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Exhibit 23(d)(2)
Form of Investment Advisory Agreement
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FORM OF INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made as of the ___
day of ________, 200_, by and between XXX XXXXXXX FUNDS, INC., a Maryland
corporation (the "Company"), on behalf of the Xxx Xxxxxxx Growth Opportunities
Fund (the "Fund") and XXX XXXXXXX CAPITAL MANAGEMENT, INC., a California
corporation (the "Adviser").
WITNESSETH:
WHEREAS, the Company is an open-end management investment company,
registered with the Securities and Exchange Commission as such under the
Investment Company Act of 1940, as amended (the "Investment Company Act"); and
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and is engaged
in the business of supplying investment advice, investment management and
administrative services; and
WHEREAS, the Company desires to retain the Adviser to render investment
advice and management services to the Fund pursuant to the terms and provisions
of this Agreement, and the Adviser is interested in furnishing said advice and
services;
NOW, THEREFORE, in consideration of the covenants and the mutual promises
hereinafter set forth, the parties hereto, intending to be legally bound hereby,
mutually agree as follows:
1. Appointment of Adviser. The Company hereby employs the Adviser and the
Adviser hereby accepts such employment, to render investment advice and
management services
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with respect to the assets of the Fund for the period and on the terms set forth
in this Agreement, subject to the supervision and direction of the Company's
Board of Directors.
2. Duties of Adviser.
(a) General Duties. The Adviser shall supervise and manage the
investment portfolio of the Fund, and, subject to such policies as the Board of
Directors of the Company may determine, direct the purchase and sale of
investment securities in the management of the Fund. Nothing herein contained
shall be deemed to require the Company to take any action contrary to its
Articles of Incorporation, as amended, restated or supplemented from time to
time, or any applicable statute or regulation, or to relieve or deprive the
board of directors of the Company of its responsibility for and control of the
affairs of the Fund.
(b) Brokerage. The Adviser, subject to the control and direction of the
Company's Board of Directors, shall have authority and discretion to select
brokers and dealers to execute portfolio transactions for the Fund and for the
selection of the markets on or in which the transactions will be executed. In
placing the Fund's securities trades, it is recognized that the Adviser will
give primary consideration to securing the most favorable price and efficient
execution, so that the Fund's total cost or proceeds in each transaction will be
the most favorable under all the circumstances. Within the framework of this
policy, the Adviser may consider the financial responsibility, research and
investment information, and other services provided by brokers or dealers who
may effect or be a party to any such transaction or other transactions to which
other clients of the Adviser may be a party.
It is also understood that it is desirable for the Fund that the Adviser
have access to investment and market research and securities and economic
analyses provided by brokers and others. It is also understood that brokers
providing such services may execute brokerage
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transactions at a higher cost to the Fund than might result from the allocation
of brokerage to other brokers on the basis of seeking the most favorable price
and efficient execution. Therefore, the purchase and sale of securities for the
Fund may be made with brokers who provide such research and analysis, subject to
review by the Company's Board of Directors from time to time with respect to the
extent and continuation of this practice to determine whether the Fund benefits,
directly or indirectly, from such practice. The Adviser shall provide such
reports as the Company's Board of Directors may reasonably request with respect
to the Fund's total brokerage and the manner in which that brokerage was
allocated. It is understood by both parties that the Adviser may select
broker-dealers for the execution of the Fund's portfolio transactions who
provide research and analysis as the Adviser may lawfully and appropriately use
in its investment management and advisory capacities, whether or not such
research and analysis may also be useful to the Adviser in connection with its
services to other clients.
Certain brokers and dealers may offer programs that effectively result in
a reduction of the Fund's operating expenses (as described in Section 7 hereof).
Provided that the Adviser reasonably believes such brokers or dealers offer best
execution (as discussed above in this Section 2), and subject to the Company's
Board of Directors' general supervision of brokerage directed for this purpose,
the Adviser may lawfully direct the Fund's brokerage for the purpose of reducing
Fund expenses.
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 of other clients, the Adviser, to
the extent permitted by applicable laws and regulations, may aggregate the
securities to be so purchased or sold in order to obtain the most favorable
price or lower brokerage commissions and the most efficient execution. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to such other clients.
3. Best Efforts and Judgment. The Adviser shall use its best judgment and
efforts in rendering the advice and services to the Fund as contemplated by this
Agreement.
4. Independent Contractor. The Adviser shall, for all purposes herein, be
deemed to be an independent contractor, and shall, unless otherwise expressly
provided and authorized to
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do so, have no authority to act for or represent the Company or the Fund in any
way, or in any way be deemed an agent for the Company or for the Fund. However,
one or more shareholders, officers, directors or employees of the Adviser may
serve as directors and/or officers of the Company, but without compensation or
reimbursement of expenses for such services from the Company.
5. Adviser's Personnel. The Adviser shall, at its own expense, maintain
such staff and employ or retain such personnel and consult with such other
persons as it shall from time to time determine to be necessary to the
performance of its obligations under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Adviser shall be
deemed to include persons employed or retained by the Adviser to furnish
statistical information, research, and other factual information, advice
regarding economic factors and trends, information with respect to technical and
scientific developments, and such other information, advice and assistance as
the Adviser or the Company's Board of Directors may desire and reasonably
request.
6. Reports by Fund to Adviser. The Fund will from time to time furnish to
the Adviser detailed statements of its investments and assets, and information
as to its investment objective and needs, and will make available to the Adviser
such financial reports, proxy statements, legal and other information relating
to the Fund's investments as may be in its possession or available to it,
together with such other information as the Adviser may reasonably request.
7. Expenses. The Adviser, at its own expense and without reimbursement
from the Company or the Fund, shall furnish office space, and all necessary
office facilities, equipment
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and executive personnel for managing the investments of the Fund. The Adviser
shall not be required to pay any expenses of the Fund except as provided herein.
The expenses of the Fund's operations borne by the Fund include by way of
illustration and not limitation, directors' fees paid to those directors who are
not officers of the Company, the costs of preparing and printing registration
statements required under the Securities Act of 1933 and the Investment Company
Act (and amendments thereto), the expense of registering its shares with the
Securities and Exchange Commission and in the various states, the printing and
distribution cost of prospectuses mailed to existing shareholders, the cost of
stock certificates (if any), director and officer liability insurance, reports
to shareholders, reports to government authorities and proxy statements,
interest charges, taxes, legal expenses, salaries of administrative and clerical
personnel, association membership dues, auditing and accounting services,
insurance premiums, brokerage and other expenses connected with the execution of
portfolio securities transactions, fees and expenses of the custodian of the
Fund's assets, expenses of calculating the net asset value and repurchasing and
redeeming shares, printing and mailing expenses, charges and expenses of
dividend disbursing agents, registrars and stock transfer agents and the cost of
keeping all necessary shareholder records and accounts.
8. Investment Advisory and Management Fee.
(a) The Fund shall pay to the Adviser, and the Adviser agrees to
accept, as full compensation for all administrative and investment management
and advisory services furnished or provided to the Fund pursuant to this
Agreement, a management fee as set forth in the Fee Schedule attached hereto as
Appendix A, as may be amended in writing from time to time by the Company and
the Adviser. The management fee shall be accrued daily by the Fund and paid to
the Adviser upon its request.
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The initial fee under this Agreement shall be payable on the first
business day of the first month following the effective date of this Agreement
and shall be prorated as set forth below. If this Agreement is terminated prior
to the end of any month, the fee to the Adviser shall be prorated for the
portion of any month in which this Agreement is in effect which is not a
complete month according to the proportion which the number of calendar days in
the month during which the Agreement is in effect bears to the number of
calendar days in the month, and shall be payable within ten (10) days after the
date of termination.
(b) Fee Reduction. The Adviser may, but is not required to, reduce all
or a portion of its fees and/or reimburse a Fund for other expenses in order to
decrease the operating expenses of a Fund. Any such reduction, reimbursement, or
payment (collectively "subsidies") shall be applicable only to such specific
subsidy and shall not constitute an agreement to continue such subsidy in the
future. Any such subsidy will be agreed to prior to accrual of the related
expense or fee and will be estimated daily and reconciled and paid on a monthly
basis. The Adviser may also agree contractually to limit a Fund's operating
expenses. To the extent such an expense limitation has been agreed to by the
Adviser and such limit has been disclosed to shareholders of a Fund in the
Prospectus, the Adviser may not change the limitation without first disclosing
the change in an updated Prospectus.
The Adviser may seek reimbursement of any subsidies made by the
Adviser either voluntarily or pursuant to contract. The reimbursement of any
subsidy must be approved by the Company's Board of Directors and must be sought
no later than the end of the third fiscal year following the year to which the
subsidy relates. The Adviser may not request or receive reimbursement for any
subsidies before payment of a Fund's operating expenses for the current
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year and cannot cause a Fund to exceed any more restrictive limitation to which
the Adviser has agreed in making such reimbursement.
(c) The Adviser may agree not to require payment of any portion of the
compensation or reimbursement of expenses otherwise due to it pursuant to this
Agreement prior to the time such compensation or reimbursement has accrued as a
liability of the Fund. Any such agreement shall be applicable only with respect
to the specific items covered thereby and shall not constitute an agreement not
to require payment of any future compensation or reimbursement due to the
Adviser hereunder.
9. Fund Share Activities of Adviser's Directors, Partners, Officers and
Employees. The Adviser agrees that neither it nor any of its directors,
partners, officers or employees shall take any short position in the shares of
the Fund. This prohibition shall not prevent the purchase of such shares by any
of the officers and partners or bona fide employees of the Adviser or any trust,
pension, profit-sharing or other benefit plan for such persons or affiliates
thereof, at a price not less than the net asset value thereof at the time of
purchase, as allowed pursuant to rules promulgated under the Investment Company
Act.
10. Conflicts with Company's Governing Documents and Applicable Laws.
Nothing herein contained shall be deemed to require the Company or the Fund to
take any action contrary to the Company's Articles of Incorporation, By-Laws, or
any applicable statute or regulation, or to relieve or deprive the Board of
Directors of the Company of its responsibility for and control of the conduct of
the affairs of the Company and Fund.
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11. Liability of the Adviser and the Fund.
(a) In the absence of willful misfeasance, bad faith, gross negligence,
or reckless disregard of the obligations or duties hereunder on the part of the
Adviser, the Adviser shall not be subject to liability to the Company or the
Fund or to any shareholder of the Fund for any act or omission in the course of,
or connected with, rendering services hereunder or for any losses that may be
sustained in the purchase, holding or sale of any security by the Fund;
provided, however, that this provision shall not be construed as a waiver or
limitation of any rights which the Company or the Fund may have under applicable
federal securities laws.
(b) The Fund shall indemnify and hold harmless the Adviser, its general
partner and the shareholders, directors, officers and employees of each of them
(any such person, an "Indemnified Party") against any loss, liability, claim,
damage or expense (including the reasonable cost of investigating and defending
any alleged loss, liability, claim, damage or expenses and reasonable counsel
fees incurred in connection therewith) arising out of the Indemnified Party's
performance or non-performance of any duties under this Agreement provided,
however, that nothing herein shall be deemed to protect any Indemnified Party
against any liability to which such Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith or negligence in the performance of
duties hereunder or by reason of reckless disregard of obligations and duties
under this Agreement.
(c) The Adviser agrees to defend, indemnify and hold harmless the
Company and the Fund, and the shareholders, directors, officers and employees of
each of them against any loss, liability, claim, damage or expense (including
without limitation the reasonable cost of investigating and defending any
alleged loss, liability, claim, damage or expenses and reasonable counsel fees
incurred in connection therewith) arising out of their performance or non-
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performance of any duties under, or the execution of, this Agreement; provided,
however, that nothing herein shall be deemed to protect any of them against any
liability to which they would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties under
this Agreement.
(d) No provision of this Agreement shall be construed to protect any
Director or officer of the Company, or partner or officer of the Adviser, from
liability in violation of Sections 17(h) and (i) of the Investment Company Act.
12. Exclusivity. The services of the Adviser to the Fund hereunder are not
to be deemed exclusive and the Adviser shall be free to furnish similar services
to others as long as the services hereunder are not impaired thereby. Although
the Adviser has agreed to permit the Fund and the Company to use the name "Xxx
Xxxxxxx", if they so desire, it is understood and agreed that the Adviser
reserves the right to use and to permit other persons, firms or corporations,
including investment companies, to use such name, and that the Fund and the
Company will not use such name if the Adviser ceases to be the Fund's sole
investment adviser. During the period that this Agreement is in effect, the
Adviser shall be the Fund's sole investment adviser.
13. Term. This Agreement shall become effective on the date that is the
latest of (1) the execution of this Agreement, (2) the approval of this
Agreement by the Board of Directors of the Company and (3) the requisite
approval of this Agreement by the shareholders of the Fund. This Agreement shall
remain in effect for a period of two (2) years, unless sooner terminated as
hereinafter provided. This Agreement shall continue in effect thereafter for
additional periods not exceeding one (l) year so long as such continuation is
approved for the Fund at least annually
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by (i) the Board of Directors of the Company or by the vote of a majority of the
outstanding voting securities of the Fund and (ii) the vote of a majority of the
Directors of the Company who are not parties to this Agreement nor interested
persons thereof, cast in person at a meeting called for the purpose of voting on
such approval.
14. Termination. This Agreement may be terminated by the Company on behalf
of any one or more of the Fund at any time without payment of any penalty, by
the Board of Directors of the Company or by vote of a majority of the
outstanding voting securities of a Fund, upon sixty (60) days' written notice to
the Adviser, and by the Adviser upon sixty (60) days' written notice to a Fund.
15. Termination by Assignment. This Agreement shall terminate
automatically in the event of any transfer or assignment thereof, as defined in
the Investment Company Act.
16. Transfer, Assignment. This Agreement may not be transferred, assigned,
sold or in any manner hypothecated or pledged without the affirmative vote or
written consent of the holders of a majority of the outstanding voting
securities of the Fund.
17. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute or rule, or shall be otherwise rendered
invalid, the remainder of this Agreement shall not be affected thereby.
18. Definitions. The terms "majority of the outstanding voting securities"
and "interested persons" shall have the meanings as set forth in the Investment
Company Act.
19. Notice of Limited Liability. The Adviser agrees that the Company's
obligations under this Agreement shall be limited to the Fund and to their
assets, and that the Adviser shall
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not seek satisfaction of any such obligation from the shareholders of the Fund
nor from any director, officer, employee or agent of the Company or the Fund.
20. Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
21. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to
the conflict of laws principles thereof; provided that nothing herein shall be
construed to preempt, or to be inconsistent with, any federal law, regulation or
rule, including the Investment Company Act and the Advisers Act and any rules
and regulations promulgated thereunder.
22. Nonpublic Personal Information. Notwithstanding any provision herein
to the contrary, the Adviser agrees on behalf of itself and its directors,
officers, and employees (1) to treat confidentially and as proprietary
information of the Company (a) all records and other information relative to the
series of the Company and their prior, present, or potential shareholders (and
clients of said shareholders) and (b) any Nonpublic Personal Information, as
defined under Section 248.3(t) of Regulation S-P ("Regulation S-P"), promulgated
under the Xxxxx-Xxxxx-Xxxxxx Act (the "G-L-B Act"), and (2) not to use such
records and information for any purpose other than the performance of its
responsibilities and duties hereunder, or as otherwise permitted by the privacy
policies adopted by the Company, the G-L-B Act or Regulation S-P, except after
prior notification to and approval in writing by the Company. Such written
approval shall not be unreasonably withheld by the Company and may not be
withheld where the Adviser may be exposed to civil or criminal contempt
proceedings for failure to
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comply after being requested to divulge such information by duly constituted
authorities, or when so requested by the Company.
23. Anti-Money Laundering Compliance. The Adviser acknowledges that, in
compliance with the Bank Secrecy Act, as amended, and implementing regulations
("BSA"), the Fund has adopted an Anti-Money Laundering Policy. The Adviser
agrees to comply with the Fund's Anti-Money Laundering Policy and the BSA, as
the same may apply to the Adviser, now and in the future. The Adviser further
agrees to provide to the Fund and/or the Company such reports, certifications
and contractual assurances as may be requested by the Fund or the Company. The
Company and the Fund may disclose information respecting the Adviser to
governmental and/or regulatory or self-regulatory authorities to the extent
required by applicable law or regulation and may file reports with such
authorities as may be required by applicable law or regulation.
24. Certifications; Disclosure Controls and Procedures. The Adviser
acknowledges that, in compliance with the Xxxxxxxx-Xxxxx Act of 2002, and the
implementing regulations promulgated thereunder, the Fund is required to make
certain certifications and has adopted disclosure controls and procedures. To
the extent reasonably requested by the Company or the Fund, the Adviser agrees
to use its best efforts to assist the Company and the Fund in complying with the
Xxxxxxxx-Xxxxx Act and implementing the Fund's disclosure controls and
procedures. The Adviser agrees to inform the Company and the Fund of any
material development related to the Company or the Fund that the Adviser
reasonably believes is relevant to the certification obligations of the Fund
under the Xxxxxxxx-Xxxxx Act.
25. Code of Ethics. The Adviser (i) has adopted a written code of ethics
pursuant to Rule 17j-1 under the Investment Company Act; (ii) has provided the
Fund with a copy of
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evidence of the adoption of the code of ethics by the Adviser; and (iii) will
make such reports to the Fund as are required by Rule 17j-1 under the Investment
Company Act. The Adviser agrees to provide the Fund with any information
required to satisfy the code of ethics reporting or disclosure requirements of
the Xxxxxxxx-Xxxxx Act and any rules or regulations promulgated by the SEC
thereunder. To the extent the Adviser adopts or has adopted a separate code of
ethics or amends or has amended its code of ethics to comply with such rules or
regulations, the Adviser shall provide the Fund with a copy of such code of
ethics and any amendments thereto.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested by their duly authorized officers, all on the day and
year first above written.
XXX XXXXXXX FUNDS, INC. XXX XXXXXXX CAPITAL MANAGEMENT, INC.
By: By:
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Name: Name:
Title: Title:
Date: ___________, 200_ Date: ___________, 200_
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Appendix A
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Fee Schedule - Xxx Xxxxxxx Funds, Inc.
Name of Fund Applicable Fee Effective Date
------------ -------------- --------------
Xxx Xxxxxxx Growth 1.25% of the Fund's average ____________, 2003
Opportunities Fund daily net assets (+/-) up to
0.25% (as detailed below)
of the Fund's
average daily net assets
The basic fee rate of 1.25% of the Fund's average daily net assets may be
adjusted upward or downward (by up to 0.25% of the Fund's average daily net
assets), depending on whether, and to what extent, the investment performance of
the Fund, for the relevant performance period, exceeds or is exceeded by, the
performance of the Lipper Mid-Cap Growth Funds Index over the same period. The
performance period consists of the prior 36 months and is also referred to as a
rolling 36-month period. Each 0.10% of difference of the Fund's performance
compared to the performance of the Lipper Mid-Cap Growth Funds Index is
multiplied by a performance adjustment of 0.025%, up to a maximum adjustment of
0.25% (as an annual rate). Thus, an annual excess performance difference of
2.50% or more between the Fund and the Lipper Mid-Cap Growth Funds Index would
result in an annual maximum performance adjustment of 0.25%.
The Fund's performance is calculated based on its net asset value per share
after all expenses. Similarly, the Lipper Mid-Cap Growth Funds Index is
calculated as an average of mutual funds and would reflect the performance of
those funds after fees and expenses. For purposes of calculating the performance
adjustment, any dividends or capital gains distributions paid by the Fund are
treated as if those distributions were reinvested in Fund shares at the net
asset value per share as of the record date for payment.
The basic fee and the performance adjustment are calculated once per month (but
accrued daily using the prior adjustment) and the entire advisory fee normally
is paid monthly.
Until the Fund has operated for 36 months, it will make performance adjustments
to the basic fee as follows. After the Fund has operated for 12 months, it will
use a rolling 12-month performance period. After the Fund has operated for 24
months, it will switch to a rolling 24-month performance period. After the Fund
has operated for 36 months, it will switch to a rolling 36-month performance
period. No performance adjustment will be made in the first year of the Fund's
operation. Therefore, during the first 12 months that the Adviser manages the
Fund's portfolio, the advisory fee rate will be the basic fee of 1.25%.
XXX XXXXXXX FUNDS, INC. XXX XXXXXXX CAPITAL MANAGEMENT, INC.
By: By:
---------------------- ----------------------------------
Name: Name:
Title: Title:
Date: ___________, 200_ Date: ___________, 200_
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