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Exhibit 99B(5)
INVESTMENT ADVISORY AGREEMENT
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This Agreement is made as of January 20, 1995, between The Xxxxxxxx
Family of Funds, an Ohio business trust (the "Trust"), and Xxxxxxxx & Company,
Inc., an Ohio corporation (the "Adviser").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Trust desires to retain the Adviser to furnish investment
advisory services to the newly created investment portfolios of the Trust and
may retain the Adviser to serve in such capacity to certain additional
investment portfolios of the Trust, all as now or hereafter may be identified in
Schedule A hereto (such initial investment portfolios and any such additional
investment portfolios together called the "Funds") and the Adviser represents
that it is willing and possesses legal authority to so furnish such services;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained in this Agreement, the parties hereto agree as follows:
Section i. APPOINTMENT. The Trust hereby
appoints the Adviser to act as
investment adviser to the Funds for the
period and on the terms and subject to
the conditions set forth in this
Agreement. The Adviser accepts such
appointment and agrees to furnish the
services herein set forth for the
compensation herein provided. Additional
investment portfolios may from time to
time be added to those covered by this
Agreement by the parties executing a new
Schedule A which shall become effective
upon its execution and shall supersede
any Schedule A having an earlier date.
Section ii. Investment Advisory Services.
Subject to the supervision of the
Trust's Board of Trustees, the Adviser
shall provide a continuous investment
program for the Funds, including
investment, research and management with
respect to all securities and
investments and cash equivalents in the
Funds. The Adviser shall determine from
time to time what securities and other
investments will be purchased, retained
or sold by the Trust with respect to the
Funds. The Adviser shall provide the
services under this Agreement in
accordance with each of the Fund's
investment objectives, policies, and
restrictions as stated in such Fund's
most current Prospectus and Statement of
Additional Information, as then in
effect, and all amendments or
supplements thereto, and resolutions of
the Trust's Board of Trustees as may be
adopted from time to time. The Adviser
further agrees that it:
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(i) will use the same skill and care in
providing such services as it uses in
providing services to any fiduciary
accounts for which it has investment
responsibilities;
(ii) will conform with all applicable
Rules and Regulations of the Securities
and Exchange Commission (the
"Commission") and, in addition, will
conduct its activities under this
Agreement in accordance with any
applicable regulations of any
governmental authority pertaining to the
investment advisory activities of the
Adviser;
(iii) will place orders pursuant to its
investment determinations for the Funds
either directly with the issuer or with
any broker or dealer. In placing orders
with brokers and dealers, the Adviser
will attempt to obtain and is hereby
directed to obtain prompt execution of
orders in an effective manner at the
most favorable price. Consistent with
this obligation, the Adviser may, in its
discretion, purchase and sell portfolio
securities to and from brokers and
dealers who provide the Adviser with
brokerage and research services (within
the meaning of Section 28(e) of the
Securities Exchange Act of 1934).
Subject to the review of the Trust's
Board of Trustees from time-to-time with
respect to the extent and continuation
of this policy, the Adviser is
authorized to pay a broker or dealer who
provides such brokerage and research
services a commission for effecting a
securities transaction for any of the
Funds which is in excess of the amount
of commission another broker or dealer
would have charged for effecting that
transaction if, but only if, the Adviser
determines in good faith that such
commission was reasonable in relation to
the value of the brokerage and research
services provided by such broker or
dealer, viewed in terms of either that
particular transaction or the overall
responsibilities of the Adviser with
respect to the accounts as to which it
exercises investment discretion. In no
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instance will portfolio securities be
purchased from or sold to Xxxxxxxx
Research Corp., the Adviser, or any
affiliated person of the Trust, Xxxxxxxx
Research Corp. or the Adviser unless
otherwise permitted by the 1940 Act, an
exemption therefrom, or an order
thereunder;
(iv) will maintain all books and records
with respect to the securities
transactions of the Funds and will
furnish the Trust's Board of Trustees
such periodic and special reports as the
Board may request; and
(v) will advise and assist the officers
of the Trust in taking such actions as
may be necessary or appropriate to carry
out the decisions of the Trust's Board
of Trustees and of the appropriate com-
mittees of such Board regarding the
conduct of the business of the Funds;
and
Section iii. EXPENSES. During the term of this Agreement,
the Adviser will pay all expenses incurred by it
in connection with its activities, duties and
obligations under this Agreement, other than the
costs of securities (including brokerage fees, if
any) purchased for the Funds.
Section iv. COMPENSATION. For the services provided and
the expenses assumed pursuant to this Agreement,
each of the Funds will pay the Adviser and the
Adviser will accept as full compensation therefor
a fee set forth on Schedule A hereto. The
obligations of the Funds to pay the
above-described fee to the Adviser will begin as
of the respective dates of the initial public sale
of shares in the Funds, including any shares sold
or exchanged in connection with a merger,
consolidation or reorganization involving one or
more of the Funds.
If in any fiscal year the aggregate expenses of any of the Funds (as
defined under the securities regulations of any state having jurisdiction over
the Trust) exceed the expense limitations of any such state, the Adviser will
reimburse such Fund for such excess expenses. The obligation of the Adviser to
reimburse the Funds hereunder is limited in any fiscal year to the amount of its
fee hereunder for such fiscal year; provided, however, that notwithstanding the
foregoing, the Adviser shall reimburse the Funds for such excess expenses
regardless of the
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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.
Section v. LIMITATION OF LIABILITY. The
Adviser shall not be liable for any error of
judgment or mistake of law or for any loss
suffered by the Funds 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 Adviser in the performance of its
duties or from reckless disregard by it of its
obligations and duties under this Agreement.
Section vi. DURATION AND TERMINATION. This Agreement will
become effective as of the date first written
above (or, if a particular Fund is not in
existence on that date, on the date a registration
statement relating to that Fund becomes effective
with the Commission), provided that it shall have
been approved by vote of a majority of the
outstanding voting securities of such Fund, in
accordance with the requirements, if any, under
the 1940 Act, and, unless sooner terminated as
provided herein, shall continue in effect until
January 20, 1997.
Thereafter, if not terminated, this Agreement shall continue in effect
as to a particular Fund for successive periods of twelve months each ending on
January 20th 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
any party to this Agreement, cast in person at a meeting called for the purpose
of voting on such approval, and (b) by the vote of a majority of the Trust's
Board of Trustees or by the vote of a majority of all votes attributable to the
outstanding shares of such Fund. Notwithstanding the foregoing, this Agreement
may be terminated as to a particular Fund 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 Fund) or by the 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 meanings as ascribed to such terms in the 1940 Act.)
Section vii. NAME. The Trust hereby acknowledges that the
name "Xxxxxxxx" is a property right of the Adviser.
The Adviser agrees that the Trust and the Funds
may, so long as this Agreement
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remains in effect, use "Xxxxxxxx" as part of its
name. The Adviser may permit other persons, firms
or corporations, including other investment
companies, to use such name and may, upon
termination of this Agreement, require the Trust
and the Funds to refrain from using the name
"Xxxxxxxx" in any form or combination in its name
or in its business or in the name of any of its
Funds, and the Trust shall, as soon as practicable
following its receipt of any such request from the
Adviser, so refrain from using such name.
Section viii. ADVISER'S REPRESENTATIONS. The Adviser
hereby represents and warrants that it is willing
and possesses all requisite legal authority to
provide the services contemplated by this
Agreement without violation of applicable laws and
regulations.
Section ix. 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.
Section x. 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 Ohio.
The Xxxxxxxx Family of Funds is a business trust organized under
Chapter 1746, Ohio Revised Code and under a Declaration of Trust, to which
reference is hereby made and a copy of which is on file at the office of the
Secretary of State of Ohio as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of "The Xxxxxxxx Family of
Funds" entered into in the name or on behalf thereof by any of the Trustees,
officers, employees or agents are made not individually, but in such capacities,
and are not binding upon any of the Trustees, officers, employees, agents or
shareholders of the Trust personally, but bind only the assets of the Trust, as
set forth in Section 1746.13(A), Ohio Revised Code, and all persons dealing with
any of the Funds of the Trust must look solely to the assets of the Trust
belonging to such Fund for the enforcement of any claims against the Trust.
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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 XXXXXXXX FAMILY OF FUNDS
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: President
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XXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title\: Sr. Exec. V.P.
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Dated as of: January 20, 1995
Amended as of: November 30, 1996
SCHEDULE "A"
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Investment Advisory Agreement
between
FAIRPORT FUNDS
and
XXXXXXXX & COMPANY, INC.
Name of Fund Compensation*
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FAIRPORT MIDWEST GROWTH FUND Annual rate of seventy-five one
hundredths of one percent (0.75%) of the
average daily net assets of such Fund up
to $100 Million and fifty one-hundredths
of one percent (0.50%) of the average
daily net assets of such Fund of $100
Million or more.
FAIRPORT GROWTH AND INCOME FUND Annual rate of seventy-five one
hundredths of one percent (0.75%) of the
average daily net assets of such Fund up
to $100 Million and fifty one-hundredths
of one percent (0.50%) of the average
daily net assets of such Fund of $100
Million or more.
FAIRPORT GOVERNMENT SECURITIES FUND Annual rate of twenty-five
one-hundredths of one percent (.25%) of
the average daily net assets of such
Fund up to $100 Million and one hundred
twenty-five one thousandths of one
percent (0.125%) of the average daily
net assets of such Fund of $100 Million
or more.
XXXXXXXX & COMPANY, INC. FAIRPORT FUNDS
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By: By:
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Name: Name: Xxxxx X. Xxxxxxxx
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Title: Title: President
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* All fees are computed and paid monthly.
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