Exhibit 77(Q)(1)(e)
INVESTMENT ADVISORY AGREEMENT
November 1, 2015
Gabelli Funds, LLC
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Dear Sir:
Xxxxxxxxx Growth and Income Fund Ltd. (the "Fund"), a
statutory trust organized under the laws of the state of
Delaware, confirms its investment advisory agreement with
Gabelli Funds, LLC (the "Adviser"), as follows:
1. Investment Description: Appointment
The Fund desires to employ its capital by investing and
reinvesting in investments of the kind and in accordance with
the limitations specified (a) in its Amended and Restated
Agreement and Declaration of Trust, dated January 20, 2015 as
amended from time to time (the "Declaration of Trust"), (b) in
its Registration Statement on Form N-2 filed under the
Investment Company Act of 1940, as amended (the "1940 Act") as
from time to time in effect (the "Registration Statement"),
and (c) in its Investments Restrictions and Policies (the
"Investment Policies") as from time to time in effect, and in
such manner and to such extent as may from time to time be
approved by the Fund's Board of Trustees. The Adviser
acknowledges receipt of copies of the Declaration of Trust, the
Registration Statement, and the Investment Policies in their
form on the date hereof The Fund desires to employ and hereby
appoints the Adviser to act as its investment adviser and to
oversee the administration of all aspects of the Fund's
business and affairs and provide, or arrange for others whom it
believes to be competent to provide, certain services as
specified below. The Adviser accepts the appointment and agrees
to furnish the services set forth below for the compensation
set forth below. Nothing contained herein shall be construed to
restrict the Fund's right to hire its own employees or to
contract for administrative services to be performed by third
parties, including but not limited to, the calculation of the
net asset value of the Fund's shares.
2. Services
(a) Investment Advice. Subject to the direction and
control of the Fund's Board of Trustees, the Adviser will (i)
act in conformity with the Declaration of Trust, the 1940 Act
and the Investment Advisers Act of 1940, as the same may from
time to time be amended, (ii) manage the Fund's assets in
accordance with the Fund's Investment Policies, (iii) make and
implement all investment decisions for the Fund, (iv) exercise
all voting rights in respect of the Fund's assets and (v) place
purchase and sale orders with respect to investments on behalf
of the Fund. In rendering those services, the Adviser will
provide investment research and supervision of the Fund's
investments and conduct a continual program of investment,
evaluation and, if appropriate, sale and reinvestment of the
Fund's assets. In addition, the Adviser will furnish the Fund
Trustees with whatever statistical information they may
reasonably request with respect to the assets that the Fund may
hold or contemplate purchasing.
(b) Administration. The specific services to be provided
or arranged for by the Adviser for the Fund are (i) maintaining
the Fund's books and records, such as journals, ledger accounts
and other records in accordance with applicable laws and
regulations to the extent not maintained by the Fund's
custodian, transfer agent or dividend disbursing agent; (ii)
initiating all money transfers to the Fund's custodian and from
the Fund's custodian for the payment of the Fund's expenses,
investments, dividends and other distributions; (iii)
reconciling account information and balances among the Fund's
custodian, transfer agent, dividend disbursing agent and the
Adviser; (iv) providing the Fund with such office space and
facilities, utilities and office equipment as are adequate for
the Fund's needs; (v) preparing, but not paying for distribution
costs or filing fees with respect to all reports sent by the
Fund to its shareholders and all reports and filings required to
maintain registration and qualification of the Fund's shares
under federal and state law; (vi) preparation of additional
registration statements for or with respect to future offerings
of securities of the Fund (but not paying the filing fees or
other costs associated therewith); (vii) supervising the
calculation of net asset value of the Fund's shares; and (viii)
preparing notices and agendas for meetings of the Fund's
shareholders, Board of Trustees, and Board committees, as well
as minutes of all such meetings.
3. Brokerage
In executing transactions for the Fund and selecting brokers
or dealers, the Adviser will seek best execution. In doing so,
the Adviser will consider all factors it deems relevant
including, but not limited to, the breadth of the market in the
security to be purchased or sold, the price of such security,
the financial condition and execution capability of the broker
or dealer and the reasonableness of any commission for the
specific transaction and on a continuing basis. In selecting
brokers or dealers to execute a particular transaction, the
Adviser may consider the brokerage and research services
provided to the Fund and/or other accounts over which the
Adviser or an affiliate of the Adviser exercises investment
discretion. If the Adviser selects an affiliated person of the
Adviser to act as a broker or dealer for the Fund, it will
comply with all legal requirements and will report on the use of
such broker or dealer to the Fund Board of Trustees at the next
regularly scheduled Board meeting.
4. Information Provided to the Fund
The Adviser will keep the Fund informed of developments
materially affecting the Fund, and will, on its own initiative,
furnish the Fund from time to time with whatever information the
Adviser believes is appropriate for this purpose. The Adviser
will also provide information reasonably requested from time to
time by the Independent Trustees.
5. Standard of Care
The Adviser shall exercise its professional judgment in
rendering the services described in paragraphs 2 and 3 above.
The Adviser shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in
connection with the matters of which this Agreement relates,
provided that nothing in this paragraph shall be deemed to
protect or purport to protect the Adviser against any liability
to the Fund or to its shareholders to which the Adviser would
otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence on its part in the performance of its duties
or by reason of the Adviser's reckless disregard of its
obligations and duties under this Agreement.
6. Compensation
In consideration of the services rendered pursuant to this
Agreement, the Fund will pay the Adviser, on the first business
day of each month, a fee for the previous month at an annual
rate of 0.80% of the first $100,000,000 of the Fund's average
weekly net assets and 0.55% of the Fund's average weekly net
assets in excess of $100,000,000. Upon any termination of this
Agreement before the end of a month, the fee for such part of
that month shall be prorated according to the proportion that
such period bears to the full monthly period and shall be
payable upon the date of termination of this Agreement. For the
purpose of determining fees payable to the Adviser, the Fund's
average weekly net assets shall be determined at the end of each
month on the basis of the Fund's average net assets for each
week during the month. The assets for each weekly period shall
be determined by averaging the net assets at the end of a week
with the net assets at the end of the prior week. The value of
the Fund's average weekly net assets shall be deemed to be the
average weekly value of the Fund's total assets minus the sum of
the Fund's liabilities (such liabilities shall exclude the
aggregate liquidation preference of outstanding preferred shares
and accumulated dividends, if any, on those shares.
7. Expenses
The Adviser will bear all expenses in connection with the
performance of its services under this Agreement. The Fund will
bear certain other expenses to be incurred in its operation,
including: underwriting compensation and reimbursements in
connection with sales of its securities, expenses for legal and
independent accountants' services, costs of printing proxies,
stock certificates and shareholder reports, charges of the
custodian, any sub-custodian and transfer and dividend paying
agent, expenses in connection with the Automatic Dividend
Reinvestment and Voluntary Cash Purchase Plan, Securities and
Exchange Commission fees, fees and expenses of Trustees who are
not officers or employees of the Adviser or its affiliates,
compensation and other expenses of officers and employees of the
Fund (including, but not limited to, the Chief Compliance
Officer, Vice President and Ombudsman) as approved by the
Trustees, accounting and pricing costs, membership fees in trade
associations, fidelity bond coverage for the Fund's officers and
employees, Trustees and officers' errors and omissions insurance
coverage, interest, brokerage costs, taxes, stock exchange
listing fees and expenses, all expenses of computing the Fund's
net asset value per share, including any equipment or services
obtained solely for the purpose of pricing shares or valuing the
Fund's investment portfolios, expenses of qualifying the Fund's
shares for sale in various states, preparation of filings with
the Securities and Exchange Commission (including but not
limited to Form N-PX, Form N-CSR and Form N-SAR), the costs of
third-party services to monitor and recover class action
settlement amounts, litigation and other extraordinary or non-
recurring expenses, and other expenses properly payable by the
Fund.
During the two year period commencing on the date this
Agreement becomes effective, the Adviser will either waive fees
or reimburse the Fund to the extent the total expenses of the
Fund (excluding brokerage costs, interest, (including in
respect of any preferred shares) taxes, acquired fund fees and
expenses, expenses chargeable to capital, and extraordinary
expenses) during any 365-day period exceed 1.10% of the weekly
average assets attributable to common shares plus the
liquidation preference of preferred shares of the Fund during
such period.
The Adviser hereby covenants and agrees to pay directly (or
to reimburse the Fund or Xxxxxxxx Capital Management Co.
("Xxxxxxxx") for) all regular compensation costs (but not
severance costs) paid or payable by the Fund or by Xxxxxxxx to
Xxxx X. Xxxxxx for the time period from the effective date of
this Agreement to and including December 31, 2015. The Adviser
also hereby covenants and agrees to pay directly (or to
reimburse the Fund or Xxxxxxxx for) all costs and expenses paid
or payable by the Fund or by Xxxxxxxx to or for the QED
accounting and support system from the effective date of this
Agreement to and including December 31, 2015 or until such later
date as the Adviser chooses to maintain the services thereof.
The costs and expenses payable or reimbursable by the Adviser
pursuant to this paragraph shall be payable or reimburseable
regardless of whether the total expenses of the Fund during the
365-day period during which such amounts were incurred exceed or
do not exceed 1.10% of the weekly average assets attributable to
common shares as set forth in the preceding paragraph.
8. Services to Other Companies or Accounts
The Fund understands that the Adviser now acts and will
continue to act as investment adviser to other investment
companies and may act in the future as investment adviser to
other investment companies or portfolios, and the Fund has no
objection to the Adviser so acting, provided that whenever the
Fund and one or more other portfolios of or investment companies
advised by the Adviser and its affiliates have available funds
for investment, investments suitable and appropriate for each
will be allocated in a manner believed to be equitable to each
and that whenever the Fund and one or more other portfolios of
or investment companies advised by the Adviser and its
affiliates desire to dispose of the same assets, such
dispositions will be allocated in a manner believed equitable to
each. The Fund recognizes that in some cases this procedure may
adversely affect the size of the position obtainable for the
Fund. In addition, the Fund understands that the Adviser's
agents will not devote their full time to the discharge of its
duties under this Agreement and nothing contained herein shall
be deemed to limit or restrict the right of the Adviser or any
affiliate of the Adviser to engage in and devote time and
attention to other businesses or to render services of whatever
kind or nature.
9. Indemnity
(a) The Fund hereby agrees to indemnify the Adviser and
each of the Adviser's Trustees, officers, employees, and agents
(including any individual who serves at the Adviser's request as
director, officer, partner, trustee or the like of another
corporation) and controlling persons (each such person being an
"indemnitee") against any liabilities and expenses, including
amounts paid in satisfaction of judgments, in compromise or as
fines and penalties, and counsel fees (all as provided in
accordance with applicable corporate law) reasonably incurred by
such indemnitee in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal,
before any court or administrative or investigative body in
which he may be or may have been involved as a party or
otherwise or with which he may be or may have been threatened,
while acting in any capacity set forth above in this paragraph
or thereafter by reason of his having acted in any such
capacity, except with respect to any matter as to which he shall
have been adjudicated not to have acted in good faith in the
reasonable belief that his action was in the best interest of
the Fund and furthermore, in the case of any criminal
proceeding, so long as he had no reasonable cause to believe
that the conduct was unlawful, provided, however, that (1) no
indemnitee shall be indemnified hereunder against any liability
to the Fund or its shareholders or any expense of such
indemnitee arising by reason of (i) willful misfeasance, (ii)
bad faith, (iii) gross negligence, (iv) reckless disregard of
the duties involved in the conduct of his position (the conduct
referred to in such clauses (i) through (v) being sometimes
referred to herein as "disabling conduct"), (2) as to any matter
disposed of by settlement or a compromise payment by such
indemnitee, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other
expenses shall be provided unless there has been a
determination that such settlement or compromise is in the best
interests of the Fund and that such indemnitee appears to have
acted in good faith in the reasonable belief that his action
was in the best interest of the Fund and did not involve
disabling conduct by such indemnitee and (3) with respect to
any action, suit or other proceeding voluntarily prosecuted by
any indemnitee as plaintiff, indemnification shall be mandatory
only if the prosecution of such action, suit or other
proceeding by such indemnitee was authorized by a majority of
the full Board of the Fund. Notwithstanding the foregoing the
Fund shall not be obligated to provide any such indemnification
to the extent such provision would waive any right which the
Fund cannot lawfully waive.
(b) The Fund shall make advance payments in connection
with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Fund receives
a written affirmation of the indemnitee's good faith belief
that the standard of conduct necessary for indemnification has
been met and a written undertaking to reimburse the Fund unless
it is subsequently determined that he is entitled to such
indemnification and if the Trustees of the Fund determine that
the facts then known to them would not preclude
indemnification. In addition, at least one of the following
conditions must be met: (A) the indemnitee shall provide a
security for his undertaking, (B) the Fund shall be insured
against losses arising by reason of any lawful advances, or (C)
a majority of a quorum of Trustees of the Fund who are neither
"interested persons" of the Fund nor parties to the proceeding
("Disinterested Non-Party Trustees") or an independent legal
counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-
type inquiry), that there is reason to believe that the
indemnitee ultimately will be found entitled to
indemnification.
(c) All determinations with respect to indemnification
hereunder shall be made (1) by a final decision on the merits by
a court or other body before whom the proceeding was brought
that such indemnitee is not liable by reason of disabling
conduct or, (2) in the absence of such a decision, by (i) a
majority vote of a quorum of the Disinterested Non-party
Trustees of the Fund, or (ii) if such a quorum is not obtainable
or even, if obtainable, if a majority vote of such quorum so
directs, independent legal counsel in a written opinion.
(d) The rights accruing to any indemnitee under these
provisions shall not exclude any other right to which he may
be lawfully entitled.
(e) Any indemnity payment to the Adviser pursuant to this
Section 9 shall be subject to the expense limitation set forth
in the penultimate paragraph of Section 7 for the two year time
period referred to therein.
10. Use of the Word "Gabelli"
It is understood and agreed that the word "Gabelli" is the
Adviser's property for copyright and other purposes. The Fund
further agrees that the word "Gabelli" in its name is derived
from the name of Xxxxx X. Xxxxxxx and such name may freely be
used by the Adviser for other investment companies, entities or
products. The Fund further agrees that, in the event that the
Adviser shall cease to act as an investment adviser to the Fund,
the Fund shall promptly take all necessary and appropriate
action to change its name to one that does not include the word
"Gabelli"; provided, however, that the Fund may continue to use
such name if the Adviser consents in writing to such use.
11. Term of Agreement
This Agreement shall become effective, if it has been
approved by the Board of Trustees or the shareholders of the
Fund in accordance with the requirements of the 1940 Act, upon
the date hereof and will continue in effect for two years and
thereafter will continue for successive annual periods, provided
such continuance-is specifically approved at least annually in
accordance with the requirements of the 1940 Act. This Agreement
is terminable, without penalty, on 60 days' written notice by
the Fund's Board of Trustees, by vote of holders of a majority
of the Fund's shares, or by the Adviser. This Agreement will
also terminate automatically in the event of its assignment (as
defined in the 1940 Act and the rules thereunder).
12. Amendment
The Adviser and the Fund may amend this Agreement without
shareholder approval so long as such amendment does not
materially change the advisory relationship between the
Adviser and the Fund.
13. Definitions
For purposes of this Agreement, the terms "value,"
"affiliated person," "assignment," and "interested person"
shall have the respective meanings given to them in the 1940
Act, and the term "Independent Trustee" means a trustee of the
Fund who is not an interested person of the Adviser
[Signature page follows]
If the foregoing is in accordance with your understanding,
kindly indicate your acceptance of this Agreement by signing and
returning the enclosed copy.
Very truly yours,
XXXXXXXXX GROWTH AND INCOME FUND
LTD.
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman
Agreed and Accepted:
GABELLI FUNDS, LLC
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President
