Exhibit 23(d)
INVESTMENT ADVISORY AGREEMENT
XXXXXX ONE HUNDRED AND ONE FUND, INC.
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this ____ day
of October, 1994, between XXXXXX ASSOCIATES, INC., a Delaware corporation
("Xxxxxx Associates"), and XXXXXX ONE HUNDRED AND ONE FUND, INC., a Maryland
corporation (the "Fund").
W I T N E S E T H:
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WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and has registered it shares for public offering under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Fund and Xxxxxx Associates deem it mutually advantageous that
Xxxxxx Associates should assist the directors and officers of the Fund in the
management of the securities portfolio of the Fund.
NOW, THEREFORE, the parties agree as follows:
1. Management Functions. In addition to the expenses
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which Xxxxxx Associates may incur in the performance of its investment advisory
functions under this Agreement, and the expenses which it may expressly
undertake to incur and pay under other agreements with the Fund or otherwise,
Xxxxxx Associates shall incur and pay the following expenses relating to the
Fund's operations without reimbursement from the Fund:
(a) Reasonable compensation, fees and related expenses of the Fund's
officers and its directors (the "Directors"), except for such
Directors who are not interested persons of Xxxxxx Associates;
(b) Rental of offices of the Fund; and
(c) All expenses of promoting the sale of shares of the Fund, other than
expenses incurred in complying with federal and state laws and the law
of any foreign country or territory or other jurisdiction applicable
to the issue, offer or sale of shares of the Fund including without
limitation registration fees and costs, the costs of preparing the
registration statement relating to the Fund and amendments thereto,
and the costs and expenses of preparing, printing, and mailing
prospectuses (and statements of additional information) to persons
other than shareholders of the Fund.
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2. Investment Advisory Functions. In its capacity as
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investment adviser to the Fund, Xxxxxx Associates shall have the following
responsibilities:
(a) To furnish continuous advice and recommendations to the Fund as to the
acquisition, holding or disposition of any or all of the securities or
other assets which the Fund may own or contemplate acquiring from time
to time, giving due consideration to the investment policies and
restrictions and the other statements concerning the Fund in the
Fund's Articles of Incorporation, Bylaws, and registration statements
under the 1940 Act and the 1933 Act, and to the provisions of the
Internal Revenue Code, as amended from time to time, applicable to the
Fund as a regulated investment company;
(b) To cause its officers to attend meetings and furnish oral or written
reports, as the Fund may reasonably require, in order to keep the
Directors and appropriate officers of the Fund fully informed as to
the condition of the investment portfolio of the Fund, the investment
recommendations of Xxxxxx Associates, and the investment
considerations which have given rise to those recommendations; and
(c) To supervise the purchase and sale of securities as directed by the
appropriate officers of the Fund.
3. Obligations of Fund. The Fund shall have the
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following obligations under this Agreement:
(a) To keep Xxxxxx Associates continuously and fully informed as to the
composition of the investment portfolio of the Fund and the nature of
all of the Fund's assets and liabilities from time to time;
(b) To furnish Xxxxxx Associates with a certified copy of any financial
statement or report prepared for the Fund by certified or independent
public accountants and with copies of any financial statements or
reports made to the Fund's shareholders or to any governmental body or
securities exchange;
(c) To furnish Xxxxxx Associates with any further materials or information
which Xxxxxx Associates may reasonably request to enable it to perform
its function under this Agreement; and
(d) To compensate Xxxxxx Associates for its services and reimburse Xxxxxx
Associates for its expenses incurred hereunder in accordance with the
provisions of paragraph 4 hereof.
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4. Compensation. The Fund shall pay to Xxxxxx
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Associates for its services under this Agreement a monthly fee, payable on the
last day of each month during which or part of which this Agreement is in
effect, of 1/12 of .75% of the average daily closing net asset value of the Fund
for such month. For the month during which this Agreement becomes effective and
the month during which it terminates, however, there shall be an appropriate
proration of the fee payable for such month based on the number of calendar days
of such month during which this Agreement is effective.
5. Expenses Paid by the Fund. The Fund assumes and
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shall pay all expenses incidental to its operations and business not
specifically assumed or agreed to be paid by Xxxxxx Associates pursuant to
Section 1 hereof, including, but not limited to, investment adviser fees; any
compensation, fees or reimbursements which the Fund pays to its Directors who
are not interested persons of Xxxxxx Associates; compensation of the Fund's
custodian, transfer agent, registrar and dividend disbursing agent; legal,
accounting, audit and printing expenses; administrative, clerical, recordkeeping
and bookkeeping expenses; brokerage commissions and all other expenses in
connection with execution of portfolio transactions (including any appropriate
commissions paid to Xxxxxx Associates or its affiliates for effecting exchange
listed, over-the-counter or other securities transactions); interest; all
federal, state and local taxes (including stamp, excise, income and franchise
taxes); costs of stock certificates and expenses of delivering such certificates
to the purchasers thereof; expenses of local representation in Maryland;
expenses of shareholders' meetings and of preparing, printing and distributing
proxy statements, notices, and reports to shareholders; expenses of preparing
and filing reports and tax returns with federal and state regulatory
authorities; all expenses incurred in complying with all federal and state laws
and the laws of any foreign country applicable to the issue, offer or sale of
shares of the Fund, including, but not limited to, all costs involved in the
registration or qualification of shares of the Fund for sale in any
jurisdiction, the costs of portfolio pricing services and systems for compliance
with blue sky laws, and all costs involved in preparing, printing and mailing
prospectuses and statements of additional information of the Fund; and all fees,
dues and other expenses incurred by the Fund in connection with the membership
of the Fund in any trade association or other investment company organization.
To the extent that Xxxxxx Associates shall perform any of the above described
administrative and clerical functions, including transfer agency, registry,
dividend disbursing, recordkeeping, bookkeeping, accounting and blue sky
monitoring and registration functions, and the preparation of reports and
returns, the Fund shall pay to Xxxxxx Associates compensation for, or reimburse
Xxxxxx Associates for its expenses incurred in connection with, such services as
Xxxxxx Associates and the Fund shall agree from time to time, any other
provision of this Agreement notwithstanding.
6. Treatment of Investment Advice. The Fund shall
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treat the investment advice and recommendations of Xxxxxx Associates as being
advisory only, and shall retain full control over its own investment policies.
However, the Directors may delegate to the appropriate officers of the Fund, or
to a committee of the Directors, the power to authorize purchases, sales or
other actions affecting the portfolio of the Fund in the interim between
meetings of the Directors.
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7. Brokerage Commissions. For purposes of this
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Agreement, brokerage commissions paid by the Fund upon the purchase or sale of
its portfolio securities shall be considered a cost of securities of the Fund
and shall be paid by the Fund. Xxxxxx Associates is authorized and directed to
place Fund portfolio transactions only with brokers and dealers who render
satisfactory service in the execution of orders at the most favorable prices and
at reasonable commission rates, provided, however, that Xxxxxx Associates may
pay a broker or dealer an amount of commission for effecting a securities
transaction in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if Xxxxxx Associates determines in
good faith that such amount of commission was reasonable in relation to the
value of the brokerage and research services provided by such broker or dealer
viewed in terms of either that particular transaction or the overall
responsibilities of Xxxxxx Associates. Xxxxxx Associates is also authorized to
consider sales of Fund shares as a factor in selecting broker-dealers to execute
Fund portfolio transactions. In placing portfolio business with such
broker-dealers, Xxxxxx Associates shall seek the best execution of each
transaction. Subject to the terms of this Agreement and the applicable
requirements and provisions of the law, including the Investment Company Act of
1940 and the Securities Exchange Act of 1934, as amended, and in the event that
Xxxxxx Associates or an affiliate is registered as a broker-dealer, Xxxxxx
Associates may select a broker or dealer with which it or the Fund is
affiliated. Xxxxxx Associates or such affiliated broker-dealer may effect or
execute Fund portfolio transactions, whether on a securities exchange or in the
over-the-counter market, and receive separate compensation from the Fund
therefor. Notwithstanding the foregoing, the Fund shall retain the right to
direct the placement of all portfolio transactions, and the Directors of the
Fund may establish policies or guidelines to be followed by Xxxxxx Associates in
placing portfolio transactions for the Fund pursuant to the foregoing
provisions. Xxxxxx Associates shall report on the placement of portfolio
transactions in the prior fiscal quarter at each quarterly meeting of such
Directors.
8. Termination. This Agreement may be terminated at
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any time, without penalty, by the Directors of the Fund, or by the shareholders
of the Fund acting by vote of at least a majority of its outstanding voting
securities, provided in either case that sixty (60) days' advance written notice
of termination be given to Xxxxxx Associates at its principal place of business.
This Agreement may be terminated by Xxxxxx Associates at any time, without
penalty, by giving sixty (60) days' advance written notice of termination to the
Fund, addressed to its principal place of business.
9. Assignment. This Agreement shall terminate
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automatically in the event of any assignment of this Agreement.
10. Term. This Agreement shall continue in effect
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until the last day of April, 1995, unless sooner terminated in accordance with
its terms, and shall continue in effect from year to year thereafter only so
long as such continuance is specifically approved at least annually by the vote
of a majority of the Directors of the Fund who are not parties hereto or
interested persons of any such party, cast in person at a meeting called for the
purpose of voting on the approval of the terms of such renewal, and by either
the Directors of the Fund or the affirmative
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vote of a majority of the outstanding voting securities of the Fund. The annual
approvals provided for herein shall be effective to continue this Agreement from
year to year if given within a period beginning not more than sixty (60) days
prior to the last day of April of each applicable year, notwithstanding the fact
that more than three hundred sixty-five (365) days may have elapsed since the
date on which such approval was last given.
11. Amendments. This Agreement may be amended by the
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parties only if such amendment is specifically approved (i) by a majority of the
Directors, including a majority of the Directors who are not interested persons
of Xxxxxx Associates and, if required by applicable law, (ii) by the affirmative
vote of a majority of the outstanding voting securities of the Fund.
12. Allocation of Expenses. The Directors shall
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determine the basis for making an appropriate allocation of the Fund's expenses
(other than those directly attributable to the Fund) between the Fund and any
other series of the Fund and between the Fund and other investment companies
managed by Xxxxxx Associates.
13. Activities of Xxxxxx Associates. The services of
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Xxxxxx Associates to the Fund hereunder are not to be deemed to be exclusive,
and Xxxxxx Associates and its affiliates are free to render services to other
parties. It is understood that Directors, officers and shareholders of the Fund
are or may become interested in Xxxxxx Associates as directors, officers and
shareholders of Xxxxxx Associates, that directors, officers, employees and
shareholders of Xxxxxx Associates are or may become similarly interested in the
Fund, and that Xxxxxx Associates may become interested in the Fund as a
shareholder or otherwise.
14. Certain Definitions. The terms "vote of a
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majority of the outstanding voting securities", "assignment" and "interested
persons" when used herein, shall have the respective meanings specified in the
1940 Act, as now in effect or hereafter amended, and the rules and regulations
thereunder, subject to such orders, exemptions and interpretations as may be
issued by the Securities and Exchange Commission under said Act and as may be
then in effect.
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Investment Advisory Agreement as of the date and year first
above written.
XXXXXX ASSOCIATES, INC.
By
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Title:
XXXXXX ONE HUNDRED AND ONE FUND, INC.
By
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Title:
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