Ex-99.23d
THE XXXXXXX PLAN INVESTMENT ADVISORY AGREEMENT
AGREEMENT, made by and between THE XXXXXXX PLAN, a Delaware business
trust, (hereinafter called the "Trust") and XXXXXXX PARTNERS, LTD., a Florida
limited partnership, (hereinafter called "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Trust has been organized and operates as an investment
company registered under the Investment Company Act of 1940 (the "1940 Act") and
engages in the business of investing and reinvesting its assets in securities,
and the Investment Adviser is a registered Investment Adviser under the
Investment Advisers Act of 1940 (the "Advisers Act") and engages in the business
of providing investment management services; and
WHEREAS, the Trust has selected the Investment Adviser to serve as the
investment adviser for The Xxxxxxx Plan Strategic Growth Fund Variable Series, a
series of the Trust (the "Fund"), effective as of the date of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and each of the parties hereto intending to be legally bound, it is agreed as
follows:
1. The Trust hereby employs the Investment Adviser to manage the investment
and reinvestment of the Fund's assets and to administer its affairs, subject to
the direction of the Board of Trustees and officers of the Trust for the period
and on the terms hereinafter set forth. The Investment Adviser hereby accepts
such employment and agrees during such period to render the services and assume
the obligations herein set forth for the compensation herein provided. The
Investment Adviser shall for all purposes herein, be deemed to be an independent
contractor, and shall, unless otherwise expressly provided and authorized, have
no authority to act for or to represent the Trust in any way, or in any way be
deemed an agent of the Trust. The Investment Adviser shall regularly make
decisions as to what securities to purchase and sell on behalf of the Fund and
shall record and implement such decisions and shall furnish the Board of
Trustees of the Trust with such information and reports regarding the Fund's
investments as the Investment Adviser deems appropriate or as the Trustees of
the Trust may reasonably request. Subject to compliance with the requirements of
the 1940 Act, the Investment Adviser may retain as a sub-adviser to the Fund, at
the Investment Adviser's own expense, any investment adviser registered under
the Advisers Act.
2. The Trust shall conduct its own business and affairs and shall bear the
expenses and salaries necessary and incidental thereto including, but not in
limitation of the foregoing, the costs incurred in: the maintenance of its
corporate existence; the maintenance of its own books, records and procedures;
dealing with its own shareholders; the payment of dividends; transfer of stock,
including issuance, redemption and repurchase of shares; preparation of share
certificates; reports and notices to shareholders; calling and holding
of shareholders' meetings; miscellaneous office expenses; brokerage commissions;
custodian fees; legal and accounting fees; and taxes. Partners and employees of
the Investment Adviser may be trustees, officers and employees of the funds of
which Xxxxxxx Partners, Ltd. is Investment Adviser. Partners and employees of
the Investment Adviser who are trustees, officers and/or employees of the Trust
shall not receive any compensation from the Trust for acting in such dual
capacity. In the conduct of the respective businesses of the parties hereto and
in the performance of this Agreement, the Trust and investment Adviser may share
facilities common to each, with appropriate proration of expenses between them.
3. (a) The Investment Adviser shall place and execute Fund orders for the
purchase and sale of portfolio securities with broker/dealers. Subject to the
primary objective of obtaining the best available prices and execution, the
Investment Adviser will place orders for the purchase and sale of portfolio
securities for the Fund with such broker/dealers as it may select from time to
time, including brokers who provide statistical, factual and financial
information and services to the Trust, to the Investment Adviser, or to any
other fund for which the Investment Adviser provides investment advisory
services and/or with broker/dealers who sell shares of the Fund or who sell
shares of any other fund for which the Investment Adviser provides investment
advisory services. Broker/dealers who sell shares of the funds of which Xxxxxxx
Partners, Ltd. is Investment Adviser, shall only receive orders for the purchase
or sale of portfolio securities to the extent that the placing of such orders is
in compliance with the Rules of the Securities and Exchange Commission and the
National Association of Securities Dealers, Inc.
(b) Notwithstanding the provisions of subparagraph (a) above and subject to
such policies and procedures as may be adopted by the Board of Trustees and
officers of the Trust, the Investment Adviser may ask the Trust and the Trust
may agree to pay a member of an exchange, broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission another member of an exchange, broker or dealer would have charged
for effecting that transaction, in such instances where it and the Investment
Adviser have determined in good faith that such amount of commission was
reasonable in relation to the value of the brokerage and research services
provided by such member, broker or dealer, viewed in terms of either that
particular transaction or the Investment Adviser's overall responsibilities with
respect to the Trust and to other funds for which the Investment Adviser
exercises investment discretion.
4. As compensation for the services to be rendered to the Trust by the
Investment Adviser under the provisions of this Agreement, the Trust shall pay
to the Investment Adviser from the Fund 's assets an annual fee equal to 0.10%
of the daily average net assets of the Fund, payable on a monthly basis, subject
to reduction to the extent necessary to comply with the most stringent limits
prescribed by any state in which the Trust's shares are offered for sale.
If this Agreement is terminated prior to the end of any calendar month, the
management fee shall be prorated for the portion of any month in which this
Agreement is in effect according to the proportion which the number of calendar
days, during which the Agreement is in effect, bears to the number of calendar
days in the month, and shall be payable within 10 days after the date of
termination.
5. The services to be rendered by the Investment Adviser to the Trust under
the provisions of this Agreement are not to be deemed to be exclusive, and the
Investment Adviser shall be free to render similar or different services to
others so long as its ability to render the services provided for in this
Agreement shall not be impaired thereby.
6. The Investment Adviser, its partners, employees, and agents may engage in
other businesses, may render investment advisory services to other investment
companies, or to any other corporation, association, firm or individual, and may
render underwriting services to the Trust or to any other investment company,
corporation, association, firm or individual.
7. In the absence of willful misfeasance, bad faith, gross negligence, or a
reckless disregard of the performance of duties of the Investment Adviser to the
Trust, the Investment Adviser shall not be subject to liabilities to the Trust
or to any shareholder of the Trust for any action 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, or otherwise.
8. The Trust agrees that, in the event that the Investment Adviser ceases to
be the Fund's investment adviser for any reason, the Trust will (unless the
Investment Adviser otherwise agrees in writing) promptly take all necessary
steps to propose to the shareholders at the next regular meeting that the Fund
change to a name not including the word "Xxxxxxx." The Trust agrees that the
word "Xxxxxxx" in its name is derived from the name of the Investment Adviser
and is the property of the Investment Adviser for copyright and all other
purposes and that therefore such word may be freely used by the Investment
Adviser as to other investment activities or other investment products.
9. This Agreement shall be executed and become effective as of the date
written below if approved by the vote of a majority of the outstanding voting
securities of the Fund. It shall continue in effect for a period of two years
and may be renewed thereafter only so long as such renewal and continuance is
specifically approved at least annually by the Board of Trustees or by vote of a
majority of the outstanding voting securities of the Fund and only if the terms
and the renewal hereof have been approved by the vote of a majority of the
Trustees of the Trust who are not parties hereto or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on such
approval. No provision of this Agreement may be changed, waived, discharged or
terminated orally, and no amendment of this Agreement shall be effective until
approved by the Board of Trustees, including a majority of the Trustees who are
not interested persons of the Investment Adviser or of the Trust, cast in person
at a meeting called for the purpose of voting on such approval, and (if required
under interpretations of the 1940 Act by the
Securities and Exchange Commission or its staff) by vote of the holders of a
majority of the outstanding voting securities of the Fund. Notwithstanding the
foregoing, this Agreement may be terminated by the Trust at any time, without
the payment of a penalty, on sixty days' written notice to the Investment
Adviser of the Trust's intention to do so, pursuant to action by the Board of
Trustees of the Trust or pursuant to a vote of a majority of the outstanding
voting securities of the Fund. The Investment Adviser may terminate this
Agreement at any time, without the payment of penalty on sixty days' written
notice to the Trust of its intention to do so. Upon termination of this
Agreement, the obligations of all the parties hereunder shall cease and
terminate as of the date of such termination, except for any obligation to
respond for a breach of this Agreement committed prior to such termination, and
except for the obligation of the Trust to pay to the Investment Adviser the fee
provided in Paragraph 4 hereof, prorated to the date of termination. This
Agreement shall automatically terminate in the event of its assignment.
10. Each of the undersigned expressly warrants and represents that he has the
full power and authority to sign this Agreement on behalf of the party
indicated, and that his signature will operate to bind the party indicated to
the foregoing terms. This Agreement shall extend to and bind the heirs,
executors, administrators and successors of the parties hereto.
11. (a) For the purposes of this Agreement, the terms "vote of a majority of
the outstanding voting securities"; "interested persons"; and "assignment" shall
have have their respective meanings as defined in the 1940 Act and rules and
regulations thereunder, subject, however, to such exemptions as may be granted
by the Securities and Exchange Commission under the 1940 Act; and the term
"brokerage and research services" shall have the meaning given in the Securities
Exchange Act of 1934.
(b) Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
1940 Act shall be resolved by reference to such term or provision of the 1940
Act and to interpretation thereof, if any, by the United States courts or in the
absence of any controlling decision of any such court, by the Securities and
Exchange Commission or its staff. In addition, where the effect of a requirement
of the 1940 Act, reflected in any provision of this Agreement, is revised by
rule, regulation, order or interpretation of the Securities and Exchange
Commission or its staff, such provision shall be deemed to incorporate the
effect of such rule, regulation, order or interpretation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers the 27th day of April, 2001.
THE XXXXXXX PLAN
By: /s/_________________________
Xxxxxx X. Ally, President
XXXXXXX PARTNERS, LTD.
By: COVENANT FUNDS, INC.
Managing General Partner
By: /s/________________________
Xxxxxx X. Ally, President
