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Exhibit 5(d)
INVESTMENT ADVISORY AND ADMINISTRATION AGREEMENT
AGREEMENT made as of June 15, 1994 between THE XXXXXXX XXXXXX FAMILY OF
FUNDS, a Massachusetts business trust (herein called the "Trust"), and XXXXXXX
XXXXXX INVESTMENT MANAGEMENT, INC., a Delaware corporation (the "Investment
Adviser").
WHEREAS, the Trust is registered as an open-end diversified, management
investment company under the Investment Company Act of 1940, as amended ("1940
Act"); and
WHEREAS, the Trust desires to retain the Investment Adviser to furnish
investment advisory, administrative, and certain accounting and record-keeping
services to the investment portfolios of the Trust listed on Schedule A hereto
(each a "Schwab Fund" and collectively, the "Schwab Funds"),
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 the Investment Adviser to act
as investment adviser and administrator to the Schwab Funds for the period and
on the terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to furnish the services herein set forth for the
compensation herein provided.
2. Delivery of Documents. The Trust has furnished the Investment
Adviser with copies properly certified or authenticated of each of the
following:
(a) the Trust's Agreement and Declaration of Trust, as filed
with the Secretary of State of The Commonwealth of Massachusetts on
October 20, 1989, and all amendments thereto or restatements thereof
(such Agreement and Declaration, as presently in effect and as it shall
from time to time be amended or restated, is herein called the
"Declaration of Trust");
(b) the Trust's By-Laws and amendments thereto;
(c) resolutions of the Trust's Board of Trustees authorizing
the appointment of the Investment Adviser and approving this Agreement;
(d) the Trust's Notification of Registration on Form N-8A
under the 1940 Act, as
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filed with the Securities and Exchange Commission ("SEC") on November
1, 1989 and all amendments thereto;
(e) the Trust's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended ("1933 Act"), (File No. 33-31894)
and under the 1940 Act as filed with the SEC and all amendments
thereto; and
(f) the Trust's most recent prospectus and Statement of
Additional Information for the Schwab Funds (such prospectuses and
Statement of Additional Information, as presently in effect, and all
amendments and supplements thereto are herein collectively called the
"Prospectus").
The Trust will furnish the Investment Adviser from time to time with copies of
all amendments of or supplements to the foregoing.
3. Management. Subject to the direction and control of the Board of
Trustees of the Trust, the Investment Adviser will supervise or perform for the
Schwab Funds all aspects of the operations of the Schwab Funds except for those
performed by the custodian for the Schwab Funds under the Custody Agreement,
provide general economic and financial analysis and advice to the Schwab Funds,
and provide a continuous investment program for the Schwab Funds, including
investment research and management as to all securities and investments and cash
equivalents in the Schwab Funds. More particularly, the Investment Adviser will:
determine from time to time what securities and other investments will be
purchased, retained, or sold by the Schwab Funds; maintain office facilities
(which may be in the offices of the Investment Adviser or a corporate affiliate
but shall be in such location as the Trust reasonably determines); furnish
statistical and research data, clerical services and stationery and office
supplies; compile data for, prepare for execution by the Schwab Funds and file
all the Schwab Funds' federal and state tax returns and required tax filings
other than those required to be made by the Schwab Funds' custodian and transfer
agent; prepare compliance filings pursuant to state securities laws with the
advice of the Trust's counsel; prepare the Trust's Annual and Semi-Annual
Reports to Shareholders and amendments to its Registration Statements (on Form
N-1A or any replacement therefor); compile data for, prepare and file timely
Notices to the SEC required pursuant to Rule 24f-2 under the 1940 Act; perform
at the expense of the Schwab Funds the daily pricing of portfolio securities and
computation of the net asset value and the net income of each Schwab Fund in
accordance with the Prospectus and resolutions of the Trust's Board of
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Trustees; keep and maintain the financial accounts and records of the Schwab
Funds and provide the Trust with certain reports, all as more specifically set
forth on Schedule B hereto; and generally assist in all aspects of the
operations of the Schwab Funds.
Subject to the provisions of the Agreement and Declaration of
Trust and the 1940 Act, the Investment Adviser, at its expense, may select and
contract with investment advisers (the "Sub-Advisers") for one or more of the
Schwab Funds. So long as any Sub-Adviser serves as Sub-Adviser to a Schwab Fund,
it must be a party to a Sub-Investment Advisory Agreement in substantially the
form attached hereto as Schedule C (the "Sub-Adviser Agreement") and will be
obligated to (i) furnish continuously an investment program as to those assets
of the Trust and the Schwab Funds involved allocated by the Investment Adviser,
(ii) in connection therewith, adhere to such guidelines as may be established by
the Investment Adviser from time to time to insure compliance with applicable
investment objectives, policies and restrictions of the Trust and the Schwab
Funds and (iii) place all orders for the purchase and sale of Investments. The
Investment Adviser may also delegate or subcontract some or all of the
Investment Adviser's other duties enumerated in this Agreement. The Investment
Adviser will be responsible for payment of all compensation to all Sub-Advisers
and other persons and entities to which Investment Adviser delegates any duties
hereunder.
The Investment Adviser further agrees that it:
(a) will use the same skill and care in providing such
services as it would use in providing services to fiduciary accounts if
it had investment responsibilities for such accounts;
(b) will conform with all applicable Rules and Regulations of
the SEC and will in addition conduct its activities under this
Agreement in accordance with any applicable regulations of any
governmental authority pertaining to the investment advisory activities
of the Investment Adviser;
(c) will not make loans to any person to purchase or carry
units of beneficial interest in the Trust or make loans to the Trust;
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(d) will place orders pursuant to its investment
determinations for the Schwab Funds either directly with the issuer or
with an underwriter, market maker, or broker or dealer. In placing
orders with brokers and dealers the Investment Adviser will attempt to
obtain prompt execution of orders in an effective manner at the most
favorable price. Consistent with this obligation, when the execution
and price offered by two or more brokers or dealers are comparable, the
Investment Adviser may, in its discretion, purchase or sell portfolio
securities to and from brokers and dealers who provide the Investment
Adviser or any Sub-Adviser with research advice and other services. In
no instance will portfolio securities be purchased from or sold to the
Investment Adviser or any Sub-Adviser, or any affiliated person of
either the Trust, the Investment Adviser, or any Sub-Adviser, except as
may be permitted under the 1940 Act;
(e) will treat confidentially and as proprietary information
of the Trust all records and other information relative to the Trust,
and will not use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld
where the Investment Adviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, or when so requested
by the Trust; and
(f) will direct its personnel when making investment
recommendations for the Trust, not to inquire or take into
consideration whether the issuers of securities proposed for purchase
or sale for the Trust's accounts are customers of the Investment
Adviser or of its parent or its subsidiaries or affiliates. In dealing
with such customers, the Investment Adviser and its parent,
subsidiaries, and affiliates will not inquire or take into
consideration whether securities of those customers are held by the
Trust.
4. Services to Others. The Trust understands that the Investment
Adviser may in the future act as an investment adviser to fiduciary and other
managed accounts, and as investment adviser, sub-investment adviser, and/or
administrator to other investment companies. The Trust has no objection to the
Investment Adviser's acts in such
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capacities, provided that whenever one of the Schwab Funds and one or more other
investment companies advised by the Investment Adviser have available funds for
investment, investments suitable and appropriate for each will be allocated in
accordance with a formula believed by the Investment Adviser to be equitable to
each company. The Trust recognizes that in some cases this procedure may
adversely affect the size of the position that a Schwab Fund may obtain in a
particular security. In addition, the Trust understands that the persons
employed by the Investment Adviser to assist in the Investment Adviser's duties
under this Agreement will not devote their full time to such service and nothing
contained in this Agreement will be deemed to limit or restrict the right of the
Investment Adviser or any of its affiliates to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature.
5. Books and Records. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Investment Adviser hereby agrees that all records it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request and
will require the same type of agreement from each Sub-Adviser. The Investment
Adviser further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act.
6. Expenses. During the term of this Agreement, the Investment Adviser
will pay all expenses incurred by it in providing general economic and financial
analysis and advice to the Schwab Funds and providing a continuous investment
program for the Schwab Funds pursuant to Section 3 above and in providing its
activities under this Agreement other than the cost of securities (including
brokerage commissions, if any) purchased for the Trust. The Investment Adviser
will also pay all compensation of any person or person employed by or associated
with the Investment Adviser to assist in the performance of the Investment
Adviser's obligations under this Agreement, whether or not such person is also a
officer or employee of the Trust, and the Investment Adviser will not cause any
obligation to be incurred on behalf of the Trust in respect of any such
compensation. Other expenses to be incurred in the operation of the Schwab Funds
-- including without limitation taxes, interest, brokerage fees and commissions,
if any, fees of Trustees who are not officers, directors, shareholders, or
employees of the Investment Adviser or any Sub-Adviser, SEC fees and state "blue
sky" qualification fees, advisory and administration fees, costs of performing
the pricing of portfolio securities, transfer and dividend disbursing agents'
fees, certain insurance premiums,
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outside auditing and legal expenses, costs of maintaining the Trust's existence
as a Massachusetts business trust, typesetting and printing prospectuses for
regulatory purposes and for distribution to current shareholders of the Schwab
Funds, costs of shareholders' and Trustees' reports and meetings and any
extraordinary expenses -- will be borne by the Schwab Funds; provided however,
that the Schwab Funds will not bear, directly or indirectly, the cost of any
activity that is primarily intended to result in the distribution of shares of
the Schwab Funds.
7. Compensation. For the services provided and the expenses assumed
pursuant to this Agreement, the Trust will pay the Investment Adviser and the
Investment Adviser will accept as full compensation therefor, an advisory fee,
accrued daily and payable monthly, in accordance with Schedule D hereto.
If in any fiscal year the aggregate expenses (as defined under
the securities regulations of any state having jurisdiction over the Trust) of a
Schwab Fund exceed the expense limitations of any such state, the Investment
Adviser will reimburse such Schwab Fund for a portion of such excess expenses
equal to such excess times the ratio of the fees otherwise payable by such
Schwab Fund to the Investment Adviser hereunder to the aggregate fees otherwise
payable by such Schwab Fund to the Investment Adviser hereunder, and to Xxxxxxx
Xxxxxx & Co., Inc. under the Transfer Agency and Shareholder Servicing Agreement
between it and the Trust. The obligation of the Investment Adviser to reimburse
a Schwab Fund hereunder is limited in any fiscal year to the amount of its fee
hereunder from such Schwab Fund for such fiscal year, provided, however, that
notwithstanding the foregoing, the Investment Adviser will reimburse each Schwab
Fund for such proportion of such excess expenses regardless of the amount of
fees paid to it during such fiscal year to the extent that the securities
regulations of any state having jurisdiction over the Trust so require. Such
expense reimbursement, if any, will be estimated daily and reconciled and paid
on a monthly basis.
8. Limitation of Liability. The Investment Adviser will not be liable
for any error of judgment or mistake of law or for any loss suffered by the Fund
in connection with the performance of this Agreement, except a loss resulting
from a breach of fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Investment Adviser in the performance of its
duties or from reckless disregard by it of its obligations and duties under this
Agreement.
9. Duration and Termination. This Agreement will become effective as to
each Schwab Fund as of the date set
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forth opposite each Fund's name on Schedule A, provided that it has been
approved by a vote of a majority of the outstanding voting securities of such
Schwab Fund, in accordance with the requirements under the 1940 Act.
Thereafter, if not terminated as to a Schwab Fund, this
Agreement will continue in effect as to such Schwab Fund for successive periods
each ending on May 30 of each year, provided such continuance is specifically
approved at least annually (a) by the vote of a majority of those members of the
Trust's Board of Trustees who are not parties to this Agreement or interested
persons of the Trust, the Investment Adviser, or any Sub-Adviser, cast in person
at a meeting called for the purpose of voting on such approval, and (b) by the
Trust's Board of Trustees or by vote of a majority of the outstanding voting
securities of such Schwab Fund. Notwithstanding the foregoing, this Agreement
may be terminated at any time on sixty days' written notice, without the payment
of any penalty, by the Trust (by vote of the Trust's Board of Trustees or by
vote of a majority of the outstanding voting securities of such Schwab Fund) or
by the Investment Adviser. This Agreement will immediately terminate in the
event of its assignment. (As used in this Agreement, the terms "majority of the
outstanding voting securities," "interested persons" and "assignment" shall have
the same meaning of such terms in the 1940 Act.)
10. Amendment of this Agreement. 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.
11. Miscellaneous. The captions in this Agreement 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 Agreement shall 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 upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by the laws of the State of California.
The names "The Xxxxxxx Xxxxxx Family of Funds" and "Trustees
of The Xxxxxxx Xxxxxx Family of Funds" refer respectively to the Trust created
and the Trustees, as trustees but not individually or personally, acting from
time to time under the Declaration of Trust, to which reference is hereby made
and a copy of which is on file at the office of the Secretary of The
Commonwealth of Massachusetts and elsewhere as required by law, and to any
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and all amendments thereto so filed or hereafter filed. The obligations of "The
Xxxxxxx Xxxxxx Family of Funds" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, interest holders
or representatives of the Trust personally, but bind only the assets of the
Trust, and all persons dealing with any series of units of interest of the Trust
must look solely to the assets of the Trust belonging to such series for the
enforcement of any claims against the Trust.
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.
THE XXXXXXX XXXXXX FAMILY OF FUNDS
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: President
XXXXXXX XXXXXX INVESTMENT
MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Operating Officer
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