains for the Fund are the property
of the Fund, and further agrees to surrender promptly to the Fund any of
such records upon the Fund's request. The Manager further agrees to
arrange for the preservation of the records required to be maintained by
Rule 31a-1 under the 1940 Act for the periods prescribed by Rule 31a-2
under the 1940 Act. The Manager shall authorize and permit any of its
directors, officers and employees, who may be elected as Board members
or officers of the Fund, to serve in the capacities in which they are
elected.
(b) The Manager shall bear all expenses, and shall furnish
all necessary services, facilities and personnel, in connection with
its responsibilities under this Agreement. Other than as herein
specifically indicated, the Manager shall not be responsible for the
Fund's expenses, including, without limitation, advisory fees;
distribution fees; interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection with membership
in investment company organizations; organization costs of the Fund;
the cost (including brokerage commissions, transaction fees or charges,
if any) in connection with the purchase or sale of the Fund's securities
and other investments and any losses in connection therewith; fees and
expenses of custodians, transfer agents, registrars, independent pricing
vendors or other agents; legal expenses; loan commitment fees; expenses
relating to share certificates; expenses relating to the issuing and
redemption or repurchase of the Fund's shares and servicing shareholder
accounts; expenses of registering and qualifying the Fund's shares for
sale under applicable federal and state law; expenses of preparing,
setting in print, printing and distributing prospectuses and statements
of additional information and any supplements thereto, reports, proxy
statements, notices and dividends to the Fund's shareholders; costs of
stationery; website costs; costs of meetings of the Board or any
committee thereof, meetings of shareholders and other meetings of the
Fund; Board fees; audit fees; travel expenses of officers, members of
the Board and employees of the Fund, if any; and the Fund's pro rata
portion of premiums on any fidelity bond and other insurance covering
the Fund and its officers, Board members and employees; litigation
expenses and any non-recurring or extraordinary expenses as may arise,
including, without limitation, those relating to actions, suits or
proceedings to which the Fund is a party and the legal obligation which
the Fund may have to indemnify the Fund's Board members and officers
with respect thereto.
6. No member of the Board, officer or employee of the
Corporation or Fund shall receive from the Corporation or Fund any
salary or other compensation as such member of the Board, officer or
employee while he is at the same time a director, officer, or employee
of the Manager or any affiliated company of the Manager, except as the
Board may decide. This paragraph shall not apply to Board members,
executive committee members, consultants and other persons who are not
regular members of the Manager's or any affiliated company's staff.
7. As compensation for the services performed and the facilities
furnished and expenses assumed by the Manager, including the services
of any consultants retained by the Manager, the Fund shall pay the
Manager, as promptly as possible after the last day of each month, a
fee, computed daily at an annual rate set forth opposite the Fund's
name on Schedule A annexed hereto, provided however, that if the Fund
invests all or substantially all of its assets in another registered
investment company for which the Manager or an affiliate of the Manager
serves as investment adviser or investment manager, the annual fee
computed as set forth on such Schedule A shall be reduced by the
aggregate management fees allocated to that Fund for the Fund's then-
current fiscal year from such other registered investment company.
The first payment of the fee shall be made as promptly as possible at
the end of the month succeeding the effective date of this Agreement,
and shall constitute a full payment of the fee due the Manager for all
services prior to that date. If this Agreement is terminated as of any
date not the last day of a month, such fee shall be paid as promptly as
possible after such date of termination, shall be based on the average
daily net assets of the Fund in that period from the beginning of such
month to such date of termination, and shall be that proportion of such
average daily net assets as the number of business days in such period
bears to the number of business days in such month. The average daily
net assets of the Fund shall in all cases be based only on business days
and be computed as of the time of the regular close of business of the
New York Stock Exchange, or such other time as may be determined by the
Board.
8. The Manager assumes no responsibility under this Agreement
other than to render the services called for hereunder, in good faith,
and shall not be liable for any error of judgment or mistake of law, or
for any loss arising out of any investment or for any act or omission
in the execution of securities transactions for a Fund, provided that
nothing in this Agreement shall protect the Manager against any liability
to the Fund to which the Manager would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations
and duties hereunder. As used in this Section 8, the term "Manager"
shall include any affiliates of the Manager performing services for the
Corporation or the Fund contemplated hereby and the partners,
shareholders, directors, officers and employees of the Manager and such
affiliates.
9. Nothing in this Agreement shall limit or restrict the right
of any director, officer, or employee of the Manager who may also be a
Board member, officer, or employee of the Corporation or the Fund, to
engage in any other business or to devote his time and attention in part
to the management or other aspects of any other business, whether of a
similar nature or a dissimilar nature, nor to limit or restrict the right
of the Manager to engage in any other business or to render services of
any kind, including investment advisory and management services, to any
other fund, firm, individual or association. If the purchase or sale of
securities consistent with the investment policies of a Fund or one or
more other accounts of the Manager is considered at or about the same
time, transactions in such securities will be allocated among the accounts
in a manner deemed equitable by the Manager. Such transactions may be
combined, in accordance with applicable laws and regulations, and
consistent with the Manager's policies and procedures as presented to
the Board from time to time.
10. For the purposes of this Agreement, the Fund's "net assets"
shall be determined as provided in the Fund's then-current Prospectus
and Statement of Additional Information and the terms "assignment,"
"interested person," and "majority of the outstanding voting securities"
shall have the meanings given to them by Section 2(a) of the 1940 Act,
subject to such exemptions as may be granted by the SEC by any rule,
regulation or order.
11. This Agreement will become effective with respect to the
Fund on the date set forth opposite the Fund's name on Schedule A
annexed hereto, provided that it shall have been approved by the
Corporation's Board and by the shareholders of the Fund in accordance
with the requirements of the 1940 Act and, unless sooner terminated
as provided herein, will continue in effect for two years from the
above written date. Thereafter, if not terminated, this Agreement
shall continue in effect with respect to the Fund, so long as such
continuance is specifically approved at least annually (i) by the
Board or (ii) by a vote of a majority of the outstanding voting
securities of the Fund, provided that in either event the continuance
is also approved by a majority of the Board members who are not
interested persons of any party to this Agreement, by vote cast in
person at a meeting called for the purpose of voting on such approval.
12. This Agreement is terminable with respect to the Fund
without penalty by the Board or by vote of a majority of the outstanding
voting securities of the Fund, in each case on not more than 60 days' nor
less than 30 days' written notice to the Manager, or by the Manager upon
not less than 90 days' written notice to the Fund, and will be terminated
upon the mutual written consent of the Manager and the Corporation. This
Agreement shall terminate automatically in the event of its assignment by
the Manager and shall not be assignable by the Corporation without the
consent of the Manager.
13. The Manager agrees that for services rendered to the Fund,
or for any claim by it in connection with services rendered to the Fund,
it shall look only to assets of the Fund for satisfaction and that it
shall have no claim against the assets of any other portfolios of the
Corporation.
14. No provision of this Agreement 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 material amendment of the
Agreement shall be effective until approved, if so required by the
1940 Act, by vote of the holders of a majority of the Fund's outstanding
voting securities.
15. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to the subject matter hereof.
Should any part of this Agreement be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding on and
shall inure to the benefit of the parties hereto and their respective
successors.
16. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized.
XXXXX XXXXXX INSTITUTIONAL CASH
MANAGEMENT FUND INC.
By:_______________________________
Name: R. Xxx Xxxxxx
Title: Chairman
XXXXX XXXXXX FUND MANAGEMENT LLC
By:_______________________________
Name: Xxxxxx Xxxxxxx
Title: Director
Schedule A
Government Portfolio
Fee:
The following percentage of the Fund's average daily net assets:
First $1 billion 0.25; Next $1 billion 0.225; Next $3 billion 0.20;
Next $5 billion 0.175; Over $10 billion 0.15
