Exhibit d
MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT, dated as of September 17, 2002, by and between
▇▇▇▇▇ ▇▇▇▇▇▇ Trust II, a Massachusetts business trust (the "Trust"), and ▇▇▇▇▇
▇▇▇▇▇▇ Fund Management LLC, a Delaware limited liability corporation ("▇▇▇▇▇
▇▇▇▇▇▇ Management" or the "Manager").
W I T N E S S E T H:
WHEREAS, the Trust engages in business as an open-end management
investment company and is registered as such under the Investment Company Act of
1940, as amended (collectively with the rules and regulations promulgated
thereunder and any exemptive orders thereunder, the "1940 Act"), and
WHEREAS, the Trust wishes to engage ▇▇▇▇▇ ▇▇▇▇▇▇ Management to provide
certain management services for the series of the Trust designated in Schedule A
annexed hereto (the "Fund"), and ▇▇▇▇▇ ▇▇▇▇▇▇ Management is willing to provide
such management services for the Fund on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of Manager. (a) ▇▇▇▇▇ ▇▇▇▇▇▇ Management shall act as the
Manager for the Fund and as such shall furnish continuously an investment
program and shall determine from time to time what securities shall be
purchased, sold or exchanged and what portion of the assets of the Fund shall be
held uninvested, subject always to the restrictions of the Trust's Declaration
of Trust, dated as of September 28, 2001, and By-Laws, as each may be amended
and restated from time to time (respectively, the "Declaration" and the
"By-Laws"), the provisions of the 1940 Act, and the then-current Registration
Statement of the Trust with respect to the Fund. The Manager shall also make
recommendations as to the manner in which voting rights, rights to consent to
corporate action and any other rights pertaining to the Fund's portfolio
securities shall be exercised. Should the Board of Trustees of the Trust at any
time, however, make any definite determination as to investment policy
applicable to the Fund 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notice or until similarly notified that such determination has been revoked.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 Fund, 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 securities for the
Fund's account with the 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 or any subcustodian of the Fund as to deliveries of securities and
payments of cash for the account of the Fund. In connection with the selection
of such brokers or dealers and the placing of such orders, brokers or dealers
may be selected who also provide brokerage and research services (as those terms
are defined in Section 28(e) of the Securities Exchange Act of 1934) to the Fund
and/or the other accounts over which the Manager or its affiliates exercise
investment discretion. The Manager is authorized to pay a broker or dealer who
provides such brokerage and research services a commission for executing a
portfolio transaction for the Fund which is 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 is reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer. This determination may be viewed in
terms of either that particular transaction or the overall responsibilities
which the Manager and its affiliates have with respect to accounts over which
they exercise investment discretion. In making purchases or sales of securities
or other property for the account of the Fund, the Manager may deal with itself
or with the Trustees of the Trust or the Trust's underwriter or distributor or
with its or their respective affiliates, or affiliates of affiliates, to the
extent such actions are permitted by the 1940 Act. In providing the services and
assuming the obligations set forth herein, the Manager may employ, at its own
expense, or may request that the Trust employ at each Fund's expense, one or
more subadvisers; provided that in each case the Manager shall supervise the
activities of each subadviser. Any agreement between the Manager and a
subadviser shall be subject to the renewal, termination and amendment provisions
applicable to this Agreement. Any agreement between the Trust on behalf of the
Fund and a subadviser may be terminated by the Manager at any time on not more
than 60 days' nor less than 30 days' written notice to the Trust and the
subadviser. To the extent authorized by the Board of Trustees and subject to
applicable provisions of the 1940 Act, the investment program to be provided
hereunder may entail the investment of all or a portion of the assets of the
Fund in one or more investment companies.
(b) Subject to the direction and control of the Board of Trustees of
the Trust, ▇▇▇▇▇ ▇▇▇▇▇▇ Management shall perform such administrative and
management services as may from time to time be reasonably requested by the
Trust with respect to the Fund, which shall include without limitation: (i)
providing office space, equipment and clerical personnel necessary for
maintaining the organization of the Trust and the Fund and for performing the
administrative and management functions herein set forth; (ii) supervising the
overall administration of the Fund, including negotiation of contracts and fees
with and the monitoring of performance and ▇▇▇▇▇▇▇▇ of the Fund's transfer
agent, shareholder servicing agents, custodian and other independent contractors
or agents; and (iii) arranging for maintenance of books and records of the Trust
with respect to the Fund. Notwithstanding the foregoing, ▇▇▇▇▇ ▇▇▇▇▇▇ Management
shall not be deemed to have assumed any duties with respect to, and shall not be
responsible for, the distribution of shares of beneficial interest in the Fund,
nor shall the Manager be deemed to have assumed or have any responsibility with
respect to functions specifically assumed by any transfer agent, fund accounting
agent, custodian or shareholder servicing agent of the Trust or the Fund. In
providing administrative and management services as set forth herein, the
Manager may, at its own expense, employ one or more subadministrators; provided
that the Manager shall remain fully responsible for the performance of all
administrative and management duties set forth herein and shall supervise the
activities of each subadministrator.
2. Allocation of Charges and Expenses. ▇▇▇▇▇ ▇▇▇▇▇▇ Management shall
furnish at its own expense all necessary services, facilities and personnel in
connection with its responsibilities under Section 1 above. Except as provided
in the foregoing sentence, it is understood that the Trust will pay from the
assets of the Fund all of its own expenses allocable to the Fund including,
without limitation, organization costs of the Fund; compensation of Trustees who
are not "affiliated persons" of ▇▇▇▇▇ ▇▇▇▇▇▇ Management; governmental fees;
interest charges; brokerage fees and commissions; loan commitment fees; taxes;
membership dues in industry associations allocable to the Trust; fees and
expenses of independent auditors, legal counsel and any transfer agent,
distributor, shareholder servicing agent, service agent, registrar or dividend
disbursing agent of the Trust; expenses of issuing and redeeming shares of
beneficial interest and servicing shareholder accounts; expenses of preparing,
typesetting, printing and mailing prospectuses, statements of additional
information, shareholder reports, notices, proxy statements and reports to
governmental officers and commissions and to existing shareholders of the Fund;
expenses connected with the execution, recording and settlement of security
transactions; insurance premiums; fees and expenses of the custodian for all
services to the Fund, including safekeeping of funds and securities and
maintaining required books and accounts; expenses of calculating the net asset
value of the Fund (including but not limited to the fees of independent pricing
services); expenses of meetings of the Fund's Trustees and of the Fund's
shareholders; expenses relating to the registration and qualification of shares
of the Fund; and such non-recurring or extraordinary expenses as may arise,
including those relating to actions, suits or proceedings to which the Trust on
behalf of the Fund may be a party and the legal obligation which the Trust may
have to indemnify its Trustees and officers with respect thereto.
3. Compensation of Manager. For the services to be rendered and the
facilities to be provided by the Manager hereunder, the Trust shall pay to the
Manager from the assets of the Fund a management fee computed daily and paid
monthly at an annual rate equal to the lesser of (i) that percentage of the
Fund's average daily net assets for the Fund's then-current fiscal year set
forth opposite the Fund's name on Schedule A annexed hereto (the "Aggregate
Management Fee"), minus the Fund's Aggregate Subadviser Fee (as defined below),
if any, and (ii) the difference between that Fund's Aggregate Management Fee for
the Fund's then-current fiscal year and the aggregate management fees allocated
to the Fund for the Fund's then-current fiscal year from the registered
investment company portfolios in which it invests (for which the Manager or an
affiliate serves as investment adviser). To the extent that the Fund's Aggregate
Subadviser Fee exceeds the Fund's Aggregate Management Fee, the Manager shall
pay such amount to the applicable subadvisers on the Fund's behalf. The Fund's
Aggregate Subadviser Fee is the aggregate amount payable by that Fund to
subadvisers pursuant to agreements between the Trust on behalf of the Fund and
the subadvisers. If the Manager provides services hereunder for less than the
whole of any period specified in this Section 3, the compensation to the Manager
shall be accordingly adjusted and prorated.
4. Covenants of Manager. The Manager agrees that it will not deal with
itself, or with the Trustees of the Trust or the Trust's principal underwriter
or distributor, as principals in making purchases or sales of securities or
other property for the account of the Fund, except as permitted by the 1940 Act,
and will comply with all other provisions of the Declaration and By-Laws and the
then-current Registration Statement applicable to the Fund relative to the
Manager and its directors and officers.
5. Limitation of Liability of Manager. ▇▇▇▇▇ ▇▇▇▇▇▇ Management 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 execution of
securities transactions for the Fund, 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 Section 5,
the term "▇▇▇▇▇ ▇▇▇▇▇▇ Management" shall include directors, officers and
employees of the Manager as well as the Manager itself.
6. Activities of Manager. The services of the Manager to the Fund are
not to be deemed to be exclusive, the Manager being free to render investment
advisory, administrative and/or other services to others. It is understood that
Trustees, officers, and shareholders of the Trust are or may be or may become
interested in the Manager, as directors, officers, employees, or otherwise and
that directors, officers and employees of the Manager are or may become
similarly interested in the Trust and that the Manager may be or may become
interested in the Trust as a shareholder or otherwise.
7. Duration, Termination and Amendments of this Agreement. This
Agreement shall become effective as of the day and year first above written,
shall govern the relations between the parties hereto thereafter and shall
remain in force for a period of two years from its effectiveness, on which date
it will terminate unless its continuance with respect to the Fund after that
date is "specifically approved at least annually" (a) by the vote of a majority
of the Trustees of the Trust who are not "interested persons" of the Trust or of
▇▇▇▇▇ ▇▇▇▇▇▇ Management at a meeting specifically called for the purpose of
voting on such approval, and (b) by the Board of Trustees of the Trust or by
"vote of a majority of the outstanding voting securities" of the Fund.
This Agreement may be terminated at any time with respect to the Fund
without the payment of any penalty by the Trustees or by the "vote of a majority
of the outstanding voting securities" of the Fund, or by the Manager, in each
case on not more than 60 days' nor less than 30 days' written notice to the
other party. This Agreement shall automatically terminate in the event of its
"assignment."
This Agreement may be amended with respect to the Fund only if such
amendment is approved by the "vote of a majority of the outstanding voting
securities" of the Fund (except for any such amendment as may be effected in the
absence of such approval without violating the 1940 Act).
The terms "specifically approved at least annually," "vote of a
majority of the outstanding voting securities," "assignment," "affiliated
person," and "interested persons," when used in this Agreement, shall have the
respective meanings specified in, and shall be construed in a manner consistent
with, the 1940 Act, subject, however, to such exemptions as may be granted by
the Securities and Exchange Commission under said Act.
8. Licenses. The Trust hereby agrees, on behalf of the Fund, to
reimburse the Manager for any and all reasonable costs incurred by the Manager
relating to the acquisition and retention of licenses to be used in connection
with the management of that Fund.
9. Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
10. Use of Name. The Trust hereby acknowledges that any and all rights
in or to the name "▇▇▇▇▇ ▇▇▇▇▇▇" which exist on the date of this Agreement or
which may arise hereafter are, and under any and all circumstances shall
continue to be, the sole property of the Manager; that the Manager may assign
any or all of such rights to another party or parties without the consent of the
Trust; and that the Manager may permit other parties, including other investment
companies, to use the word "▇▇▇▇▇ ▇▇▇▇▇▇" in their names. If the Manager, or its
assignee as the case may be, ceases to serve as the manager of the Trust, the
Trust hereby agrees to take promptly any and all actions which are necessary or
desirable to change its name and those of each of its series or classes so as to
delete the word "▇▇▇▇▇ ▇▇▇▇▇▇."
Each party acknowledges and agrees that all obligations of the Trust
under this Agreement are binding only with respect to the Fund; that any
liability of the Trust under this Agreement, or in connection with the
transactions contemplated herein, shall be discharged only out of the assets of
that Fund; and that no other series of the Trust shall be liable with respect to
this Agreement or in connection with the transactions contemplated herein.
The undersigned officer of the Trust has executed this Agreement not
individually, but as an officer under the Declaration and the obligations of
this Agreement are not binding upon any of the Trustees, officers or
shareholders of the Trust individually.
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
▇▇▇▇▇ ▇▇▇▇▇▇ TRUST II ▇▇▇▇▇ ▇▇▇▇▇▇
on behalf of the series listed FUND MANAGEMENT LLC
on Schedule A
By: /s/ ▇. ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President Title: Secretary
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Schedule A
Aggregate Management Fee (expressed as a
percentage of
each Fund's aggregate net assets
for its then-current fiscal year)
---------------------------------
Post
Guarantee Guarantee
Fund Offering Period Period Period
---- --------------- ------ ------
▇▇▇▇▇ ▇▇▇▇▇▇ Capital Preservation
Fund II 0.35% 0.75% 0.75%