EXHIBIT 5.(b)
Amended and Restated
Management and Investment Advisory Agreement
Dated February 4, 2003--Value Portfolio
EXHIBIT 99.5(b)
MANAGEMENT AND
INVESTMENT ADVISORY AGREEMENT
This amended and restated Agreement dated February 4, 2003 amends and
restates the Agreement dated April 1, 2001 between XXXXX SERIES FUND, INC., a
Minnesota corporation (hereinafter called "Fund") and XXXXXXX X. XXXXX &
COMPANY, a Nebraska corporation (hereinafter called "Adviser");
In consideration of the mutual covenants herein contained, the parties
hereto agree as follows:
1. APPOINTMENT OF INVESTMENT ADVISER
The Fund hereby appoints the Adviser to manage the investment and
reinvestment of assets of the Value Portfolio (the "Portfolio") and to
administer its affairs, subject to the supervision of the Board of Directors of
the Fund for the period and on the terms set forth herein. The Adviser hereby
accepts such appointment and agrees during such period, at its own expense, to
render the services and to assume the obligations herein set forth, for the
compensation herein provided. The Adviser shall not be liable to the Fund for
any act or omission by the Adviser or for any losses sustained by the Fund or
its shareholders except in the case of willful misfeasance, bad faith, gross
negligence or reckless disregard of duty. The federal and state securities laws
and other laws may impose liability under certain circumstances on persons who
act in good faith, and therefore, nothing in this Agreement will waive or limit
any rights the client may have under such laws.
2. DUTIES AND EXPENSES OF ADVISER AND FUND
(a) The Fund shall, at all times, inform Adviser as to the securities held
by it, the funds available or to become available for investment by it, and
otherwise as to the condition of its affairs.
(b) Adviser shall furnish to the Fund, at the regular executive offices of
the Fund, advice and recommendations with respect to the purchase and sale of
securities and investments and the making
of commitments; shall place at the disposal of the Fund such statistical,
research, analytical and technical services, information and reports as may
reasonably be required; shall furnish the Fund with office facilities in the
offices of the Adviser, including space, furniture and equipment and supplies;
and with administrative, clerical and bookkeeping personnel; and in general
shall superintend the affairs of the Fund, subject to the supervision of the
Board of Directors of the Fund. The Adviser shall also pay or reimburse the Fund
for the compensation, if any, of the officers of the Fund.
The officers of the Fund or the Adviser shall use their best efforts to
obtain the most favorable execution available from brokers or dealers in
purchasing and selling securities. In so doing, such officers may consider such
factors which they may deem relevant to the Fund's best interest, such as price,
the size of the transaction, the nature of the market for the security, the
amount of commission, the timing of the transaction taking into account market
prices and trends, the reputation, experience, and financial stability of the
broker-dealer involved and the quality of service rendered by the broker-dealer
in other transactions. Subject to the foregoing considerations, at the Fund's
expense, such officers may place orders for the purchase or sale of portfolio
securities with brokers or dealers who have provided research, statistical or
other financial information and services to the Fund or the Adviser. Such
officers shall have discretionary authority to utilize broker-dealers who have
provided brokerage and research information of the type or nature referred to in
Section 28(e) of the Securities Exchange Act of 1934 to the Fund or the Adviser
even though it may result in the payment by the Fund of an amount of commission
for effecting a securities transaction in excess of the amount of commission
another broker-dealer would have charged for effecting that transaction,
providing, however, that the Fund officers have determined in good faith that
such amount of commission was reasonable in relation to the value of the
brokerage and research services
2
provided by the broker-dealer effecting the transactions, viewed in terms of
either that particular transaction or their responsibilities with respect to the
accounts for which said officers exercise investment discretion.
(c) Except as otherwise expressly provided herein, the Fund shall pay the
following items:
(1) the charges and expenses of any custodian or depository appointed
by the Fund for the safekeeping of its cash, securities and other property;
(2) the charges and expenses of auditors for the Fund;
(3) the charges and expenses of any transfer agents and registrars
appointed by the Fund;
(4) broker's commissions and issue and transfer taxes chargeable to
the Fund in connection with securities transactions to which the Fund is a
party;
(5) all taxes and corporate fees payable by the Fund to federal,
state or other governmental agencies;
(6) the cost of stock certificates representing shares of the Fund;
(7) compensation of the directors of the Fund (other than directors
who are officers of the Adviser), and all expenses of Fund shareholders'
and directors' meetings and of preparing, printing and mailing reports to
shareholders of the Fund;
(8) charges and expenses of legal counsel for the Fund in connection
with legal matters relating to the Fund, including without limitation,
legal services rendered in connection with the Fund's corporate existence,
corporate and financial structure, relations with its stockholders and the
issuance of securities; and
(9) all other costs, charges and expenses of the Fund, without
limitation.
3
3. FEES OF ADVISER
For the services and facilities to be furnished by the Adviser hereunder,
the Fund shall pay Adviser an annual fee, paid monthly, equal to the following
percentage based on the average daily net assets of the Fund:
EQUAL TO OR
GREATER THAN LESS THAN RATE
--------------- --------------- -----
$ 0 $ 2,500,000,000 1.00%
2,500,000,000 5,000,000,000 0.90%
5,000,000,000 0.80%
The compensation for the period from the effective date hereof to the next
succeeding last day of the month shall be prorated according to the proportion
which such period bears to the full month ending on such date, and provided
further that, upon any termination of this Agreement before the end of any
month, such compensation for the period from the end of the last month ending
prior to such termination to the date of termination, shall be prorated
according to the proportion which such period bears to a full month, and shall
be payable upon the date of termination. For the purpose of the Adviser's
compensation, the value of the Fund's net assets shall be computed in the manner
specified in its Articles of Incorporation or By-Laws in connection with the
determination of the net asset value of its shares.
4. INDEPENDENT CONTRACTOR
Adviser shall, for all purposes herein, be an independent contractor and
shall have no authority to act for or represent the Fund in its investment
commitments unless otherwise provided. No agreement, bid, offer, commitment,
contract or other engagement entered into by Adviser whether on behalf of
Adviser or whether purported to have been entered into on behalf of the Fund
shall be binding upon the Fund, and all acts authorized to be done by Adviser
under this Agreement shall be done by it as an independent contractor and not as
agent.
4
5. NON-EXCLUSIVE SERVICES OF ADVISER
Except to the extent necessary for performance of Adviser's obligations
hereunder, nothing shall restrict the right of Adviser or any of its directors,
officers, or employees who may be directors, officers or employees of the Fund
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 corporation,
firm, individual or association. The services of the Adviser to the Fund
hereunder are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others so long as its services hereunder be not
impaired thereby.
6. EFFECTIVE PERIOD AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective on the effective date of the first
public offering of the Fund's shares, and shall continue in effect if approved
annually in accordance with the provisions of the Investment Company Act of 1940
(the "1940 Act") and the regulations promulgated under the 1940 Act.
This Agreement may be terminated at any time, without payment of any
penalty, by the Board of Directors of the Fund, or by a vote of a majority of
the outstanding voting securities of the Fund, in either case upon not less than
sixty (60) days' written notice to Adviser, and it may be terminated by Adviser
upon sixty (60) days' written notice to the Fund.
7. ASSIGNMENT OF AGREEMENT PROHIBITED
This Agreement will automatically be terminated in the event of its
assignment. It may not be transferred, assigned, sold, or in any manner
hypothecated or pledged; nor may any new agreement become effective without the
affirmative vote of a majority of those directors of the Fund who are not
parties to such Agreement or interested persons of any such party, and ratified
by a vote of the majority of the outstanding voting securities of the Fund,
provided that this limitation shall not
5
prevent any minor amendments to the Agreement which may be required by federal
or state regulatory bodies.
8. INTERESTED PERSONS
It is understood that directors, officers, agents and stockholders of the
Fund are or may be interested in the Adviser (or any successor thereof) as
directors, officers, agents, stockholders or otherwise; that directors,
officers, agents, and stockholders of the Adviser are or may be interested in
the Fund as directors, officers, agents, stockholders or otherwise; and that the
Adviser (or any such successor) is or may be interested in the Fund as
stockholder or otherwise.
9. DEFINITIONS
For the purpose of the Agreement, the terms "vote of a majority of the
outstanding voting securities," "assignment," "affiliated person" and
"interested person" shall have the respective meanings specified in the
Investment Company Act of 1940 as now or hereafter in effect.
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their proper officers and their corporate seals to be hereunto
affixed, all as of the day and year first above written.
XXXXX SERIES FUND, INC.
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
President
Attest /s/ Xxxx X. Xxxxxxxx
---------------------------------
Secretary
XXXXXXX X. XXXXX & COMPANY
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
President
Attest /s/ Xxxx X. Xxxxxxxx
---------------------------------
Assistant Secretary
7
