Exhibit 4(a)
AMENDED AND RESTATED MANAGEMENT AGREEMENT
AGREEMENT made this 7th day of June, 2001, amending and restating
the agreement made the 21st day of October, 1998 which in turn amended
and restated the agreement made the 18th day of May, 1998, by and
between XXXXXXX XXXXX GLOBAL TECHNOLOGY FUND, INC., a Maryland
corporation (hereinafter referred to as the "Fund"), and XXXXXXX XXXXX
INVESTMENT MANAGERS, L.P., a Delaware limited partnership (hereinafter
referred to as the "Manager").
W I T N E S S E T H:
WHEREAS, the Fund is engaged in business as an open-end
investment company registered under the Investment Company Act of
1940, as amended (hereinafter referred to as the "Investment Company
Act"); and
WHEREAS, the Manager is engaged principally in rendering
management and investment advisory services and is registered as an
investment adviser under the Investment Advisers Act of 1940; and
WHEREAS, the Fund desires to retain the Manager to render
management and investment advisory services to the Fund in the manner
and on the terms hereinafter set forth; and
WHEREAS, the Manager is willing to provide management and
investment advisory services to the Fund on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and the
covenants hereinafter contained, the Fund and the Manager hereby agree
as follows:
ARTICLE I
Duties of the Manager
The Fund hereby employs the Manager to act as a manager and
investment adviser of the Fund and to furnish or arrange for
affiliates to furnish, the management and investment advisory services
described below, subject to policies of, review by and overall control
of the Board of Directors of the Fund (the "Directors"), for the
period and on the terms and conditions set forth in this Amended and
Restated Agreement. The Manager hereby accepts such employment and
agrees during such period, at its own expense, to render, or arrange
for the rendering of, such services and to assume the obligations
herein set forth for the compensation provided for herein. The Manager
and its affiliates shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided
or authorized, have no authority to act for or represent the Fund in
any way or otherwise be deemed an agent of the Fund.
(a) Management and Administrative Services. The Manager shall
perform (or arrange for the performance by affiliates of) the
management and administrative services necessary for
the operation of the Fund including administering shareholder accounts
and handling shareholder relations. The Manager shall provide the Fund
with office space, equipment and facilities and such other services as
the Manager, subject to review by the Directors, shall from time to
time determine to be necessary or useful to perform its obligations
under this Amended and Restated Agreement. The Manager shall also, on
behalf of the Fund, conduct relations with custodians, depositories,
transfer agents, dividend disbursing agents, other shareholder service
agents, accountants, attorneys, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and such other persons in any
such other capacity deemed to be necessary or desirable. The Manager
shall generally monitor the Fund's compliance with investment policies
and restrictions as set forth in the currently effective prospectus
and statement of additional information relating to the shares of the
Fund under the Securities Act of 1933, as amended (the "Prospectus"
and "Statement of Additional Information," respectively). The Manager
shall make reports to the Directors of its performance of obligations
hereunder and furnish advice and recommendations with respect to such
other aspects of the business and affairs of the Fund as it shall
determine to be desirable.
(b) Investment Advisory Services. The Manager shall provide (or
arrange for affiliates to provide) the Fund with such investment
research, advice and supervision as the latter may from time to time
consider necessary for the proper supervision of the assets of the
Fund, shall furnish continuously an investment program for the Fund
and shall determine from time to time which securities shall be
purchased, sold or exchanged and what portion of the assets of the
Fund shall be held in the various securities in which the Fund
invests, options, futures, options on futures or cash, subject always
to the restrictions set forth in the Articles of Incorporation and
By-Laws of the Fund, as amended from time to time, the provisions of
the Investment Company Act and the statements relating to the Fund's
investment objectives, investment policies and investment restrictions
as the same are set forth in the Prospectus and Statement of
Additional Information. The Manager shall also make decisions for the
Fund as to the manner in which voting rights, rights to consent to
corporate action and any other rights pertaining to the Fund's
portfolio securities shall be exercised. Should the Directors at any
time, however, make any definite determination as to investment policy
and notify the Manager thereof in writing, the Manager shall be bound
by such determination for the period, if any, specified in such notice
or until similarly notified that such determination has been revoked.
The Manager shall take, on behalf of the Fund, all actions which it
deems necessary to implement the investment policies determined as
provided above, and in particular to place all orders for the purchase
or sale of portfolio securities for the Fund's account with brokers or
dealers selected by it, and to that end, the Manager is authorized as
the agent of the Fund to give instructions to the Custodian of the
Fund as to deliveries of securities and payments of cash for the
account of the Fund. In connection with the selection of such brokers
or dealers and the placing of such orders with respect to assets of
the Fund, the Manager is directed at all times to seek to obtain
execution and price within the policy guidelines determined by the
Directors as set forth in the Prospectus and Statement of Additional
Information. Subject to this requirement and the provisions of the
Investment Company Act, the Securities Exchange Act of 1934, as
amended, and other applicable provisions of law, the Manager may
select brokers or dealers with which it or the Fund is affiliated.
(c) Notice Upon Change in Partners of Manager. The Manager is a
limited partnership, its limited partner is Xxxxxxx Xxxxx & Co., Inc.
and its general partner is Princeton
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Services, Inc. The Manager will notify the Fund of any change in the
membership of the partnership within a reasonable time after such
change.
ARTICLE II
Allocation of Charges and Expenses
(a) The Manager. The Manager assumes and shall pay for
maintaining the staff and personnel necessary to perform its
obligations under this Agreement, and shall at its own expense,
provide the office space, equipment and facilities which it is
obligated to provide under Article I hereof, and shall pay all
compensation of officers of the Fund and all Directors who are
affiliated persons of the Manager.
(b) The Fund. The Fund assumes and shall pay or cause to be paid
all other expenses of the Fund (except for the expenses paid by the
Distributor), including, without limitation: redemption expenses,
expenses of portfolio transactions, expenses of registering shares
under federal and state securities laws, pricing costs (including the
daily calculation of net asset value), expenses of printing
shareholder reports, stock certificates, prospectuses and statements
of additional information, Securities and Exchange Commission fees,
interest, taxes, custodian and transfer agency fees, fees and actual
out-of-pocket expenses of Directors who are not affiliated persons of
the Manager, fees for legal and auditing services, litigation
expenses, costs of printing proxies and other expenses related to
shareholder meetings, and other expenses properly payable by the Fund.
It is also understood that the Fund will reimburse the Manager for its
costs in providing accounting services to the Fund. The Distributor
will pay certain of the expenses of the Fund incurred in connection
with the continuous offering of Fund shares.
ARTICLE III
Compensation of the Manager
Management Fee. For the services rendered, the facilities
furnished and expenses assumed by the Manager, the Fund shall pay to
the Manager at the end of each calendar month a fee based upon the
average daily value of the net assets of the Fund, as determined and
computed in accordance with the description of the determination of
net asset value contained in the Prospectus and Statement of
Additional Information, at the annual rate of 1.0% of the average
daily net assets of the Fund not exceeding $1.0 billion, 0.95% of the
average daily net assets of the Fund in excess of $1.0 billion but not
exceeding $2.0 billion and 0.90% of the average daily net assets of
the Fund in excess of $2.0 billion, commencing on the day following
the date hereof. If this Amended and Restated Agreement becomes
effective subsequent to the first day of a month or shall terminate
before the last day of a month, compensation for that part of the
month this Amended and Restated Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fee as set
forth above. During any period when the determination of net asset
value is suspended by the Directors, the net asset value of a share as
of the last business day prior to such suspension shall for this
purpose be deemed to be the net asset value at the close of each
succeeding business day until it is again determined.
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ARTICLE IV
Sub-Advisory Agreement
The Manager may enter into a separate sub-advisory agreement
with Xxxxxxx Xxxxx Asset Management U.K. Limited ("MLAM U.K.") in
which the Manager may contract for sub-advisory services and pay MLAM
U.K. compensation for its services out of the compensation received
hereunder pursuant to Article III. Such sub-advisory agreement will be
coterminous with this Management Agreement.
ARTICLE V
Limitation of Liability of the Manager
The Manager shall not be liable for any error of judgment or
mistake of law or for any loss arising out of any investment or for
any act or omission in the management of the Fund, except for willful
misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and
duties hereunder. As used in this Article V, the term "Manager" shall
include any affiliates of the Manager performing services for the Fund
contemplated hereby and directors, officers and employees of the
Manager and such affiliates.
ARTICLE VI
Activities of the Manager
The services of the Manager to the Fund are not to be deemed to
be exclusive, and the Manager and any person controlled by or under
common control with the Manager (for purposes of Article VI referred
to as "affiliates") is free to render services to others. It is
understood that Directors, officers, employees and shareholders of the
Fund are or may become interested in the Manager and its affiliates,
as directors, officers, employees and shareholders or otherwise and
that directors, officers, employees and shareholders of the Manager
and its affiliates are or may become similarly interested in the Fund,
and that the Manager and directors, officers, employees, partners and
shareholders of its affiliates may become interested in the Fund as
shareholder or otherwise.
ARTICLE VII
Duration and Termination of this Contract
This Amended and Restated Agreement shall become effective as of
the date hereof and shall remain in force thereafter, so long as such
continuance is specifically approved at least annually by (i) the
Board of Directors of the Fund, or by the vote of a majority of the
outstanding voting securities of the Fund, and (ii) by the vote of a
majority of those Directors who are not parties to this Amended and
Restated Agreement or interested persons of any such party cast in
person at a meeting called for the purpose of voting on such approval.
This Amended and Restated Agreement may be terminated at any
time, without the payment of any penalty, by the Board of Directors of
the Fund or by vote of a majority of the outstanding voting securities
of the Fund, or by the Manager, on sixty days' written notice to the
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other party. This Amended and Restated Agreement shall automatically
terminate in the event of its assignment.
ARTICLE VIII
Amendments of this Amended and Restated Agreement
This Amended and Restated Agreement may be amended by the
parties only if such amendment is specifically approved by (i) the
vote of a majority of outstanding voting securities of the Fund, and
(ii) a majority of those Directors who are not parties to this Amended
and Restated Agreement or interested persons of any such party cast in
person at a meeting called for the purpose of voting on such approval.
ARTICLE IX
Definitions of Certain Terms
The terms "vote of a majority of the outstanding voting
securities," "assignment," "affiliated person" and "interested
person," when used in this Amended and Restated Agreement, shall have
the respective meanings specified in the Investment Company Act and
the Rules and Regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission
under the Investment Company Act.
ARTICLE X
Governing Law
This Amended and Restated Agreement shall be construed in
accordance with laws of the State of New York and the applicable
provisions of the Investment Company Act. To the extent that the
applicable laws of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amended and Restated Agreement as of the day and year
first above written.
XXXXXXX XXXXX GLOBAL TECHNOLOGY FUND, INC.
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
XXXXXXX XXXXX INVESTMENT MANAGERS, L.P.
By PRINCETON SERVICES, INC., GENERAL PARTNER
By /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
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