Exhibit (d)(1)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, made as of this ____ day of ________, 2006, by and between
Xxxxxxx Capital Mutual Funds, a Delaware statutory trust (the "Fund") and
Xxxxxxx Capital Advisors, LLC, a limited liability company (the "Adviser").
1. INVESTMENT ADVISORY SERVICES
The Fund hereby engages the Adviser, and the Adviser hereby agrees to act
as investment adviser for, and to manage the affairs, business and the
investment of the assets of the Fund.
The investment of the assets of the Fund shall at all times be subject to
the applicable provisions of the Articles of Incorporation, By-Laws,
Registration Statement on Form N-1A and any representations contained in the
Prospectus of the Fund and shall conform to the policies and purposes of the
Fund as set forth in such Registration Statement and Prospectus and (i) as
interpreted from time to time by the Board of Trustees of the Fund and (ii) as
may be amended from time to time by the Board of Trustees and/or the
shareholders of the Fund as permitted by the Investment Company Act of 1940, as
amended. Within the framework of the investment policies of the Fund, the
Adviser shall have the sole and exclusive responsibility for the management of
the Fund's assets and making and execution of all investment decisions for the
Fund. The Adviser shall report to the Board of Trustees of the Fund regularly at
such times and in such detail as the Board may from time to time determine to be
appropriate, in order to permit the Board to determine the adherence of the
Adviser to the investment policies of the Fund.
The Adviser shall, at its own expense, furnish the Fund with suitable
office space, and all necessary office facilities, equipment and personnel for
servicing the investments of the Fund. The Adviser shall arrange, if requested
by the Fund, for officers, employees or other Affiliated Persons (as defined in
Section 2(a)(3) of the Investment Company Act of 1940, as amended and the rules,
regulations and releases relating thereto) of the Adviser to serve without
compensation from the Fund as directors, officers, or employees of the Fund if
duly elected to such positions by the shareholders or directors of the Fund.
The Adviser hereby acknowledges that all records necessary in the operation
of the Fund, including records pertaining to its shareholders and investments,
are the property of the Fund, and in the event that a transfer of management or
investment advisory services to someone other than the Adviser should ever
occur, the Adviser will promptly, and at its own cost, take all steps necessary
to segregate such records and deliver them to the Fund.
2. COMPENSATION FOR SERVICES
In payment for all services, facilities, equipment and personnel, and for
other costs of the Adviser hereunder, the Fund shall pay to the Adviser a fee,
computed and paid monthly at the annual rate of .70% of the Fund's average daily
net asset value. Such average daily net asset
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value of each Fund shall be determined by taking an average of all of the
determinations of such net asset value during such month while this Contract is
in effect.
For purposes of the calculation of such fee, the Fund's net assets shall be
computed at the times and in the manner specified in the Fund's Registration
Statement on Form N-1A. Such fee shall be payable on the fifth day of each
calendar month for service performed hereunder during the preceding month.
3. ALLOCATION OF EXPENSES
(a) In addition to the fees described in Section 2 hereof, the Fund shall
pay all its expenses which are not assumed by the Adviser in its capacity as the
Fund's investment adviser. These Fund expenses include, by way of example, but
not by way of limitation, (a) brokerage and commission expenses; (b) interest
charges on borrowings; (c) fees and expenses of legal counsel and independent
auditors; (d) the Fund's organizational and offering expenses, whether or not
advanced by the Adviser; (e) Federal, state, local and foreign taxes, including
issue and transfer taxes incurred by or levied on the Fund; (f) cost of
certificates representing common shares of the Fund and any other expenses
(including clerical expenses) of issuance, sale or repurchase of the common
shares of the Fund; (g) association membership dues; (h) fees and expenses of
registering the Fund's shares under the appropriate Federal securities laws and
of qualifying the Fund's shares under applicable state securities laws; (i)
expenses of printing and distributing reports, notices and proxy materials to
shareholders; (j) costs of annual and special shareholders' meetings; (k)
expenses of filing reports and other documents with governmental agencies; (l)
charges and expenses of the Fund's Administrator, custodian and registrar,
transfer agent and dividend disbursing agent; (m) expenses of disbursing
dividends and distributions; (n) compensation of the Fund's officers, directors
and employees that are not Affiliated Persons or Interested Persons (as defined
in Section 2(a) of the Investment Company Act of 1940, as amended and the rules,
regulations and releases relating thereto) of the Adviser; (o) the cost of other
personnel providing services to the Fund; (p) travel expenses for attendance of
Board of Trustees meetings by all members of the Board of Trustees of the Fund;
(q) insurance expenses; (r) costs of stationery and supplies; and (s) any
extraordinary expenses of a nonrecurring nature.
(b) Notwithstanding the foregoing, if the aggregate expenses incurred by,
or allocated to, the Fund in any fiscal year shall exceed the expense
limitations applicable to the Fund imposed by state securities laws or
regulations thereunder, as such limitations may be raised or lowered from time
to time, the Adviser shall reimburse the Fund for such excess, provided that
Adviser's reimbursement obligation will be limited to the amount of fees it
receives from the Fund during the period in which such expense limitations were
exceeded, unless otherwise required by applicable laws or regulations. With
respect to portions of a fiscal year in which this contract shall be in effect,
the foregoing limitations shall be prorated according to the proportion which
that portion of the fiscal year bears to the full fiscal year. Any payments
required to be made by this Paragraph 3(b) shall be made once a year promptly
after the end of the Fund's fiscal year.
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4. FREEDOM TO DEAL WITH THIRD PARTIES
The Adviser shall be free to render services to others similar to those
rendered under this Agreement or of a different nature except as such services
may conflict with the services to be rendered or the duties to be assumed
hereunder.
5. EFFECTIVE DATE, DURATION AND TERMINATION OF AGREEMENT
This Agreement shall become effective upon conversion of the Fund to an
open-end management investment company (the "Effective Date"). Wherever referred
to in this Agreement, the vote or approval of the holders of a majority of the
outstanding shares of the Fund shall mean the vote of 67% or more of such shares
if the holders of more than 50% of such shares are present in person or by proxy
or the vote of more than 50% of such shares, whichever is less.
Unless sooner terminated as hereinafter provided, this Agreement shall
continue in effect through ___________, and thereafter shall continue in effect
for successive periods of 12 months thereafter, provided that each continuance
is specifically approved annually by (a) the vote of a majority of the Fund's
Board of Trustees who are not parties to the Agreement or interested persons (as
defined in the Investment Company Act of 1940, as amended and the rules,
regulations and releases relating thereto), cast in person at a meeting called
for the purpose of voting on approval and (b) either (i) the vote of a majority
of the outstanding voting securities of the Fund or (ii) the vote of a majority
of the Fund's Board of Trustees.
This Agreement may be terminated at any time without the payment of any
penalty by the vote of the Board of Trustees of the Fund or by the vote of the
holders of a majority of the outstanding shares of the Fund, upon sixty (60)
days written notice to the Adviser. The Adviser may terminate this Agreement
without penalty on ninety (90) days written notice to the Fund. This Agreement
shall automatically terminate in the event of its assignment as defined in the
Investment Company Act of 1940 and the rules thereunder. This Agreement shall
automatically terminate upon completion of the dissolution, liquidation and
winding up of the Fund.
6. LIMITATION OF LIABILITY
The Adviser will not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund or its shareholders in connection with the
performance of its duties under this Agreement, except a loss resulting from
willful misfeasance, bad faith or negligence on its part in the performance of
its duties or from reckless disregard by it of its duties under this Agreement.
Notwithstanding the above, the Adviser acknowledges that federal and state
securities laws impose liability under certain circumstances when a person acts
in good faith, and nothing herein shall be construed as a limitation or waiver
on any rights that the Fund may have under federal or state securities laws.
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7. AMENDMENTS TO AGREEMENT
No material amendment to this Agreement shall be effective until approved
by vote of the holders of a majority of the outstanding shares of the Fund.
8. NOTICES
Any notice under this Agreement shall be in writing, addressed, delivered
or mailed, postage prepaid, to the other party at such address as such other
party may designate in writing for receipt of such notice.
IN WITNESS WHEREOF, the Fund and the Adviser have caused this Agreement to
be executed by their duly authorized officers as of the day and year first above
written.
XXXXXXX CAPITAL MUTUAL FUNDS
By:
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Its:
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XXXXXXX CAPITAL ADVISORS, LLC
By:
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Its:
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fb.us.61175838.01
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