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EXHIBIT 5
MANAGEMENT AGREEMENT
AGREEMENT made as of January 1, 1997, by and between XXXXXXX XXXXX
INDEX TRUST, a Delaware business trust (hereinafter referred to as the "Trust")
on behalf of its series named in the one or more Addenda hereto (each, a
"Series") and XXXXXXX XXXXX ASSET MANAGEMENT, L.P., a Delaware limited
partnership, doing business as XXXXXXX XXXXX ASSET MANAGEMENT (hereinafter
referred to as the "Manager"). This Agreement and the Addendum or Addenda
pertaining to a Series shall constitute the "investment advisory contract" for
the Series for purposes of Section 15(a) of the Investment Company Act of 1940,
as amended (hereinafter referred to as the "Investment Company Act").
W I T N E S S E T H:
WHEREAS, the Trust is engaged in business as an open-end management
investment company registered under the Investment Company Act of 1940, as
amended (hereinafter referred to as the "Investment Company Act"); and
WHEREAS, the Trustees of the Trust (the "Trustees") are authorized to
establish separate series relating to separate portfolios of securities, each
of which may offer separate classes of shares; and
WHEREAS, the Trustees have established and designated the Series as
series of the Trust; and
WHEREAS, the Manager is engaged principally in rendering management
and investment advisory services and is registered as an investment adviser
under the Investment Advisers Act of 1940; and
WHEREAS, the Trust desires to retain the Manager to provide management
and investment advisory services to the Series in the manner and on the terms
hereinafter set forth; and
WHEREAS, the Manager is willing to provide management and investment
advisory services to the Series on the terms and conditions hereafter set
forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Trust and the Manager hereby agree as follows:
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ARTICLE I
DUTIES OF THE MANAGER
The Trust hereby employs the Manager to act as a manager and
investment adviser of the Series and to furnish, or arrange for affiliates to
furnish, the management and investment advisory services described below,
subject to the policies of, review by and overall control of the Trustees, for
the period and on the terms and conditions set forth in this Agreement. The
Manager hereby accepts such employment and agrees during such period, at its
own expense, to render, or arrange for the rendering of, such services and to
assume the obligations herein set forth for the compensation provided for
herein. The Manager and its affiliates shall for all purposes herein be deemed
to be independent contractors and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Trust or the Series
in any way or otherwise be deemed agents of the Trust or the Series.
(a) Management Services. The Manager shall perform (or arrange for
the performance by affiliates of) the management and administrative services
necessary for the operation of the Trust and the Series including administering
shareholder accounts and handling shareholder relations. The Manager shall
provide the Trust and the Series with office space, facilities, equipment and
necessary personnel and such other services as the Manager, subject to review
by the Trustees, shall from time to time determine to be necessary or useful to
perform its obligations under this Agreement. The Manager shall also, on
behalf of the Trust and the Series, conduct relations with custodians,
depositories, transfer agents, dividend disbursing agents, other shareholder
servicing agents, accountants, attorneys, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and such other persons in any such other
capacity deemed to be necessary or desirable. The Manager shall generally
monitor the Trust's and the Series' compliance with investment policies and
restrictions as set forth in the Registration Statement of the Trust filed with
the Securities and Exchange Commission under the Investment Company Act, as
amended from time to time (the "Registration Statement"). The Manager shall
make reports to the Trustees of its performance of obligations hereunder and
furnish advice and recommendations with respect to such other aspects of the
business and affairs of the Series as it shall determine to be desirable.
(b) Investment Advisory Services. The Manager shall provide (or
arrange for affiliates to provide) the Trust with such investment research,
advice and supervision as the latter may from time to time consider necessary
for the proper supervision of the assets of the Series, shall furnish
continuously an investment program for the Series and shall determine from time
to time which securities shall be purchased, sold or exchanged and what portion
of the assets of the Series shall be held in the various securities and other
financial instruments in which the Series invests or cash, subject always to
the restrictions of the Declaration of Trust and By-Laws of the Trust, as
amended from time to time, the provisions of the Investment Company Act and the
statements relating to the Series' investment objectives, investment policies
and investment restrictions as the same are set forth in the Trust's current
Registration Statement. The Manager shall make decisions for the Trust as to
the manner in which voting rights, rights to consent to corporate action and
any other rights pertaining to the Series' portfolio securities shall be
exercised. Should the Trustees at any time,
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however, make any definite determination as to investment policy and notify the
Manager thereof in writing, the Manager shall be bound by such determination
for the period, if any, specified in such notice or until similarly notified
that such determination has been revoked. The Manager shall take, on behalf of
the Series, all actions which it deems necessary to implement the investment
policies determined as provided above, and in particular to place all orders
for the purchase or sale of portfolio securities for the Series' account with
brokers or dealers selected by it, and to that end, the Manager is authorized
as the agent of the Trust to give instructions to the custodian of the Series
as to deliveries of securities and payments of cash for the account of the
Series. In connection with the selection of such brokers or dealers and the
placing of such orders with respect to assets of the Series, the Manager is
directed at all times to seek to obtain execution and price within the policy
guidelines determined by the Trustees and set forth in the current Registration
Statement. Subject to this requirement and the provisions of the Investment
Company Act, the Securities Exchange Act of 1934, as amended, and other
applicable provisions of law, the Manager may select brokers or dealers with
which it or the Trust is affiliated.
ARTICLE II
ALLOCATION OF CHARGES AND EXPENSES
(a) The Manager. The Manager assumes and shall pay for
maintaining the staff and personnel necessary to perform its obligations under
this Agreement, and shall, at its own expense, provide the office space,
facilities and necessary personnel which it is obligated to provide under
Article I hereof, and shall pay compensation of all Officers of the Trust and
all Trustees of the Trust who are affiliated persons of the Manager.
(b) The Trust. The Trust assumes and shall pay or cause to be
paid all other expenses of the Trust and the Series (except for the expenses
paid by the Distributor), including, without limitation: taxes, expenses for
legal and auditing services, costs of printing proxies, stock certificates,
shareholder reports, copies of the Registration Statement, charges of the
custodian, any sub-custodian and transfer agent, expenses of portfolio
transactions, expenses of redemption of shares, Securities and Exchange
Commission fees, expenses of registering the shares under Federal, state and
foreign laws, fees and actual out-of-pocket expenses of Trustees who are not
affiliated persons of the Manager, accounting and pricing costs (including the
daily calculation of the net asset value), insurance, interest, brokerage
costs, litigation and other extraordinary or non-recurring expenses, and other
expenses properly payable by the Series. It is also understood that the Trust
shall reimburse the Manager for its costs in providing accounting services to
the Trust and the Series. The Distributor will pay certain of the expenses of
the Series incurred in connection with the continuous offering of shares of
beneficial interest of each the Series.
ARTICLE III
COMPENSATION OF THE MANAGER
Management and Investment Advisory Fee. For the services rendered,
the facilities furnished and expenses assumed by the Manager, the Series shall
pay to the Manager at the end of each
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calendar month a fee based upon the average daily value of the net assets of
the Series, as determined and computed in accordance with the description of
the determination of net asset value contained in the Registration Statement,
at the annual rate of set forth on the Addendum or Addenda pertaining to the
Series, commencing on the day following effectiveness hereof. If this
Agreement becomes effective subsequent to the first day of a month or shall
terminate before the last day of a month, compensation for that part of the
month this Agreement is in effect shall be prorated in a manner consistent with
the calculation of the fee as set forth above. Payment of the Manager's
compensation for the preceding month shall be made as promptly as possible
after completion of the computations contemplated above. During any period
when the determination of net asset value is suspended by the Trustees, the net
asset value of a share as of the last business day prior to such suspension
shall for this purpose be deemed to be the net asset value at the close of each
succeeding business day until it is again determined.
ARTICLE IV
LIMITATION OF LIABILITY OF THE MANAGER
The Manager shall not be liable for any error of judgment or mistake
of law or for any loss arising out of any investment or for any act or omission
in the management of the Trust and the Series, except for willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder. As used in this
Article IV, the term "Manager" shall include any affiliates of the Manager
performing services for the Trust or the Series contemplated hereby and
partners, directors, officers and employees of the Manager and such affiliates.
ARTICLE V
ACTIVITIES OF THE MANAGER
The services of the Manager to the Trust and the Series are not to be
deemed to be exclusive, and the Manager and each affiliate is free to render
services to others. It is understood that Trustees, officers, employees and
shareholders of the Trust and the Series are or may become interested in the
Manager and its affiliates, as directors, officers, employees, partners and
shareholders or otherwise, and that the Manager and directors, officers,
employees, partners and shareholders of the Manager and its affiliates are or
may become similarly interested in the Trust or the Series as shareholders or
otherwise.
ARTICLE VI
DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective with respect to a Series as of
the date such Series commences investment operations, and shall remain in force
with respect to such Series for two years thereafter or, if sooner, until such
date as may be set forth in the Addendum pertaining to the Series, and
thereafter, but only so long as such continuance is specifically approved at
least annually by (i) the Trustees, or with respect to any Series by the vote
of a majority of the outstanding voting
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securities of the Series, and (ii) a majority of those Trustees who are not
parties to this Agreement or interested persons of any such party cast in
person at a meeting called for the purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of
any penalty, by the Trustees or with respect to a Series by the vote of a
majority of the outstanding voting securities of the Series, or by the Manager,
on sixty days' written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment.
ARTICLE VII
AMENDMENTS OF THIS AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) (a) with respect to all Series, by the vote of a
majority of outstanding voting securities of the Series, and (b) with respect
to any one Series by the vote of a majority of outstanding voting securities of
such Series; and (ii) a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
ARTICLE VIII
DEFINITIONS OF CERTAIN TERMS
The terms "vote of majority of the outstanding voting securities,"
"assignment," "affiliated person" and "interested person," when used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the Rules and Regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under
said Act.
ARTICLE IX
GOVERNING LAW
This Agreement shall be construed in accordance with laws of the State
of New York and the applicable provisions of the Investment Company Act. To
the extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
ARTICLE X
Limitation of Obligations of the Series
The obligations of each Series hereunder shall be limited to the
assets of that Series, shall be separate from the obligations of each other
Series, and no Series shall be liable for the obligations of any other Series.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
XXXXXXX XXXXX INDEX TRUST
By: /s/ Xxxxx X. Xxxxx
Title: President
XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
By: /s/ Xxxxxx Xxxxxx
Title: President
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ADDENDUM A TO MANAGEMENT AGREEMENT
Name of Series Management Fee
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Xxxxxxx Xxxxx S&P 500 Index Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.05%
Xxxxxxx Xxxxx Small Cap Index Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.08%
Xxxxxxx Xxxxx Aggregate Bond Index Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.06%
Xxxxxxx Xxxxx International Index Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.11%
