Exhibit 5(a)(v)
XXXXXXX FUND, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
January 18, 1993
Xxxxxxx, Xxxxxxx & Xxxxx, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Investment Advisory Agreement
Managed Intermediate Government Fund
Dear Sirs:
Xxxxxxx Fund, Inc. (the "Corporation") has been organized under the
laws of the State of Maryland to engage in the business of an investment
company. The shares of capital stock of the Corporation ("Shares") are divided
into multiple series, including Managed Intermediate Government Fund (the
"Fund"), as established from time to time by action of the Directors of the
Corporation. Series may be terminated, and additional series established, from
time to time by action of the Directors. The Corporation, on behalf of the Fund,
has selected you to act as the sole investment adviser of the Fund and to
provide certain other services, as more fully set forth below, and you are
willing to act as such investment adviser and to perform such services under the
terms and conditions hereinafter set forth. Accordingly, the Corporation agrees
with you as follows:
1. Delivery of Fund Documents. The Corporation has furnished you
with copies properly certified or authenticated of each of the following:
(a) Articles of Incorporation of the Corporation dated June 18,
1982, as amended from time to time (the "Articles");
(b) Appropriate evidence of the establishment of the Fund as a
series portfolio of the Corporation;
(c) By-Laws of the Corporation as in effect on the date hereof
(the "By-Laws");
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(d) Resolutions of the Directors of the Corporation selecting you
as investment adviser and approving the form of this
Agreement; and
(e) Properly certified or authenticated copies of the
Corporation's Registration Statement on Form N-1A filed by it
with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or the Investment Company
Act of 1940, as amended (the "Investment Company Act"),
together with any financial statements and exhibits included
therein.
The Corporation will furnish you from time to time with copies, properly
certified or authenticated, of all amendments of or supplements to the
foregoing, if any.
2. Name of Fund. The Fund may use any name derived from the name
"Xxxxxxx, Xxxxxxx & Xxxxx", if it elects to do so, only for so long as this
Agreement, any other Investment Advisory Agreement between you and the
Corporation or any extension, renewal or amendment hereof or thereof remains in
effect, including any similar agreement with any organization which shall have
succeeded to your business as investment adviser. At such time as such an
agreement shall no longer be in effect, the Fund will (to the extent that it
lawfully can) cease to use such a name or any other name indicating that it is
advised by or otherwise connected with you or any organization which shall have
so succeeded to your business.
3. Advisory Services. You will regularly provide the Fund with
investment research, advice and supervision and will furnish continuously an
investment program for the Fund consistent with the investment objective and
policies of the Fund. You will determine what securities shall be purchased for
the Fund, what securities shall be held or sold by the Fund and what portion of
the Fund's assets shall be held uninvested, subject always to the provisions of
the Corporation's Articles and By-Laws and of the Investment Company Act, and to
the investment objective, policies and restrictions of the Fund, as each of the
same shall be from time to time in effect, and subject, further, to such
policies and instructions as the Board of Directors may from time to time
establish. You shall advise and assist the officers of the Fund in taking such
steps as are necessary or appropriate to carry out the decisions of the Board of
Directors and the appropriate committees of the
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Board of Directors regarding the conduct of the business of the Fund.
4. Allocation of Charges and Expenses. You will pay the compensation
and expenses of all officers and executive employees of the Corporation who are
also employees or affiliates of you or your affiliates and will make available,
without expense to the Fund (except as otherwise provided below), the services
of such of your directors, officers and employees as are reasonably necessary
for the Fund's operations or as may duly be elected officers or directors of the
Corporation, subject to their individual consent to serve and to any limitations
imposed by law. You will pay the Fund's office rent and will provide investment
advisory research and statistical facilities and all clerical services relating
to research, statistical and investment work. You will not be required to pay
any expenses of the Fund other than those specifically allocated to you in this
paragraph 4. In particular, but without limiting the generality of the
foregoing, you will not be required to pay: organization expenses of the Fund;
clerical salaries; fees and expenses incurred by the Fund in connection with
membership in investment company organizations; brokerage and other expenses of
executing portfolio transactions; payment for portfolio pricing services to a
pricing agent, if any; legal, auditing or accounting expenses; trade association
dues; taxes or governmental fees; the fees and expenses of the transfer agent of
the Fund; the cost of preparing share certificates or any other expenses,
including clerical expenses of issue, redemption or repurchase of Shares of the
Fund; the expenses and fees for registering and qualifying securities for sale;
the fees and expenses of Directors of the Corporation who are not employees or
affiliates of you or your affiliates; travel expenses of all officers, directors
and employees; insurance premiums; the cost of preparing and distributing
reports and notices to shareholders; public and investor relations expenses or
the fees or disbursements of custodians of the Fund's assets, including expenses
incurred in the performance of any obligations enumerated by the Articles or
By-Laws insofar as they govern agreements with any such custodian. You shall not
be required to pay expenses of any activity which is primarily intended to
result in sales of Shares of the Fund if and to the extent that such expenses
(i) are required to be borne by a principal underwriter which acts as the
distributor of the Fund's Shares pursuant to an underwriting agreement which
provides that the underwriter shall assume some or all of such expenses, or (ii)
if the Corporation on behalf of the Fund shall have adopted a plan in conformity
with Rule 12b-1 under the Investment Company Act providing that the Fund (or
some other party) shall assume some or all of such expenses. You shall be
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required to pay such of the foregoing expenses as are not required to be paid by
the principal underwriter pursuant to the underwriting agreement or are not
permitted to be paid by the Fund (or some other party) pursuant to such a plan.
5. Compensation of the Adviser. For all services to be rendered and
payments made as provided in paragraphs 3 and 4 hereof, the Corporation on
behalf of the Fund will pay you on the last day of each month a gross fee which
is equal to the difference between (a) 1/12 of 0.65% of the value of the average
daily net assets of the Fund for such month and (b) the sum, not in excess of
the amount determined under (a), of the amount waived by you from time to time
plus the amount by which the Fund's expenses exceed the lowest applicable
expense limitation (as more fully described herein).
(a) The "value of the average daily net assets" of the Fund is
defined as the average of the values placed on the net assets of the Fund
as of the close of regular trading on the NYSE, which is currently 4:00
P.M. (New York time), on each day on which the net asset value of the Fund
is determined consistent with the provisions of Rule 22c-1 under the
Investment Company Act or, if the Fund lawfully determines the value of
the net assets of the Fund as of some other time on each business day, as
of such time. The value of the net assets of the Fund shall be determined
pursuant to the applicable provisions of the Articles. If, pursuant to
such provisions, the determination of the net asset value of the Fund is
suspended for any particular business day, then for the purposes of this
paragraph 5, the value of the net assets of the Fund as last determined
shall be deemed to be the value of the net assets of the Fund as of 4:00
P.M. or as of such other time as the value of the net assets of the Fund
may lawfully be determined, on that day. If the determination of the value
of the net assets of the Fund has been suspended pursuant to the Articles
for a period including such month, your compensation payable at the end of
such month shall be computed on the basis of the value of the net assets
of the Fund as last determined (whether during or prior to such month). If
the Fund determines the value of the net assets of its portfolio more than
once on any day, the last such determination thereof on that day shall be
deemed to be the sole determination thereof on that day for the purposes
of this paragraph 5.
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(b) You agree that in determining your gross compensation for any
fiscal year it shall be reduced by the amount, if any, by which the
expenses of the Fund for such fiscal year exceed the lowest applicable
expense limitation established pursuant to the statutes or regulations of
any jurisdiction in which the Shares of the Fund may be qualified for
offer and sale. You shall refund to the Fund the amount of any reduction
of your compensation pursuant to this paragraph 5 as promptly as
practicable after the end of such fiscal year, provided that you will not
be required to pay the Fund an amount greater than the fee paid to you in
respect of such year pursuant to this Agreement. As used in this paragraph
5, "expenses" shall mean those expenses included in the applicable expense
limitation having the broadest specifications thereof, and "expense
limitation" means a limit on the maximum annual expenses which may be
incurred by an investment company determined (i) by multiplying a fixed
percentage by the average, or by multiplying more than one such percentage
by different specified amounts of the average, of the values of an
investment company's net assets for a fiscal year or (ii) by multiplying a
fixed percentage by an investment company's net investment income for a
fiscal year. The words "lowest applicable expense limitation" shall be
construed to result in the largest reduction of your compensation for any
fiscal year of the Fund; provided, however, that nothing in this Agreement
shall require you to reduce your fees if not required by an applicable
statute or regulation referred to above in this paragraph 5.
(c) You may waive all or a portion of your fees provided for
hereunder. To the extent that you agree to waive all or a portion of your
fees or to reimburse a portion of the Fund's expenses, you shall be
contractually bound by the publicly announced waivers or reimbursements.
6. Avoidance of Inconsistent Position. In connection with purchases
or sales of portfolio securities for the account of the Fund, neither you nor
any of your directors, officers or employees will act as a principal or agent or
receive any commission. You or your agent shall arrange for the placing of all
orders for the purchase and sale of portfolio securities for the Fund's account
with brokers or dealers selected by you. In the selection of such brokers or
dealers and the placing of such orders, you
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are directed at all times to seek for the Fund the most favorable execution and
net price available. If any occasion should arise in which you give any advice
to clients of yours concerning the Shares of the Fund, you will act solely as
investment counsel for such clients and not in any way on behalf of the Fund.
Your services to the Fund pursuant to this Agreement are not to be deemed to be
exclusive and it is understood that you may render investment advice, management
and other services to others.
7. Limitation of Liability of Adviser. You shall give the Fund the
benefit of your best judgment and efforts in rendering services under this
Agreement. As an inducement to your undertaking to render these services, the
Fund agrees that you shall not be liable under this Agreement for any mistake in
judgment or in any other event whatsoever except for lack of good faith,
provided that nothing in this Agreement shall be deemed to protect or purport to
protect you against any liability to the Fund or its shareholders to which you
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your duties under this Agreement or by reason
of your reckless disregard of your duties and obligations hereunder.
8. Duration and Termination of this Agreement. This Agreement shall
remain in force until January 18, 1995 and from year to year thereafter, but
only for so long as such continuance is specifically approved at least annually
(i) by the vote of a majority of the Directors who are not interested persons of
you or of the Corporation, cast in person at a meeting called for the purpose of
voting on such approval, and (ii) by a vote of the Board of Directors or of a
majority of the outstanding voting securities of the Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the Investment
Company Act and the rules and regulations thereunder. This Agreement may, on 60
days' written notice, be terminated at any time without the payment of any
penalty, by the Board of Directors, by vote of a majority of the outstanding
voting securities of the Fund, or by you. This Agreement shall automatically
terminate in the event of its assignment. In interpreting the provisions of this
Agreement, the definitions contained in Section 2(a) of the Investment Company
Act (particularly the definitions of "interested person," "assignment" and
"majority of the outstanding voting securities"), as from time to time amended,
shall be applied, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
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9. Amendment of this Agreement. No provisions of this Agreement may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be
effective until approved by vote of the holders of a majority of the outstanding
voting securities of the Fund and by the Board of Directors, including a
majority of the Directors who are not interested persons of you or of the
Corporation, cast in person at a meeting for the purpose of voting on such
approval.
10. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. The
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Corporation, whereupon this letter shall become a binding
contract.
Yours very truly,
XXXXXXX FUND, INC.
on behalf of
Managed Intermediate Government Fund
By /s/ [Illegible]
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Title
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX, XXXXXXX & XXXXX, INC.
By /s/ [Illegible]
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Title:
