EXHIBIT (d)
FORM OF ADVISORY AGREEMENT
XXXXXXX X. XXXXXXXXX FUND II, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[ ], 2002
ALLIANCE CAPITAL MANAGEMENT L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxxx X. Xxxxxxxxx Fund II, Inc. (the Corporation") herewith
confirms our agreement with you as follows:
1. We are an open-end, diversified management investment company
registered under the Investment Company Act of 1940, as amended (the "Act"). We
are currently authorized to issue separate classes of shares and our Directors
are authorized to reclassify and issue any unissued shares to any number of
additional classes or series (portfolios) each having its own investment
objective, policies and restrictions, all as more fully described in the
prospectuses and the statement of additional information constituting parts of
our Registration Statement on Form N-1A filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended, and
the Act (the "Registration Statement"). We propose to engage in the business of
investing and reinvesting
the assets of each of our portfolios in securities (the "portfolio assets") of
the type and in accordance with the limitations specified in our Articles of
Incorporation, Bylaws and Registration Statement, and any representations made
in our prospectus and statement of additional information, all in such manner
and to such extent as may from time to time be authorized by our Board of
Directors. We enclose copies of the documents listed above and will from time to
time furnish you with any amendments thereof.
2. (a) We hereby employ you to manage the investment and reinvestment
of the portfolio assets as above specified and, without limiting the generality
of the foregoing, to provide the management and other services specified below.
(b) You will make decisions with respect to all purchases and sales of
the portfolio assets. To carry out such decisions, you are hereby authorized, as
our agent and attorney-in-fact, for our account and at our risk and in our name,
to place orders for the investment and reinvestment of the portfolio assets. In
all purchases, sales and other transactions in the portfolio assets you are
authorized to exercise full discretion and act for us in the same manner and
with the same force and effect as we might or could do with respect to such
purchases, sales or other transactions, as well as with respect to all other
things necessary or incidental to the furtherance or conduct of such purchases,
sales or other transactions.
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(c) You will report to our Board of Directors at each meeting thereof
all changes in the portfolio assets since the prior report, and will also keep
us in touch with important developments affecting the portfolio assets and on
your own initiative will furnish us from time to time with such information as
you may believe appropriate for this purpose, whether concerning the individual
issuers whose securities are included in the portfolio assets, the industries in
which they engage, or the conditions prevailing in the economy generally. You
will also furnish us with such statistical and analytical information with
respect to the portfolio assets as you may believe appropriate or as we
reasonably may request. In making such purchases and sales of the portfolio
assets, you will bear in mind the policies set from time to time by our Board of
Directors as well as the limitations imposed by our Articles of Incorporation
and in our Registration Statement, in each case as amended from time to time,
the limitations in the Act and of the Internal Revenue Code of 1986, as amended,
in respect of regulated investment companies and the investment objective,
policies and practices, including restrictions, applicable to each of our
portfolios.
(d) It is understood that you will from time to time employ or
associate with yourselves such persons as you believe to be particularly fitted
to assist you in the execution of your duties hereunder, the cost of performance
of such duties to be borne and paid by you. No obligation may be incurred on our
behalf in any such respect. During the continuance of this
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Agreement and at our request you will provide to us persons satisfactory to
our Board of Directors to serve as our officers. You or your affiliates will
also provide persons, who may be our officers, to render such clerical,
accounting and other services to us as we may from time to time request of you.
Such personnel may be employees of you or your affiliates. We will pay to you or
your affiliates the cost of such personnel for rendering such services to us,
provided that all time devoted to the investment or reinvestment of the
portfolio assets shall be for your account. Nothing contained herein shall be
construed to restrict our right to hire our own employees or to contract for
services to be performed by third parties. Furthermore, you or your affiliates
shall furnish us without charge with such management supervision and assistance
and such office facilities as you may believe appropriate or as we may
reasonably request subject to the requirements of any regulatory authority to
which you may be subject. You or your affiliates shall also be responsible for
the payment of any expenses incurred in promoting the sale of our shares (other
than the costs of printing our prospectuses and reports to shareholders and fees
related to registration with the Commission and with state regulatory
authorities).
3. We hereby confirm that we shall be responsible and hereby assume
the obligation for payment of all of our expenses, including: (a) payment to you
of the fee provided for in paragraph 5 below; (b) custody, transfer and dividend
disbursing expenses; (c) fees of our Directors who are not your
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affiliated persons; (d) legal and auditing expenses; (e) clerical, accounting
and other office costs; (f) the cost of personnel providing services to us, as
provided in subparagraph (d) of paragraph 2 above; (g) costs of printing our
prospectuses and shareholder reports; (h) cost of maintenance of our corporate
existence; (i) interest charges, taxes, brokerage fees and commissions; (j)
costs of stationery and supplies; (k) expenses and fees related to registration
and filing with the Commission and with state regulatory authorities; and (l)
such promotional, shareholder servicing and other expenses as may be
contemplated by one or more effective plans pursuant to Rule 12b-1 under the Act
or one or more duly approved and effective non-Rule 12b-1 shareholder servicing
plans, in each case provided, however, that our payment of such promotional,
shareholder servicing and other expenses shall be in the amounts, and in
accordance with the procedures, set forth in such plan or plans.
4. We shall expect of you, and you will give us the benefit of, your
best judgment and efforts in rendering these services to us, and we agree as an
inducement to your undertaking these services that you shall not be liable
hereunder for any mistake of judgment or in any event whatsoever, except for
lack of good faith, provided that nothing herein shall be deemed to protect, or
purport to protect, you against any liability to us or to our security holders
to which you would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of your duties
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hereunder, or by reason of your reckless disregard of your obligations and
duties hereunder.
5. In consideration of the foregoing we will pay you, with respect to
the Xxxxxxxxx Intermediate Duration Institutional Portfolio, a monthly fee at
the annualized rate of (i) .50 of 1% of such portfolio's average daily net
assets up to, but not exceeding, $1,000,000,000; and (ii) .45 of 1% of such
portfolio's average daily net assets that exceed $1,000,000,000. Your
compensation for the period from the date hereof through the last day of the
month of the effective date hereof will be prorated based on the proportion that
such period bears to the full month. In the event of any termination of this
Agreement your compensation will be calculated on the basis of a period ending
on the last day on which this Agreement is in effect, subject to proration based
on the number of days elapsed in the current period as a percentage of the total
number of days in such period.
6. This Agreement shall become effective on the date hereof and shall
remain in effect until December 31, 2003, and continue in effect thereafter with
respect to a portfolio only so long as its continuance with respect to that
portfolio is specifically approved at least annually by our Board of Directors
or by a vote of a majority of the outstanding voting securities (as defined in
the Act) of such portfolio, and, in either case, by a vote, cast in person at a
meeting called for the purpose of voting on such approval, of a majority of our
Directors who are not parties to this Agreement or interested
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persons, as defined in the Act, of any party to this Agreement (other than as
our Directors), and provided further, however, that if the continuation of this
Agreement is not approved as to a portfolio, you may continue to render to such
portfolio the services described herein in the manner and to the extent
permitted by the Act and the rules and regulations thereunder. Upon the
effectiveness of this Agreement, it shall supersede all previous agreements
between us covering the subject matter hereof. This Agreement may be terminated
with respect any portfolio at any time, without the payment of any penalty, by
vote of a majority of the outstanding voting securities (as defined in the Act)
of such portfolio, or by a vote of our Board of Directors on 60 days' written
notice to you, or by you with respect any portfolio on 60 days' written notice
to us.
7. This Agreement shall not be amended as to the any portfolio unless
such amendment is approved by vote, cast in person at a meeting called for the
purpose of voting on such approval, of a majority of our Directors who are not
parties to this Agreement or interested persons, as defined in the Act, of any
party to this Agreement (other than as our Directors), and, if required by law,
by vote of a majority of the outstanding voting securities (as defined in the
Act) of such portfolio. Shareholders of a portfolio not affected by any such
amendment shall have no right to participate in any such vote.
8. As to any particular portfolio, this Agreement may not be assigned
by you and, as to such portfolio, this Agreement shall terminate automatically
in the event of any
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assignment by you. The term "assignment" as used in this paragraph shall have
the meaning ascribed thereto by the Act and any regulations or interpretations
of the Commission thereunder.
9. (a) Except to the extent necessary to perform your obligations
hereunder, nothing herein shall be deemed to limit or restrict your right, or
the right of any of your employees, or any of the officers or directors of
Alliance Capital Management Corporation, your general partner, who may also be a
Director, officer or employee of ours, or persons otherwise affiliated with us
(within the meaning of the Act), to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other trust, corporation, firm, individual or association.
(b) You will notify us of any change in the general partners of your
partnership within a reasonable time after such change.
10. If you cease to act as our investment adviser, or, in any event,
if you so request in writing, we agree to take all necessary action to change
our name to a name not including the terms "Alliance" or "Xxxxxxxxx." You may
from time to time make available without charge to us for our use such marks or
symbols owned by you, including marks or symbols containing the term "Alliance"
or "Xxxxxxxxx" or any variation thereof, as you may consider appropriate. Any
such marks or symbols so made
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available will remain your property and you shall have the right, upon notice in
writing, to require us to cease the use of such xxxx or symbol at any time.
11. This Agreement shall be construed in accordance with the laws of
the State of New York, provided, however, that nothing herein shall be construed
as being inconsistent with the Act.
If the foregoing is in accordance with your understanding, will you
kindly so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
XXXXXXX X. XXXXXXXXX FUND II, INC.
By:
--------------------------------
Xxxxxx X. Xxxxxx, Xx.
Secretary
Agreed to and accepted
as of the date first set forth above.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its general
partner
By:
--------------------------------
Xxxx X. Xxxxxx
President
