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EXHIBIT 5 (i)
INVESTMENT ADVISORY AGREEMENT
This amended INVESTMENT ADVISORY AGREEMENT (the "Agreement") made as of
the 4th day of August, 1997, by and between MONY SERIES FUND, INC. (the "Fund"),
a Maryland corporation, and MONY LIFE INSURANCE COMPANY OF AMERICA (the
"Adviser"), an Arizona corporation.
W I T N E S S E T H:
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940;
WHEREAS, the Fund desires to retain the Adviser to render investment
management services to the Fund in the manner and on the terms and conditions
set forth herein;
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises set forth herein, the parties hereto agree as follows:
ARTICLE I
DUTIES OF THE ADVISER
The Fund hereby employs the Adviser to act as the investment adviser to
and manager of the Fund and, subject to the supervision of the Board of
Directors of the Fund (the "Board"), to manage the investment and reinvestment
of the assets of the Equity Income Portfolio, Long Term Bond Portfolio,
Intermediate Term Bond Portfolio, Equity Growth Portfolio, Money Market
Portfolio, Government Securities and Diversified Portfolio, as well as any other
portfolio that the Fund may create in the future if the Fund (at its option and
in its sole discretion) designates the Adviser to act as investment adviser and
manager for such new portfolio. The portfolios for which the Adviser acts as
investment adviser and manager under this Agreement are referred to in this
Agreement as the "Portfolios". The Adviser hereby accepts such employment and
agrees during such period, at its own expense, to render the services and to
assume the obligations herein set forth for the compensation provided for
herein. Nothing in this Agreement shall be deemed to require the Fund to take
any action contrary to its Articles of Incorporation, By-Laws, or any applicable
statute or regulation, or to relieve the Fund's Board of Directors of its
responsibility for and control of the conduct of the affairs of the Fund. The
Adviser shall be deemed for all purposes under this Agreement to be an
independent contractor and shall, unless otherwise expressly authorized or
provided herein, have no authority to act for or represent the Fund in any way
or otherwise be deemed to be an agent of the Fund.
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1. Investment Management Services
Subject to the Board's direction and approval, the Adviser
shall at its own expense supervise and manage the investment and
reinvestment of the assets of the Portfolios and shall determine the
composition of the assets of each of the Fund's Portfolios, including
the purchase, retention, or sale of the securities and cash contained
in those Portfolios. These duties shall be performed in accordance with
the 1940 Act and the investment objectives, policies and restrictions
applicable to each Portfolio as stated in (i) the Fund's current
Registration Statement and Prospectus filed with the Securities and
Exchange Commission, (ii) the Fund's Articles of Incorporation and
By-Laws, as amended from time to time, and (iii) resolutions adopted by
the Board.
The Adviser shall at its own expense provide investment
research and conduct a continuous program of evaluation, investment,
sales, and reinvestment of the Fund's assets by recommending which
securities should be purchased, sold or exchanged for each Portfolio,
when these transactions should be executed, and what portion of the
assets of each Portfolio should be held in the various securities in
which it may invest. The Adviser will determine the daily net asset
value of the shares of capital stock related to each Portfolio of the
Fund as required by applicable law.
The Adviser shall exercise its best judgment in performing the
services described above.
2. Reports And Administration Services
a. Reports
Adviser shall at its own expense furnish the Fund
with statistical information and records concerning its
investments, and with such periodic or special reports as the
Fund's Board of Directors may from time to time reasonably
request, or as the Adviser may deem helpful to the Fund in the
administration of its Portfolios. In addition, the Adviser
shall at its own expense preserve for the period prescribed by
the rules and regulations of the Securities and Exchange
Commission all such records required to be maintained under
such rules and regulations. The Adviser shall at its own
expense furnish applicable federal and state regulatory
authorities with any information or reports in connection with
its services under this Agreement which such authorities may
request.
All records maintained by the Adviser in connection
with this Agreement shall be the property of the Fund and
shall be returned to the Fund upon termination of this
Agreement, free from any claims or retention of rights by the
Adviser. The Adviser shall keep confidential any information
obtained pursuant to this Agreement and shall disclose such
information only if the Fund has authorized such disclosure,
or if such disclosure is expressly required by applicable
federal or state regulatory authorities.
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b. Administrative Services
The Adviser shall at its own expense also perform
administrative services for the Fund. Such services shall
include, without limitation, (i) supervising all aspects of
the Fund's operation, including coordinating matters relating
to the custodians of securities owned by the Fund, the
transfer agent, shareholder service agents, accountants,
attorneys, and other parties performing services or
operational functions for the Fund, (ii) providing personnel
to the Fund to perform necessary administrative functions, and
(iii) providing the Fund with adequate and appropriate office
space, facilities, equipment and related services necessary
for the Fund's operations. Nothing contained herein shall
restrict the Fund's ability to hire its own employees or to
contract for services to be performed by third parties.
3. Services Agreement
It is contemplated that contemporaneously with this Agreement
the Adviser will enter into a Services Agreement with The Mutual Life
Insurance Company of New York ("MONY") under which MONY would provide
to the Adviser some or all of the personnel, services, facilities,
supplies and equipment necessary for the Adviser to carry out its
obligations under this Agreement. It is recognized that said Services
Agreement will be deemed a sub-advisory agreement subject to the
pertinent provisions of the 1940 Act. No rights or obligations of the
Adviser under this Agreement shall be deemed to have been assigned or
otherwise transferred by virtue of said Services Agreement, and said
Services Agreement shall automatically terminate upon its assignment by
either party thereto.
ARTICLE II
PORTFOLIO TRANSACTIONS AND BROKERAGE
Subject to the limitation of Article I, the Adviser shall determine all
securities to be bought or sold for each Portfolio, and shall be responsible for
the selection of brokers or dealers to effect all transactions. The Adviser
shall place all necessary orders with brokers, dealers, or issuers, and shall
negotiate brokerage commissions, if applicable. In placing orders for securities
transactions, the Adviser shall attempt to obtain the best net price and most
favorable execution. The Adviser will seek to effect each transaction at a price
and commission, if any, that provides the most favorable total cost or proceeds
reasonably attainable in the circumstances. The Adviser may, however, pay a
higher spread or commission than otherwise would be necessary for a particular
transaction if that would further the goal of obtaining the best available
execution.
For those securities transactions that involve commission payments, the
Adviser will negotiate the commission on the basis of the quality and quantity
of execution services provided by the broker, in light of generally prevailing
commission rates. It is the Adviser's present
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practice to use brokers selected primarily on the basis of their furnishing not
only satisfactory execution of the transaction but also research services such
as analyses and reports concerning issuers and industries, economic factors and
portfolio strategy. In some cases, this could cause the Fund to pay commissions
or spreads in excess of the amount which another broker would have charged for
effecting a similar transaction. In any such case, the Adviser shall determine
in good faith that the greater commission or spread is reasonable in relation to
the value of the services provided by the executing broker/dealer viewed in
terms of either the particular transaction or the Adviser's overall
responsibilities to all the Portfolios of the Fund and accounts under the
Adviser's management. No services other than brokerage, research and statistical
services are considered by the Adviser in determining the reasonableness and
amount of commissions or spreads to be paid to any broker/dealer. All such
services obtained from brokers benefit generally all the Portfolios and accounts
under the Adviser's management and are not identified in any specific Portfolio
or account and may also benefit other accounts under MONY's management. The Fund
agrees that MONY, or the Adviser, may use any such research or statistical
information that the Adviser obtains from brokers in providing investment
management or advice to their other clients and accounts.
In executing brokerage transactions, the Adviser may use a broker who
is an affiliated person of the Adviser (as that term is defined in the 1940
Act), only if the commission rate obtained from the affiliated broker is as
favorable as the broker's contemporaneous charges to its most favored
unaffiliated customers. Before employing an affiliated broker, Adviser must also
make the good faith judgment that the affiliated broker is qualified to obtain
the best price on the particular transaction and that the commission is at least
as favorable as that charged by other qualified, but unaffiliated, brokers.
ARTICLE III
ACTIVITIES OF THE ADVISER
The Fund understands that the Adviser and the sub-adviser, MONY, may
serve as investment manager or adviser to other investment companies and to
clients that are not investment companies. The Adviser may also perform similar
functions in managing its own assets, and MONY performs similar functions in
managing its own assets, the assets of its separate accounts, and the assets of
certain of its subsidiaries. The Fund understands that the employees of MONY who
will assist in the performance of services for the Adviser under the Services
Agreement referred to in Article I will also devote time to rendering similar
services to the other entities for which MONY also acts as investment manager or
adviser. When investment opportunities arise that may be appropriate for more
than one account, fund, or company for which MONY provides investment management
services, such Services Agreement shall provide that MONY will not favor one
over another and may allocate investments among them in an impartial manner
believed to be equitable to each entity involved. The allocations will be based
on each entity's investment objectives and its current cash and investment
positions. Because the various entities for which MONY provides investment
management services, including for its own account, have different investment
objectives and policies, MONY personnel acting on behalf of such entities may
from time to time buy a particular
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security of one or more such entities while at the same time selling such
securities for another entity.
ARTICLE IV
COMPENSATION OF THE ADVISER
1. Investment Management Fee
As compensation for the services and expenses of the Adviser
under this Agreement, the Fund shall pay to the Adviser an investment
management fee subject to the limitations of paragraph 3 of this
Article IV. For the Equity Income, Equity Growth, Diversified,
Intermediate Term Bond, Long Term Bond and Government Securities
Portfolios, this fee shall be a daily charge, payable at the end of
each calendar month, at an annual rate of .50 percent of the first $400
million of the average daily net assets of each Portfolio, .35 percent
of the next $400 million of the average daily net assets of each
Portfolio, and .30 percent of the average daily net assets of each
Portfolio in excess of $800 million. For the Money Market Portfolio,
this fee shall be a daily charge, payable at the end of each calendar
month, at an annual rate of .40 percent of the first $400 million of
the average daily net assets of the Portfolio, .35 percent of the next
$400 million of the average daily net assets of the Portfolio, and .30
percent of the average daily net assets of the Portfolio in excess of
$800 million. The daily charge for each Portfolio shall be based on the
average daily net assets of the applicable Fund's Portfolio, whether or
not the net assets of each Portfolio are valued on such day.
The manner of computing net asset value shall be determined by
the Board of Directors of the Fund.
2. Allocation of Expenses
The Adviser will bear only the following: (i) the expenses
(including legal and accounting expenses) for the organization of the
Fund, the Fund's initial registration under federal and state
securities laws, and the initial registration and qualification of the
Fund's capital stock for sale (including the printing of any
prospectuses or other materials in connection with the initial
registration or qualification); (ii) the expenses in rendering
investment advice and performing administrative and other services
under this Agreement (including any payment to MONY as agreed to in
connection with the Services Agreement); and (iii) the compensation of
directors, officers and employees of the Fund who are interested
persons (as defined in the 0000 Xxx) of the Adviser except solely
because of any of their position(s) with the Fund. The Adviser will not
be required to pay any expenses of the Fund other than those above
described in this paragraph 2.
Except as provided in paragraph 3 of this Article IV, the Fund
will bear all of its other expenses. Without limiting the generality of
the foregoing, the Adviser will not be
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required to pay (except with respect to the Fund's organization and
initial qualification and registration of its capital stock) for, and
the Fund will bear:
(a) legal, auditing or internal or external accounting
fees or expenses (not otherwise borne by the
Adviser);
(b) interest expense;
(c) brokerage fees and commissions;
(d) taxes or governmental fees;
(e) the cost of preparing share certificates or any other
direct expense of issue, sale, underwriting,
distribution, redemption or repurchase of shares of
the Fund;
(f) the cost of preparing and distributing reports and
notices to shareholders;
(g) the cost of holding the Fund's annual or special
shareholders' meetings and of any proxy solicitation
(including the printing of any proxy solicitations);
(h) the fees or disbursements of dividend disbursing,
plan, transfer or other agents;
(i) the fees or disbursements of custodians of the Fund's
assets;
(j) the compensation and expenses of all directors,
officers or employees of the fund who are not
interested persons (as defined in the 0000 Xxx) of
the Adviser without taking into consideration any of
their position(s) with the Fund;
(k) the cost of any fidelity bond for any officer, agent
or employee of the Fund required under the 1940 Act
or otherwise; and
(l) the cost of any directors and officers' insurance for
any directors or officers of the Fund.
In addition, the Fund will bear the cost of maintaining the
effectiveness of the Fund's registration and qualification of its
capital stock for sale (including the preparation, printing and mailing
of any prospectuses or other materials required by federal or state
authorities), it being contemplated that these expenses of the Fund
will be reimbursed to it by its principal underwriter pursuant to an
underwriting agreement for the Fund's shares.
The Fund will bear all of its extraordinary or non-recurring
expenses, including, but not limited to, (i) any expenses of the Fund
associated with legal claims or liabilities,
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and (ii) any expenses of the Fund associated with any litigation costs
or indemnification related to any legal claims or liabilities.
The Board shall determine the manner in which expenses shall
be allocated to the various Portfolios, and its determination shall be
final and binding.
3. Expense Reimbursement
The Adviser shall reimburse the Fund for the amount, if any,
by which the aggregate ordinary operating expenses of any Portfolio in
any calendar year exceed the most restrictive expense limitations then
in effect under state securities law or regulations. No investment
management fee payments shall be made to the Adviser with respect to
any Portfolio during any calendar year to the extent that such payments
would cause the expenses allocated to such Portfolio to exceed the
expense limitation applicable to such Portfolio at the time of payment.
ARTICLE V
LIMITATION ON LIABILITY OF THE ADVISER
The Adviser will not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund in connection with the investment
management services it performs under this Agreement, except for a loss
resulting from willful misfeasance, bad faith, or gross negligence or reckless
disregard in the performance of the duties or obligations under this Agreement
of the Adviser (or its officers, directors, agents, employees, controlling
persons, shareholders, or any other person or entity affiliated with the Adviser
or retained by it to perform or assist in the performance of its obligations
under this Agreement). With respect to the administrative services it is
obligated to perform under this Agreement, the Adviser will not be liable for
any action taken or omitted by it in good faith without negligence.
ARTICLE VI
NAME AND SERVICE MARKS
The Fund may use the name "MONY Series Fund, Inc." or any name derived
from the word "MONY" and the MONY service xxxx only for so long as this
Agreement or any extension, renewal or amendment hereof remains in effect. At
such time as such an agreement shall no longer be in effect, the Fund will (to
the extent lawful) cease to use such a name or any other name indicating that it
is advised by or otherwise connected with the Adviser or The Mutual Life
Insurance Company of New York ("MONY"), or any organization which shall so
succeed to the business of the Adviser.
The Adviser, on its own behalf and as agent for MONY pursuant to
express authority in the Services Agreement, hereby grants to the Fund
permission to use the word "MONY" in its
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corporate name and a license to use such other service marks as have been or may
in the future be adopted by MONY, which the Adviser and the Fund determine in
goods faith to be appropriate for use by the Fund in connection with its
operations as an investment company. This license is granted on a royalty-free,
non-exclusive basis. The Adviser and MONY retain the right to use, or license
the use of, the word "MONY" and any derivative thereof, as well as such service
marks of MONY, in connection with other investment companies, subject to the
requirements of the Investment Company Act of 1940, or in connection with any
other business enterprise.
The Fund acknowledges that the word "MONY" and the service marks of
MONY represent good will of great value to MONY and the Adviser and that MONY
and the Adviser must be able to protect and preserve such good will by
terminating the permission and license herein granted if MONY or the Adviser, in
its sole discretion, decides that it is necessary to do so or if MONY or the
Adviser decides that the Fund is no longer in a position to assure that high
quality standards will be associated with the use of the word "MONY" and the
service marks of MONY. Accordingly, if the holders of the outstanding voting
securities of the Fund or any class of voting securities of the Fund fail to
approve this Agreement and the Services Agreement, or if at any time after such
approval the Adviser or a company controlled by MONY ceases to be investment
adviser of the Fund, the Adviser (on its own or on behalf of MONY) shall have
the absolute right to terminate the license herein granted forthwith upon
written notice to the Fund. The Adviser (on its own or on behalf of MONY) shall
have the absolute right to terminate the license herein granted for any other
reason upon 60 days' written notice of such termination to the Fund, but in such
event this Agreement shall terminate on the 120th day following receipt by the
Fund of such notice unless on or prior to such day the holders of a majority of
the outstanding voting securities of each class of the Fund corresponding to a
Portfolio shall have voted in favor of the Adviser (or a company controlled by
MONY) continuing to act as investment adviser to the Fund in accordance with the
terms hereof notwithstanding the termination of the license herein granted. Upon
termination of the license herein granted, the Fund shall immediately change its
corporate name to one which does not include the word "MONY" or any derivative
hereof, and will discontinue all use by it of such word, the service marks or
anything resembling the service marks of MONY, in connection with its business.
The terms of the license herein granted shall inure to the benefit of and be
binding upon any successors or assigns of the Fund, Adviser, or MONY.
ARTICLE VII
LIMITATION ON PURCHASES OF CAPITAL STOCK OF THE FUND
The Adviser agrees that neither it nor any of its officers or directors
will take any long or short position in the capital stock of the Fund, but this
prohibition will not prevent the purchase by or for the Adviser or any of its
officers or directors of shares of the capital stock of the Fund at the price at
which such shares are available to the public at the moment of purchase,
provided that (i) such purchase be made for investment purposes only, and (ii)
if any shares of stock so purchased are resold within two months after the date
of purchase, such fact will immediately be
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reported to the Fund. In addition, this Article will not be construed to
prohibit either MONY or the Adviser from investing in the Fund in order to
provide "seed money" for the Portfolios.
ARTICLE VIII
DURATION AND TERMINATION OF THE AGREEMENT
This Agreement will continue in effect with respect to each Portfolio
of the Fund, whenever created until the date of the next meeting of shareholders
of the Fund following creation of the Portfolio, unless sooner terminated as
hereinafter provided. Therefore, if both this Agreement and the Services
Agreement referred to in Article I are approved by a majority vote of the
outstanding shares of capital stock of a Portfolio entitled to vote at such
meeting, this Agreement will continue in effect thereafter with respect to such
Portfolio so long as both this Agreement and said Services Agreement are
approved at least annually (i) by a majority of the non-interested directors (as
defined in the 0000 Xxx) of the Fund's Board of Directors, and (ii) by a
majority of the entire Board of Directors or a majority vote of the outstanding
shares of the capital stock of such Portfolio. The required shareholder approval
of this Agreement and said Services Agreement shall be effective with respect to
any Portfolio, if a majority of the outstanding shares of capital stock of such
Portfolio are voted to approve this Agreement and said Services Agreement,
notwithstanding that this Agreement or said Services Agreement (or both) may not
yet have been approved by a majority vote of the outstanding shares of the Fund.
If, with respect to any Portfolio, the shareholders are asked to vote
on this Agreement and a majority of the outstanding shares of capital stock of
such Portfolio fail to vote to approve this Agreement or said Services Agreement
(or both), this Agreement will terminate with respect to such Portfolio. If said
Services Agreement should be so terminated, this Agreement will automatically
terminate.
This Agreement may be terminated without payment of penalty (i) by the
Fund on at least 60 days' written notice to the Adviser, provided that such
termination be authorized by the Fund's Board of Directors or a majority vote of
the outstanding shares of capital stock of each Portfolio of the Fund as to
which the Adviser acts as investment adviser, (ii) by the fund, with respect to
any Portfolio, on at least 60 days' written notice to the Adviser, provided that
such termination be authorized by a majority vote of the outstanding shares of
the capital stock of such Portfolio, or (iii) by the Adviser on at least 90
days' written notice to the Fund.
This Agreement will terminate automatically in the event of its
assignment (as defined in the 1940 Act) by either party.
If this Agreement is terminated (except by virtue of assignment), in
whole or with respect to any Portfolio, and the Board of Directors of the Fund,
including a majority of the non-interested directors (as defined in the 1940
Act), so requests (and further requests that said Services Agreement similarly
continue), the Adviser will continue to act as investment adviser to the Fund or
any Portfolio thereof (as requested) for up to 120 days pending the required
approval of this Agreement or said Services Agreement (or both), approval of a
new contract with the
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Adviser or a different adviser, approval of a new services contract with MONY or
a different adviser, or other definitive action. During such continuance the
compensation received by the Adviser for acting as investment adviser to the
Fund or with respect to any such Portfolio(s) will be the lesser of (i) its
actual costs incurred in furnishing investment management services or (ii) the
amount it would have received under this Agreement with respect to any such
Portfolio(s) as to which it continues to provide advice.
This Agreement may not be amended, in whole or with respect to a
Portfolio, without the agreement thereto in writing by the Fund and the Adviser,
and approval for such amendment by (i) the Fund's Board of Directors or a
majority vote of the outstanding shares of the class of stock of such Portfolio,
and (ii) a majority of the non-interested directors (as defined in the 0000 Xxx)
of the Fund's Board of Directors.
ARTICLE IX
GOVERNING LAW
This Agreement is subject to, and is to be interpreted in accordance
with, the provisions of the 1940 Act, and the rules and regulations of the
Securities and Exchange Commission thereunder, and the laws of the State of New
York. As used with respect to the Fund or any of its portfolios, the term
"majority of the outstanding shares" means the lesser of (i) 67 percent of the
shares represented at a meeting at which more than 50 percent of the outstanding
shares are represented or (ii) more than 50 percent of the outstanding shares.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers, duly authorized, as of the day and year
first above written.
MONY LIFE INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxx X. Xxxx
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President
MONY SERIES FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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President
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