PORTFOLIO MANAGEMENT AGREEMENTAGREEMENT made this __________day of August,
1995 between ▇▇▇▇▇▇▇ Partners, Inc. a corporation organized underthe laws of
Delaware ("Portfolio Manager") and THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST, a Delaware
business trust("Trust").
WHEREAS, the Trust is registered as an open-end, diversified, management
series investment company under theInvestment Company Act of 1940, as amended
("Investment Company Act") which currently offers five series of
beneficialinterests ("shares") representing interests in separate investment
portfolios, and may offer additional portfolios in the future; and
WHEREAS, the Trust desires to retain the Portfolio Manager to provide a
continuous program of investment managementfor The International Equity
Portfolio of the Trust ("Portfolio") and Portfolio Manager is willing, in
accordance with theterms and conditions hereof, to provide such services to
the Trust; NOW THEREFORE, in consideration of the promises and covenants set
forth herein and intending to be legally boundhereby, it is agreed between the
parties as follows:
1. Appointment of Portfolio Manager. The Trust hereby retains Portfolio
Manager to provide the investment services set forth herein and Portfolio
Manageragrees to accept such appointment. In carrying out its
responsibilities under this Agreement, the Portfolio Manager ▇▇▇▇▇▇▇ all
times act in accordance with the investment objectives, policies and
restrictions applicable to the Portfolio as set forthin the then current
Registration Statement of the Trust, applicable provisions of the Investment
Company Act and the rulesand regulations promulgated under that Act and other
applicable federal securities laws.
2. Duties of Portfolio Manager. (a) Portfolio Manager shall provide a
continuous program of investment management for that portion of the assets of
thePortfolio ("Account") that may, from time to time be allocated to it by the
Trust's Board of Trustees, in writing, by anauthorized officer of the Trust.
It is understood that the Account may consist of all, a portion of or none of
the assets ofthe Portfolio, and that the Board of Trustees has the right to
allocate and reallocate such assets to the Account at any time,and from time
to time, upon such notice to the Portfolio Manager as may be reasonably
necessary, in the view of the Trust,to ensure orderly management of the
Account or the Portfolio. (b) Subject to the general supervision of the
Trust's Board of Trustees, Portfolio Manager shall have sole
investmentdiscretion with respect to the Account, including investment
research, selection of the securities to be purchased and soldand the portion
of the Account, if any, that shall be held uninvested, and the selection of
brokers and dealers through whichsecurities transactions in the Account shall
be executed. Specifically, and without limiting the generality of the
foregoing,Portfolio Manager agrees that it will:
(i) promptly advise the Portfolio's designated custodian bank and
administrator or accounting agent of eachpurchase and sale, as the case may
be, made on behalf of the Account, specifying the name and quantity of the
securitypurchased or sold, the unit and aggregate purchase or sale price,
commission paid, the market on which the transaction waseffected, the trade
date, the settlement date, the identity of the effecting broker or dealer
and/or such other information, and in such manner, as may from time to time be
reasonably requested by the Trust;
(ii) maintain all applicable books and records with respect to the
securities transactions of the Account. Specifically, Portfolio Manager agrees
to maintain with respect to the Account those records required to be
maintainedunder Rule 31a-1(b)(1), (b)(5) and (b)(6) under the Investment
Company Act with respect to transactions in the Accountincluding, without
limitation, records which reflect securities purchased or sold in the Account,
showing for each suchtransaction, the name and quantity of securities, the
unit and aggregate purchase or sale price, commission paid, the ▇▇▇▇▇▇▇▇ which
the transaction was effected, the trade date, the settlement date, and the
identity of the effecting broker or dealer. Portfolio Manager will preserve
such records in the manner and for the periods prescribed by Rule 31a-2 under
theInvestment Company Act. Portfolio Manager acknowledges and agrees that all
records it maintains for the Trust are theproperty of the Trust and Portfolio
Manager will surrender promptly to the Trust any such records upon the Trust's
request. The Trust agrees, however, that Portfolio Manager may retain copies
of those records that are required to be maintainedby Portfolio Manager under
federal or state regulations to which it may be subject or are reasonably
necessary for purposesof conducting its business;
(iii) provide, in a timely manner, such information as may be
reasonably requested by the Trust or its designatedagents in connection with,
among other things, the daily computation of the Portfolio's net asset value
and net income,preparation of proxy statements or amendments to the Trust's
registration statement and monitoring investments made inthe Account to
ensure compliance with the various limitations on investments applicable to
the Portfolio and to ensure that the Portfolio will continue to qualify for
the special tax treatment accorded to regulated investment companies
underSubchapter M of the Internal Revenue Code of 1986, as amended; and
(iv) render regular reports to the Trust concerning the
performance of Portfolio Manager of its responsibilitiesunder this
Agreement. In particular, Portfolio Manager agrees that it will, at the
reasonable request of the Board ofTrustees, attend meetings of the Board or
its validly constituted committees and will, in addition, make its officers
andemployees available to meet with the officers and employees of the Trust at
least quarterly and at other times uponreasonable notice, to review the
investments and investment program of the Account.
3. Portfolio Transaction and Brokerage. In placing orders for portfolio
securities with brokers and dealers, PortfolioManager shall use its best
efforts to execute securities transactions on behalf of the Account in such a
manner that the totalcost or proceeds in each transaction is the most
favorable under the circumstances. Portfolio Manager may, however, inits
discretion, direct orders to brokers that provide to Portfolio Manager
research, analysis, advice and similar services, andPortfolio Manager may
cause the Account to pay to those brokers a higher commission than may be
charged by otherbrokers for similar transactions, provided that Portfolio
Manager determines in good faith that such commission isreasonable in terms
either of the particular transaction or of the overall responsibility of the
Portfolio Manager to theAccount and any other accounts with respect to which
Portfolio Manager exercises investment discretion, and providedfurther that
the extent and continuation of any such practice is subject to review by the
Trust's Board of Trustees. PortfolioManager shall not execute any portfolio
transactions for the Trust with a broker or dealer which is an "affiliated
person"of the Trust or Portfolio Manager, including any other investment
advisory organization that may, from time to time actas a portfolio manager
for the Portfolio or any of the Trust's other Portfolios, without prior
written approval of the Trust. The Trust shall provide a list of such
affiliated brokers and dealers to Portfolio Manager and will promptly advise
PortfolioManager of any changes in such list.
4. Expenses and Compensation.Portfolio Manager shall pay all of its
expenses incurred in the performance of its duties under this Agreement and
shallnot be required to pay any other expenses of the Trust. For its services
under this Agreement, Portfolio Manager shall beentitled to receive a fee at
the annual rate of .40% of the average daily net asset value of the Account,
which fee shall bepayable monthly.
5. Limitation of Liability and Indemnification.(a) Portfolio Manager shall
not be liable for any error of judgment or mistake of law or for any loss
suffered by the Trustin connection with the matters to which this Agreement
relates including, without limitation, losses that may be sustainedin
connection with the purchase, holding, redemption or sale of any security or
other investment by the Trust except a lossresulting from willful misfeasance,
bad faith or gross negligence on the part of Portfolio Manager in the
performance ofits duties or from reckless disregard by it of its duties under
this Agreement.
(b) Notwithstanding the foregoing, Portfolio Manager expressly agrees that the
Trust may rely upon written informationprovided, in writing, by Portfolio
Manager to the Trust (including, without limitation, information contained in
PortfolioManager's then current Form ADV) in accordance with Section 9 of the
Agreement or otherwise, in preparing the Trust'sregistration statement and
amendments thereto and certain periodic reports relating to the Trust and its
Portfolios that arerequired to be furnished to shareholders of the Trust
and/or filed with the Securities and Exchange Commission ("SECFilings").
Portfolio Manager agrees to indemnify and hold harmless the Trust and each of
its Trustees, officers andemployees from any claims, liabilities and expenses,
including reasonable attorneys' fees, incurred as a result of any
untruestatement or alleged untrue statement of a material fact made by
Portfolio Manager in any such written information and
upon which the Trust relies in preparing any SEC Filing, or any omission
or alleged omission to state in such writteninformation a material fact
necessary to make such statements not misleading ("material omission").
Portfolio Managerwill not, however, be required to so indemnify any person
under this Section 5 to the extent that Portfolio Manager reliedupon an untrue
statement or material omission made by an officer or Trustee of the Trust or
where such untrue statementor material omission was made in reliance upon
information furnished to the Portfolio Manager in writing by such officeror
Trustee, or by the Trust's Custodian, Administrator or Accounting Agent.
6. Permissible Interest.Subject to and in accordance with the Trust's
Declaration of Trust and Bylaws and corresponding governing documentsof
Portfolio Manager, Trustees , officers, agents and shareholders of the Trust
may have an interest in the PortfolioManager as officers, directors, agents
and/or shareholders or otherwise. Portfolio Manager may have similar interests
inthe Trust. The effect of any such interrelationships shall be governed by
said governing documents and the provisions ofthe Investment Company Act.
7. Duration, Termination and Amendments.This Agreement shall become effective
as of the date first written above and shall continue in effect for two years.
Thereafter, this Agreement shall continue in effect from year to year for so
long as its continuance is specifically approved,at least annually, by (i) a
majority of the Board of Trustees or the vote of the holders of a majority of
the Portfolio'soutstanding voting securities; and (ii) the affirmative vote,
cast in person at a meeting called for the purpose of voting onsuch
continuance, of a majority of those members of the Board of Trustees
("Independent Trustees ") who are not"interested persons" of the Trust or any
investment adviser to the Trust.
This Agreement may be terminated by the Trust or by Portfolio Manager at
any time and without penalty upon sixty dayswritten notice to the other party,
which notice may be waived by the party entitled to it. This Agreement may
not beamended except by an instrument in writing and signed by the party to be
bound thereby provided that if the InvestmentCompany Act requires that such
amendment be approved by the vote of the Board, the Independent Trustees
and/or theholders of the Trust's or the Portfolio's outstanding shareholders,
such approval must be obtained before any suchamendment may become effective.
This Agreement shall terminate upon its assignment.
For purposes of this Agreement, the terms "majority of the outstanding voting
securities, "assignment" and "interestedperson" shall have the meanings set
forth in the Investment Company Act. 8. Confidentiality; Use of Name.(a)
Portfolio Manager acknowledges and agrees that during the course of its
responsibilities hereunder, it may have accessto certain information that is
proprietary to the Trust or to one or more of the Trust's agents or service
providers. PortfolioManager agrees that Portfolio Manager, its officers and
its employees shall treat all such proprietary information asconfidential and
will not use or disclose information contained in, or derived from such
material for any purpose other thanin connection with the carrying out of
Portfolio Manager's responsibilities hereunder. In addition, Portfolio
Manager shall use its best efforts to ensure that any agent or affiliate of
Portfolio Manager who may gain access to such proprietarymaterials shall be
made aware of the proprietary nature of such materials and shall likewise
treat such materials as confidential.
(b) It is acknowledged and agreed that the names "▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,"
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Chief Investment Officers" (whichis a registered trademark
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Co., Inc. ("HCCI")), and derivatives of either, as well
as any logo that isnow or shall later become associated with either name
("Marks") are valuable property of HCCI and that the use of theMarks, or any
one of them, by the Trust or its agents is subject to the license granted to
the Trust HCCI. Portfolio Manageragrees that it will not use any ▇▇▇▇ without
the prior written consent of the Trust. Portfolio Manager consents to use
ofits name, performance data, biographical data and other pertinent data by
the Trust for use in marketing and sales literature,provided that any such
marketing and sales literature shall not be used by the Trust without the
prior written consent ofPortfolio Manager, which consent shall not be
unreasonably withheld. The provisions of this Section 8 shall
survivetermination of this Agreement.
9. Representation, Warranties and Agreements of Portfolio Manager. Portfolio
Manager represents and warrants that:
(a) It is registered as an investment adviser under the Investment Advisers
Act of 1940 ("Investment Advisers Act"), it willmaintain such registration in
full force and effect and will promptly report to the Trust the commencement
of any formalproceeding that could render the Portfolio Manager ineligible to
serve as an investment adviser to a registered investmentcompany under Section
9 of the Investment Company Act.
(b) It understands that, as a result of its services hereunder, certain of its
employees and officers may be deemed "accesspersons" of the Trust within the
meaning of Rule 17j-1 under the Investment Company Act and that each such
accessperson is subject to the provisions of the code of ethics ("Trust's
Code") adopted by the Trust in compliance with such rule. Portfolio Manager
further represents that it is subject to a written code of ethics ("Portfolio
Manager's Code") complyingwith the requirements of Rule 204-2(a)(12) under the
Investment Advisers Act and will provide the Trust with a copy of
such code of ethics. During the period that this Agreement is in
effect, an officer or director of Portfolio Manager shallcertify to the Trust,
at least quarterly, that Portfolio Manager has complied with the requirements
of the Portfolio Manager'sCode during the prior year; and that either (i) that
no violation of such code has occurred or (ii) if such a violation
occurred,that appropriate action was taken in response to such violation.
Upon the written request of the Trust, Portfolio Managershall permit the
Trust, or it designated agents, to examine the reports required to be made by
Portfolio Manager under rule17j-1(c)(1) under the Investment Company Act. In
addition, Portfolio Manager acknowledges that the Trust may, inresponse to
regulations or recommendations issued by the Securities and Exchange
Commission or other regulatoryagencies, from time to time, request additional
information regarding the personal securities trading of its
directors,partners, officers and employees and the policies of Portfolio
Manager with regard to such trading. Portfolio Manageragrees that it make
every effort to respond to the Trust's reasonable requests in this area.
(c) Upon request of the Trust, Portfolio Manager shall promptly supply the
Trust with any information concerning PortfolioManager and its stockholders,
employees and affiliates that the Trust may reasonably require in connection
with thepreparation of its registration statements, proxy materials, reports
and other documents required, under applicable state orFederal laws, to be
filed with state or Federal agencies or to be provided to shareholders of the
Trust.
10. Status of Portfolio Manager. The Trust and Portfolio Manager acknowledge
and agree that the relationship between Portfolio Manager and the Trustis that
of an independent contractor and under no circumstances shall any employee of
Portfolio Manager be deemed anemployee of the Trust or any other organization
that the Trust may, from time to time, engage to provide services to the
Trust, its Portfolios or its shareholders. The parties also acknowledge
and agree that nothing in this Agreement shall beconstrued to restrict the
right of Portfolio Manager or its affiliates to perform investment management
or other services toany person or entity, including without limitation, other
investment companies and persons who may retain PortfolioManager to provide
investment management services and the performance of such services shall not
be deemed to violateor give rise to any duty or obligations to the Trust.
11. Counterparts and Notice. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original. Any
noticerequired to be given under this Agreement shall be deemed given when
received, in writing addressed and delivered, bycertified mail, by hand or via
overnight delivery service as follows:
If to the Trust:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Portfolio Manager:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
12. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way defineor delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not
beaffected thereby. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and theirrespective successors and shall be
governed by the law of the state of Delaware provided that nothing herein
shall beconstrued as inconsistent with the Investment Company Act or the
Investment Advisers Act.
Portfolio Manager is hereby expressly put on notice of the limitations of
shareholder and Trustee liability set forth in theDeclaration of Trust of the
Trust and agrees that obligations assumed by the Trust pursuant to this
Agreement shall belimited in all cases to the assets of The International
Equity Portfolio. Portfolio Manager further agrees that it will not
seeksatisfaction of any such obligations from the shareholders or any
individual shareholder of the Trust, or from the Trusteesof the Trust or any
individual Trustee of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto dulyauthorized as of the day and year
first written above.
▇▇▇▇▇▇▇ Partners, Inc.
By: /s/
The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust
By: /s/