XXXXXX NEW OPPORTUNITIES FUND
MANAGEMENT CONTRACT
Management Contract dated as of July 1, 2000 between XXXXXX NEW
OPPORTUNITIES FUND, a Massachusetts business trust (the "Fund"), and
XXXXXX INVESTMENT MANAGEMENT, INC., a Massachusetts corporation
(the "Manager").
WITNESSETH:
That in consideration of the mutual covenants herein contained, it is
agreed as follows:
1. SERVICES TO BE RENDERED BY MANAGER TO FUND.
(a) The Manager, at its expense, will furnish continuously an investment
program for the Fund, will determine what investments shall be purchased,
held, sold or exchanged by the Fund and what portion, if any, of the assets of
the Fund shall be held uninvested and shall, on behalf of the Fund, make
changes in the Fund's investments. Subject always to the control of the
Trustees of the Fund and except for the functions carried out by the officers
and personnel referred to in Section 1(d), the Manager will also manage,
supervise and conduct the other affairs and business of the Fund and matters
incidental thereto. In the performance of its duties, the Manager will comply
with the provisions of the Agreement and Declaration of Trust and By-Laws of
the Fund and its stated investment objectives, policies and restrictions, and
will use its best efforts to safeguard and promote the welfare of the Fund and
to comply with other policies which the Trustees may from time to time
determine and shall exercise the same care and diligence expected of the
Trustees.
(b) The Manager, at its expense, except as such expense is paid by the Fund
as provided in Section 1(d), will furnish (1) all necessary investment and
management facilities, including salaries of personnel, required for it to
execute its duties faithfully; (2) suitable office space for the Fund; and
(3) administrative facilities, including bookkeeping, clerical personnel and
equipment necessary for the efficient conduct of the affairs of the Fund,
including determination of the Fund's net asset value, but excluding
shareholder accounting services. Except as otherwise provided in Section
1(d), the Manager will pay the compensation, if any, of the officers of the
Fund.
(c) The Manager, at its expense, shall place all orders for the purchase
and sale of portfolio investments for the Fund's account with brokers or
dealers selected by the Manager. In the selection of such brokers or dealers
and the placing of such orders, the Manager shall use its best efforts to
obtain for the Fund the most favorable price and execution available, except
to the extent it may be permitted to pay higher brokerage commissions for
brokerage and research services as described below. In using its best
efforts to obtain for the Fund the most favorable price and execution
available, the Manager, bearing in mind the Fund's best interests at all
times, shall consider all factors it deems relevant, including by way of
illustration, price, the size of the transaction, the nature of the market
for the security, the amount of the commission, the timing of the transaction
taking into account market prices and trends, the reputation, experience and
financial stability of the broker or dealer involved and the quality of
service rendered by the broker or dealer in other transactions. Subject to
such policies as the Trustees of the Fund may determine, the Manager shall
not be deemed to have acted unlawfully or to have breached any duty created
by this Contract or otherwise solely by reason of its having caused the Fund
to pay a broker or dealer that provides brokerage and research services to
the Manager an amount of commission for effecting a portfolio investment
transaction in excess of the amount of commission another broker or dealer
would have charged for effecting that transaction, if the Manager determines
in good faith that such amount of 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 Manager's
overall responsibilities with respect to the Fund and to other clients of the
Manager as to which the Manager exercises investment discretion. The Manager
agrees that in connection with purchases or sales of portfolio investments
for the Fund's account, neither the Manager nor any officer, director,
employee or agent of the Manager shall act as a principal or receive any
commission other than as provided in Section 3.
(d) The Fund will pay or reimburse the Manager for (i) the compensation of
the Vice Chairman of the Fund and of persons assisting him in this office,
as determined from time to time by the Trustees of the Fund, (ii) the
compensation in whole or in part of such other officers of the Fund and
persons assisting them as may be determined from time to time by the Trustees
of the Fund, and (iii) the cost of suitable office space, utilities, support
services and equipment of the Vice Chairman and persons assisting him and, as
determined from time to time by the Trustees of the Fund, all or a part of
such cost attributable to the other officers and persons assisting them whose
compensation is paid in whole or in part by the Fund. The Fund will pay
the fees, if any, of the Trustees of the Fund.
(e) The Manager shall pay all expenses incurred in connection with the
organization of the Fund and the initial public offering and sale of its
shares of beneficial interest, provided that upon the issuance and sale of
such shares to the public pursuant to the offering, and only in such event,
the Fund shall become liable for, and to the extent requested reimburse the
Manager for, registration fees payable to the Securities and Exchange
Commission and for an additional amount not exceeding $125,000 as its agreed
share of such
expenses.
(f) The Manager shall not be obligated to pay any expenses of or for the
Fund not expressly assumed by the Manager pursuant to this Section 1 other than
as provided in Section 3.
2. OTHER AGREEMENTS, ETC.
It is understood that any of the shareholders, Trustees, officers and
employees of the Fund may be a shareholder, director, officer or employee of,
or be otherwise interested in, the Manager, and in any person controlled by
or under common control with the Manager, and that the Manager and any person
controlled by or under common control with the Manager may have an interest in
the Fund. It is also understood that the Manager and any person controlled by
or under common control with the Manager have and may have advisory,
management, service or other contracts with other organizations and persons,
and may have other interests and business.
3. COMPENSATION TO BE PAID BY THE FUND TO THE MANAGER.
The Fund will pay to the Manager as compensation for the Manager's services
rendered, for the facilities furnished and for the expenses borne by the
Manager pursuant to paragraphs (a), (b), (c) and (e) of Section 1, a fee,
computed and paid quarterly at the following annual rates:
(a) 0.70% of the first $500 million of the average net asset value of the
Fund;
(b) 0.60% of the next $500 million of such average net asset value;
(c) 0.55% of the next $500 million of such average net asset value;
(d) 0.50% of the next $5 billion of such average net asset value;
(e) 0.475% of the next $5 billion of such average net asset value;
(f) 0.455% of the next $5 billion of such average net asset value;
(g) 0.44% of the next $5 billion of such average net asset value;
(h) 0.43% of the next $5 billion of such average net asset value;
(i) 0.42% of the next $5 billion of such average net asset value;
(j) 0.41% of the next $5 billion of such average net asset value;
(k) 0.40% of the next $5 billion of such average net asset value;
(l) 0.39% of the next $5 billion of such average net asset value;
(m) 0.38% of the next $8.5 billion of such average net asset value;
(n) 0.37% above $55.0 billion of such average net asset value.
Such average net asset value shall be determined by taking an average of
all of the determinations of such net asset value during such quarter at the
close of business on each business day during such quarter while this Contract
is in effect. Such fee shall be payable for each fiscal quarter within 30
days after the close of such quarter and shall commence accruing as of the
date of the initial issuance of shares of the Fund to the public.
The fees payable by the Fund to the Manager pursuant to this Section 3 shall
be reduced by any commissions, fees, brokerage or similar payments received by
the Manager or any affiliated person of the Manager in connection with the
purchase and sale of portfolio investments of the Fund, less any direct
expenses approved by the Trustees incurred by the Manager or any affiliated
person of the Manager in connection with obtaining such payments.
In the event that expenses of the Fund for any fiscal year should exceed
the expense limitation on investment company expenses imposed by any statute
or regulatory authority of any jurisdiction in which shares of the Fund are
qualified for offer or sale, the compensation due the Manager for such
fiscal year shall be reduced by the amount of excess by a reduction or
refund thereof. In the event that the expenses of the Fund exceed any
expense limitation which the Manager may, by written notice to the Fund,
voluntarily declare to be effective subject to such terms and conditions as
the Manager may prescribe in such notice, the compensation due the Manager
shall be reduced, and, if necessary, the Manager shall assume expenses of
the Fund to the extent required by the terms and conditions of such expense
limitation.
If the Manager shall serve for less than the whole of a quarter, the
foregoing compensation shall be prorated.
4. ASSIGNMENT TERMINATES THIS CONTRACT; AMENDMENTS OF THIS CONTRACT.
This Contract shall automatically terminate, without the payment of any
penalty, in the event of its assignment; and this Contract shall not be
amended unless such amendment be approved at a meeting by the affirmative
vote of a majority of the outstanding shares of the Fund, and by the vote,
cast in person at a meeting called for the purpose of voting on such
approval, of a majority of the Trustees of the Fund who are not interested
persons of the Fund or of the Manager.
5. EFFECTIVE PERIOD AND TERMINATION OF THIS CONTRACT.
This Contract shall become effective upon its execution, and shall remain
in full force and effect continuously thereafter (unless terminated
automatically as set forth in Section 4) until terminated as follows:
(a) Either party hereto may at any time terminate this Contract by not more
than sixty days' nor less than thirty days' written notice delivered or
mailed by registered mail, postage prepaid, to the other party, or
(b) If (i) the Trustees of the Fund or the shareholders by the affirmative
vote of a majority of the outstanding shares of the Fund, and (ii) a majority
of the Trustees of the Fund who are not interested persons of the Fund or of
the Manager, by vote cast in person at a meeting called for the purpose of
voting on such approval, do not specifically approve at least annually the
continuance of this Contract, then this Contract shall automatically terminate
at the close of business on the second anniversary of its execution, or upon
the expiration of one year from the effective date of the last such
continuance, whichever is later.
Action by the Fund under (a) above may be taken either (i) by vote of a
majority of its Trustees, or (ii) by the affirmative vote of a majority of
the outstanding shares of the Fund.
Termination of this Contract pursuant to this Section 5 will be without the
payment of any penalty.
6. CERTAIN DEFINITIONS.
For the purposes of this Contract, the "affirmative vote of a majority of
the outstanding shares of the Fund" means the affirmative vote, at a duly
called and held meeting of shareholders of the Fund, (a) of the holders of
67% or more of the shares of the Fund present (in person or by proxy) and
entitled to vote at such meeting, if the holders of more than 50% of the
outstanding shares of the Fund entitled to vote at such meeting are present
in person or by proxy, or (b) of the holders of more than 50% of the
outstanding shares of the Fund entitled to vote at such meeting, whichever
is less.
For the purposes of this Contract, the terms "affiliated person",
"control", "interested person" and "assignment" shall have their respective
meanings defined in the Investment Company Act of 1940 and the Rules and
Regulations thereunder, subject, however, to such exemptions as may be
granted by the Securities and Exchange Commission under said Act; the term
"specifically approve at least annually" shall be construed in a manner
consistent with the Investment Company Act of 1940 and the Rules and
Regulations thereunder; and the term "brokerage and research services"
shall have the meaning given in the Securities Exchange Act of 1934 and
the Rules and Regulations thereunder.
7. NON-LIABILITY OF MANAGER.
In the absence of willful misfeasance, bad faith or gross negligence on the
part of the Manager, or reckless disregard of its obligations and duties
hereunder, the Manager shall not be subject to any liability to the Fund or
to any shareholder of the Fund, for any act or omission in the course of,
or connected with, rendering services hereunder.
8. TERMINATION OF PRIOR CONTRACT.
This Contract shall become effective as of its date, and supersedes the
Management Contract dated June 4, 1999.
9. LIMITATION OF LIABILITY OF THE TRUSTEES, OFFICERS AND SHAREHOLDERS.
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of State of The Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the Trustees of
the Fund as Trustees and not individually and that the obligations of or
arising out of this instrument are not binding upon any of the Trustees,
officers or shareholders individually but are binding only upon the assets
and property of the Fund.
IN WITNESS WHEREOF, XXXXXX NEW OPPORTUNITIES FUND and XXXXXX INVESTMENT
MANAGEMENT, INC. have each caused this instrument to be signed in duplicate
in its behalf by its President or a Vice President thereunto duly authorized,
all as of the day and year first above written.
XXXXXX NEW OPPORTUNITIES FUND
By:
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Xxxxxxx X. Xxxxxx
Executive Vice President
XXXXXX INVESTMENT MANAGEMENT, INC.
By:
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Xxxxxx X. Silver
Senior Managing Director
