EX-99.B(d)selima
INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT, originally made as of the 15th day of November, 2000, by
and between Xxxxxxx & Xxxx Advisors Value Fund, Inc. and Xxxxxxx & Xxxx
Investment Management Company, is hereby amended and restated as of May 21,
2003 by and between Xxxxxxx & Xxxx Advisors Select Funds, Inc. (f/k/a
Xxxxxxx & Xxxx Advisors Value Fund, Inc.) ("Corporation"), a Maryland
Corporation and Xxxxxxx & Xxxx Investment Management Company, a Missouri
Corporation (hereinafter called "Manager"),
WITNESSETH:
In consideration of the mutual promises and agreements herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, it is hereby agreed by and between the parties hereto as
follows:
I. In General
The Manager agrees to act as investment adviser to each series of the
Corporation (each a "Fund") with respect to the investment of its assets
and in general to supervise the investments of each Fund, subject at all
times to the direction and control of the Board of Directors of the
Corporation, all as more fully set forth herein.
II. Duties of the Manager with respect to investment of assets of the
Corporation
A. The Manager shall regularly provide investment advice to each Fund
and shall, subject to the succeeding provisions of this section,
continuously supervise the investment and reinvestment of cash, securities
or other property comprising the assets of the investment portfolios of
each Fund; and in furtherance thereof, the Manager shall:
1. obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data, domestic,
foreign or otherwise, whether affecting the economy generally or one or
more of the portfolios of the Funds, and whether concerning the individual
companies whose securities are included in the Funds' portfolios or the
industries in which they engage, or with respect to securities which the
Manager considers desirable for inclusion in the Funds' portfolios;
2. furnish continuously an investment program for each of the
portfolios of the Funds;
3. determine what securities shall be purchased or sold by each Fund;
4. take, on behalf of each Fund, all actions which appear to the
Manager necessary to carry into effect such investment programs and
supervisory functions as aforesaid, including the placing of purchase and
sell orders.
B. The Manager shall make appropriate and regular reports to the Board
of Directors of the Corporation on the actions it takes pursuant to Section
II.A. above. Any investment programs furnished by the Manager under this
section, or any supervisory function taken hereunder by the Manager shall
at all times conform to and be in accordance with any requirements imposed
by:
1. the provisions of the Investment Company Act of 1940, as amended
(1940 Act), and any rules or regulations in force thereunder;
2. any other applicable provision of law;
3. the provisions of the Articles of Incorporation of the Corporation
as amended from time to time;
4. the provisions of the Bylaws of the Corporation as amended from
time to time;
5. the terms of the registration statements of the Corporation, as
amended from time to time, under the Securities Act of 1933 and the 1940
Act.
C. Any investment programs furnished by the Manager under this section
or any supervisory functions taken hereunder by the Manager shall at all
times be subject to any directions of the Board of Directors of the
Corporation, its Executive Committee, or any committee or officer of the
Corporation acting pursuant to authority given by the Board of Directors.
III. Allocation of Expenses
The expenses of the Corporation and the expenses of the Manager in
performing its functions under this Agreement shall be divided into two
classes, to wit: (i) those expenses which will be paid in full by the
Manager as set forth in subparagraph "A" hereof, and (ii) those expenses
which will be paid in full by each Fund, as set forth in subparagraph "B"
hereof.
A. With respect to the duties of the Manager under Section II above,
it shall pay in full, except as to the brokerage and research services
acquired through the allocation of commissions as provided in Section IV
hereinafter, for (a) the salaries and employment benefits of all employees
of the Manager who are engaged in providing these advisory services; (b)
adequate office space and suitable office equipment for such employees; and
(c) all telephone and communications costs relating to such functions. In
addition, the Manager shall pay the fees and expenses of all directors of
the Corporation who are employees of the Manager or an affiliated
corporation and the salaries and employment benefits of all officers of the
Corporation who are affiliated persons of the Manager.
B. The Funds shall pay in full for all of their respective expenses
which are not listed above (other than those assumed by the Manager or its
affiliates in their respective capacities as principal underwriter of the
shares of each of the Funds, as Shareholder Servicing Agent or as
Accounting Services Agent for Funds), including (a) the costs of preparing
and printing prospectuses and reports to shareholders of the Funds
including mailing costs; (b) the costs of printing all proxy statements and
all other costs and expenses of meetings of shareholders of the Funds
(unless the Corporation and the Manager shall otherwise agree); (c)
interest, taxes, brokerage commission and premiums on fidelity and other
insurance; (d) audit fees and expenses of independent accountants and legal
fees and expenses of attorneys, but not of attorneys who are employees of
the Manager or an affiliated company; (e) fees and expenses of its
directors not affiliated with the Manager or its affiliates; (f) custodian
fees and expenses; (g) fees payable by the Corporation and/or the Funds
under the Securities Act of 1933, the 1940 Act and the securities or "Blue-
Sky" laws of any jurisdiction; (h) fees and assessments of the Investment
Company Institute or any successor organization; (i) such nonrecurring or
extraordinary expenses as may arise, including litigation affecting the
Corporation and/or the Funds and any indemnification by the Corporation of
its officers, directors, employees and agents with respect thereto; (j) the
costs and expenses provided for in any Shareholder Servicing Agreement or
Accounting Services Agreement, including amendments thereto, contemplated
by subsection C of this Section III. In the event that any of the foregoing
shall, in the first instance, be paid by the Manager, a Fund shall pay the
same to the Manager on presentation of a statement with respect thereto.
C. The Manager, or an affiliate of the Manager, may also act as (i)
transfer agent or shareholder servicing agent of each Fund of the
Corporation and/or as (ii) accounting services agent of each Fund of the
Corporation if at the time in question there is a separate agreement,
"Shareholder Servicing Agreement" and/or "Accounting Services Agreement,"
covering such functions between the Corporation and the Manager or such
affiliate. The corporation, whether the Manager or its affiliate, which is
the party to such Agreement with the Corporation is referred to as the
"Agent." Each such Agreement shall provide in substance that it shall not
go into effect, or may be amended, or a new agreement covering the same
topics between the Corporation and the Agent may be entered into only if
the terms of such Agreement, such amendment or such new agreement have been
approved by the Board of Directors of the Corporation , including the vote
of a majority of the directors who are not "interested persons" as defined
in the 1940 Act, of either party to the Agreement, such amendment or such
new agreement (considering the Manager to be such a party even if at the
time in question the Agent is an affiliate of the Manager), cast in person
at a meeting called for the purpose of voting on such approval. Such a vote
is referred to as a "disinterested director" vote. Each such Agreement
shall also provide in substance for its continuance, unless terminated, for
a specified period which shall not exceed two years from the date of its
execution and from year to year thereafter only if such continuance is
specifically approved at least annually by a disinterested director vote,
and that any disinterested director vote shall include a determination that
(i) the Agreement, amendment, new agreement or continuance in question is
in the best interests of each Fund and its shareholders; (ii) the services
to be performed under the Agreement, the Agreement as amended, new
agreement or agreement to be continued are services required for the
operation of each Fund; (iii) the Agent can provide services the nature and
quality of which are at least equal to those provided by others offering
the same or similar services; and (iv) the fees for such services are fair
and reasonable in light of the usual and customary charges made by others
for services of the same nature and quality. Any such Agreement may also
provide in substance that any disinterested director vote may be
conditioned on the favorable vote of the holders of a majority (as defined
in or under the 0000 Xxx) of the outstanding shares of each class or series
of the Corporation . Any such Agreement shall also provide in substance
that it may be terminated by the Agent at any time without penalty upon
giving the Corporation one hundred twenty (120) days' written notice
(which notice may be waived by the Corporation ) and may be terminated by
the Corporation at any time without penalty upon giving the Agent sixty
(60) days' written notice (which notice may be waived by the Agent),
provided that such termination by the Corporation shall be directed or
approved by the vote of a majority of the Board of Directors of the
Corporation in office at the time or by the vote of the holders of a
majority (as defined in or under the 0000 Xxx) of the outstanding shares of
each class or series of the Corporation .
IV. Brokerage
(a) The Manager may select brokers to effect the portfolio
transactions of each Fund on the basis of its estimate of their ability to
obtain, for reasonable and competitive commissions, the best execution of
particular and related portfolio transactions. For this purpose, "best
execution" means prompt and reliable execution at the most favorable price
obtainable. Such brokers may be selected on the basis of all relevant
factors including the execution capabilities required by the transaction or
transactions, the importance of speed, efficiency, or confidentiality, and
the willingness of the broker to provide useful or desirable investment
research and/or special execution services. The Manager shall have no duty
to seek advance competitive commission bids and may select brokers based
solely on its current knowledge of prevailing commission rates.
(b) Subject to the foregoing, the Manager shall have discretion, in
the interest of the Funds, to direct the execution of its portfolio
transactions to brokers who provide brokerage and/or research services (as
such services are defined in Section 28(e) of the Securities Exchange Act
of 1934) for the Funds and/or other accounts for which the Manager or one
or more of its affiliates exercise "investment discretion" (as that term is
defined in Section 3(a)(35) of the Securities Exchange Act of 1934); and in
connection with such transactions, to pay commission in excess of the
amount another adequately qualified broker would have charged if the
Manager determines, in good faith, that such commission is reasonable in
relation to the value of the brokerage and/or research services provided by
such broker, viewed in terms of either that particular transaction or the
overall responsibilities of the Manager and its investment advisory
affiliates with respect to the accounts for which they exercise investment
discretion. In reaching such determination, the Manager will not be
required to attempt to place a specified dollar amount on the brokerage
and/or research services provided by such broker; provided that the Manager
shall be prepared to demonstrate that such determinations were made in good
faith, and that all commissions paid by the Funds over a representative
period selected by the Corporation's Board of Directors were reasonable in
relation to the benefits to the Funds.
(c) Subject to the foregoing provisions of this Paragraph "IV," the
Manager may also consider sales of insurance policies funded by each Fund's
shares and sales of shares of other investment companies distributed by
Xxxxxxx & Xxxx, Inc. or its affiliates, and portfolio valuation or pricing
services as a factor in the selection of brokers to execute brokerage and
principal portfolio transactions.
V. Compensation of the Manager
As compensation in full for services rendered and for the facilities
and personnel furnished under sections I, II, and IV of this Agreement,
each Fund of the Corporation will pay to the Manager for each day the fees
specified in Exhibit A hereto.
The amounts payable to the Manager shall be determined as of the close
of business each day; shall, except as set forth below, be based upon the
value of net assets computed in accordance with the Articles of
Incorporation of the Corporation ; and shall be paid in arrears whenever
requested by the Manager. In computing the value of the net assets of each
Fund, there shall be excluded the amount owed to the Fund with respect to
shares which have been sold but not yet paid to the Fund by the Manager.
Notwithstanding the foregoing, if the laws, regulations or policies of
any state in which shares of the Funds are qualified for sale limit the
operation and management expenses of the Funds, the Manager will refund to
the Funds the amount by which such expenses exceed the lowest of such state
limitations.
VI. Undertakings of the Manager; Liabilities
The Manager shall give to the Corporation the benefit of its best
judgment, efforts and facilities in rendering advisory services hereunder.
The Manager shall at all times be guided by and be subject to each
Fund's investment policies, the provisions of the Corporation's Articles of
Incorporation and Bylaws as each shall from time to time be amended, and to
the decision and determination of the Corporation 's Board of Directors.
This Agreement shall be performed in accordance with the requirements
of the 1940 Act, the Investment Advisers Act of 1940, the Securities Act of
1933, and the Securities Exchange Act of 1934, to the extent that the
subject matter of this Agreement is within the purview of such Acts.
Insofar as applicable to the Manager as an investment adviser and
affiliated person of the Corporation , the Manager shall comply with the
provisions of the 1940 Act, the Investment Advisers Act of 1940 and the
respective rules and regulations of the Securities and Exchange Commission
thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of the
Manager it shall not be subject to liability to the Corporation or to any
stockholder of the Funds (direct or beneficial) for any act or omission in
the course of or connected with rendering services thereunder or for any
losses that may be sustained in the purchase, holding or sale of any
security.
VII. Duration of this Agreement
This Agreement shall become effective at the start of business on the
date hereof and shall continue in effect, unless terminated as hereinafter
provided, for a period of one year and from year-to-year thereafter only if
such continuance is specifically approved at least annually by the Board of
Directors, including the vote of a majority of the directors who are not
parties to this Agreement or "interested persons" (as defined in the 0000
Xxx) of any such party, cast in person at a meeting called for the purpose
of voting on such approval, or by the vote of the holders of a majority (as
so defined) of the outstanding voting securities of each class or series of
the Corporation and by the vote of a majority of the directors who are not
parties to this Agreement or "interested persons" (as so defined) of any
such party, cast in person at a meeting called for the purpose of voting on
such approval.
VIII. Termination
This Agreement may be terminated by the Manager at any time without
penalty upon giving the Corporation one hundred twenty (120) days' written
notice (which notice may be waived by the Corporation ) and may be
terminated by the Corporation at any time without penalty upon giving the
Manager sixty (60) days' written notice (which notice may be waived by the
Manager), provided that such termination by the Corporation shall be
directed or approved by the vote of a majority of the Board of Directors of
the Corporation in office at the time or by the vote of a majority (as
defined in the 0000 Xxx) of the outstanding voting securities of the
Corporation. This Agreement shall automatically terminate in the event of
its assignment, the term "assignment" for this purpose having the meaning
defined in Section 2(a)(4) of the 1940 Act and the rules and regulations
thereunder.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their corporate seal
to be hereunto affixed, all as of the day and year first above written.
(Seal) XXXXXXX & XXXX ADVISORS
SELECT FUNDS, INC.
By: __________________________________
Xxxxxx X. Xxxxxxx
Vice President
Attest:
_______________________________
Xxxxxxx X. Xxxxxxxx, Secretary
(Seal) XXXXXXX & XXXX INVESTMENT
MANAGEMENT COMPANY
By: __________________________________
Xxxxx X. Xxxxxxxx
President
Attest:
_____________________________
Xxxxxx X. Xxxxxxx, Secretary
EXHIBIT A TO INVESTMENT MANAGEMENT AGREEMENT
XXXXXXX & XXXX ADVISORS SELECT FUNDS, INC.
FEE SCHEDULE
A cash fee computed each day on net asset value for each Fund at the annual
rates listed below:
Dividend Income Fund
Net Assets Fee*
Up to $1 billion 0.70% of net assets
Over $1 billion and up to $2 billion 0.65% of net assets
Over $2 billion and up to $3 billion 0.60% of net assets
Over $3 billion 0.55% of net assets
Value Fund
Net Assets Fee*
Up to $1 billion 0.70% of net assets
Over $1 billion and up to $2 billion 0.65% of net assets
Over $2 billion and up to $3 billion 0.60% of net assets
Over $3 billion 0.55% of net assets
*If the Fund's net assets are less than $25 million, Xxxxxxx & Xxxx
Investment Management Company has agreed to waive the management fee,
subject to its right to change or modify this waiver.
Effective May 21, 2003.
