EX-24(D)(b)(ii)
Form of Sub-Advisory Agreement with Fox Investment Management, Inc.
This Agreement is made and entered into as of the _____of ___________,
1999, by and between The Xxxxxxx Plan, a Delaware business trust (the "Trust"),
Xxxxxxx Partners, Ltd., a Florida Limited Partnership and Investment Adviser to
the Trust (the "Adviser"), and Fox Asset Management, Inc., a New Jersey
corporation (the "Investment Manager").
WHEREAS, the Trust is a diversified, open-end management investment
company, registered under the Investment Company Act of 1940, as amended (the
"Act"), and authorized to issue an indefinite number of series of shares
representing interests in separate investment portfolios (each referred to as a
"Series" and collectively, as the "Series"); and
WHEREAS, the Trust presently issues seven Series as follows:
The Xxxxxxx Plan Small-Cap Fund (formerly the Xxxxxxx Plan)
The Xxxxxxx Plan Mid-Cap Fund
The Xxxxxxx Plan Fixed-Income Fund
The Xxxxxxx Plan Money Market Fund
The Xxxxxxx Plan Small-Cap Variable Series
(formerly the Xxxxxxx Plan Variable Series)
The Xxxxxxx Plan Mid-Cap Variable Series
The Xxxxxxx Plan Fixed-Income Variable Series; and
WHEREAS, Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, and engages in the business of asset
management; and
WHEREAS, Investment Manager is registered as an investment adviser under
the Investment Advisers Act of 1940, and engages in the business of asset
management; and
WHEREAS, the Trust has engaged the Adviser to provide investment management
services to the Trust, and
WHEREAS, the Adviser desires to retain Investment Manager to render certain
investment management services to the Xxxxxxx Plan Mid-Cap Fund and the Xxxxxxx
Plan Mid-Cap Variable Series (the "Portfolios"), and Investment Manager is
willing to render such services; and
WHEREAS, the Trust consents to the engagement of Investment Manager by
Adviser.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. OBLIGATIONS OF INVESTMENT MANAGER
(B) SERVICES. Investment Manager agrees to perform the following services
(the "Services") for the Portfolios:
(1) manage the investment and reinvestment of each Portfolio's assets;
(2) continuously review, supervise, and administer the investment program
of each Portfolio;
(3) determine, in its discretion, the securities to be purchased, retained
or sold (and implement those decisions);
(4) provide the Trust and Adviser with records concerning Investment
Manager's activities which the Trust is required to maintain; and
(5) render regular reports to the Trust's and Adviser's officers and
directors concerning Investment Manager's discharge of the foregoing
responsibilities.
Investment Manager shall discharge the foregoing responsibilities subject
to the control of the officers, directors, and trustees of the Adviser and the
Trust and in compliance with such policies as the trustees may from time to time
establish, and in compliance with the objectives, policies, and limitations of
the Portfolios set forth in the Trust's prospectus and statement of additional
information, as amended from time to time, and with all applicable laws and
regulations. All Services to be furnished by Investment Manager under this
Agreement may be furnished through the medium of any directors, officers or
employees of Investment Manager or through such other parties as Investment
Manager may determine from time to time.
Investment Manager agrees, at its own expense or at the expense of one or
more of its affiliates, to render the Services and to provide the office space,
furnishings, equipment and personnel as may be reasonably required in the
judgment of the Board of Trustees of the Trust to perform the Services on the
terms and for the compensation provided herein. Investment Manager shall
authorize and permit any of its officers, directors and employees, who may be
elected as directors or officers of the Trust, to serve in the capacities in
which they are elected.
Except to the extent expressly assumed by Investment Manager herein and
except to the extent required by law to be paid by Investment Manager, the Trust
shall pay all costs and expenses in connection with its operation and
organization.
(B) BOOKS AND RECORDS. All books and records prepared and maintained by
Investment Manager for the Trust under this Agreement shall be the property of
the Trust and, upon request therefor, Investment Manager shall surrender to the
Trust such of the books and records so requested.
2. PORTFOLIO TRANSACTIONS. Investment Manager is authorized to select the
brokers or dealers that will execute the purchases and sales of portfolio
securities for the Portfolios and is directed to use its best efforts to obtain
the best net results as described in the Trust's prospectus from time to time.
Investment Manager may, in its discretion, purchase and sell portfolio
securities from and to brokers and dealers who provide a Portfolio with
research, analysis, advice and similar services, and Investment Manager may pay
to these brokers and dealers, in return for research and analysis, a higher
commission or spread than may be charged by other brokers and dealers, provided
that Investment Manager determines in good faith that such commission is
reasonable in terms either of that particular transaction or of the overall
responsibility of Investment Manager to the Trust and its other clients and that
the total commission paid by the Trust will be reasonable in relation to the
benefits to the Portfolio over the long-term. Investment Manager will promptly
communicate to the officers and the directors of the Adviser and Trust such
information relating to portfolio transactions as they may reasonably request.
3. COMPENSATION OF INVESTMENT MANAGER. For its services rendered to the
Xxxxxxx Plan Fixed-income Fund and the Xxxxxxx Plan Fixed-Income Variable
Series, the Adviser will pay to Investment Manager on the last day of each month
a fee at an annual rate equal to 0.20% of the daily average net asset value of
each Portfolio. For its services rendered to the Xxxxxxx Plan money Market Fund,
the Adviser will pay to Investment Manager on the last day of each month a fee
at an annual rate equal to 0.08% of the daily average net asset value of the
Portfolio. The fees described above shall be computed daily based upon the net
asset value of the Portfolios as determined by a valuation made in accordance
with the Trust's procedure for calculating Portfolio net asset value as
described in the Trust's Prospectus and/or Statement of Additional Information.
During any period when the determination of a Portfolio's net asset value is
suspended by the trustees of the Trust, the net asset value of a share of that
Portfolio as of the last business day prior to such suspension shall, for the
purpose of this Paragraph 3, be deemed to be net asset value at the close of
each succeeding business day until it is again determined.
4. STATUS OF INVESTMENT MANAGER. The services of Investment Manager to the
Trust are not to be deemed exclusive, and Investment Manager shall be free to
render similar services to others so long as it obtains the prior consent of the
Trust to render such services, which consent shall not be unreasonably withheld.
It shall be conclusively presumed that such consent shall be reasonably withheld
in the event the trustees find that the services of the investment Manager to
the Trust would be impaired by such additional services. Investment Manager
shall be deemed to be an independent contractor and shall, unless otherwise
expressly provided or authorized, have no authority to act for or represent the
Trust in any way or otherwise be deemed an agent of the Trust. Nothing in this
Agreement shall limit or restrict the right of any director, officer or employee
of Investment Manager, who may also be a director, officer, or employee of the
Trust, to engage in any other 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.
5. PERMISSIBLE INTERESTS. Trustees, agents, and stockholders of the Trust
are or may be interested in Investment Manager (or any successor thereof) as
directors, partners, officers, or stockholders, or otherwise, and directors,
partners, officers, agents, and stockholders of Investment Manager are or may be
interested in the Trust as trustees, stockholders or otherwise; and Adviser (or
any successor) is or may be interested in the Trust as a stockholder or
otherwise.
6. LIABILITY OF INVESTMENT MANAGER. Investment Manager assumes no
responsibility under this Agreement other than to render the services called for
hereunder in good faith. Investment Manager shall not be liable for any error of
judgment or for any loss suffered by the Trust in connection with the matters to
which this Agreement relates, except a loss resulting from a breach of fiduciary
duty with respect to 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 Investment Company Act of 1940 or a loss resulting from
willful misfeasance, bad faith or gross negligence on its part in the
performance of, or from reckless disregard by it of its obligations and duties
under, this Agreement.
7. TERM. This Agreement shall remain in effect until no later than
_________________, and from year to year thereafter provided such continuance is
approved at least annually by (1) the vote of a majority of the Board of
Trustees of the Trust or (2) a vote of a "majority" (as that term is defined in
the Investment Company Act of 1940) of the Trust's outstanding securities,
provided that in either event the continuance is also approved by the vote of a
majority of the trustees of the Trust who are not parties to this Agreement or
"interested persons" (as defined in the Act) of any such party, which vote must
be cast in person at meeting called for the purpose of voting on such approval;
provided, however, that;
(e) the Trust or Adviser may, at any time and without the payment of any
penalty, terminate this Agreement upon 60 days written notice to
Investment Manager;
(f) the Agreement shall immediately terminate in the event of its
assignment (within the meaning of the Act and the Rules thereunder);
and
(g) Investment Manager may terminate this Agreement without payment of
penalty on 60 days written notice to the Trust; and
(h) the terms of paragraph 6 of this Agreement shall survive the
termination of this Agreement.
8. NOTICES. Except as otherwise provided in this Agreement, any notice or
other communication required by or permitted to be given in connection with this
Agreement will be in writing and will be delivered in person or sent by first
class mail, postage prepaid or by prepaid overnight delivery service to the
respective parties as follows:
If to the Trust: If to the Adviser: If to the Investment Manager
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The Xxxxxxx Plan Xxxxxxx Partners, Ltd. Fox Asset Management, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxxxx, XX 00000
Xxxxxx X. Ally By: Covenant Funds, Inc. J. Xxxxx Xxxxxxxxxx
President Managing General Partner President
Xxxxxx X. Ally, President
9. AMENDMENTS. 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 amendment of this Agreement shall be effective
until approved by vote of the holders of a majority of the Fund's outstanding
voting securities.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and the year first written above.
The Xxxxxxx Plan Xxxxxxx Partners, Ltd. Fox Investment Management, Inc.
/s/ Xxxxxx X. Ally /s/ Xxxxxx X. Ally /s/ J. Xxxxx Xxxxxxxxxx
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XXXXXX X. ALLY COVENANT FUNDS, INC. J. XXXXX XXXXXXXXXX
PRESIDENT MANAGING GENERAL PRESIDENT
PARTNER, XXXXXX X.
ALLY, PRESIDENT
ATTEST: ATTEST: ATTEST:
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Secretary Secretary Secretary
[Corporate Seal] [Corporate Seal] [Corporate Seal]
