INVESTMENT ADVISORY AGREEMENT
AMERINDO TECHNOLOGY FUND
A SERIES OF
AMERINDO FUNDS INC.
Xxx Xxxxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
July 31, 1996
Amerindo Investment Advisors Inc.
Xxx Xxxxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Gentlemen:
We herewith confirm our agreement with you as follows:
1. We propose to engage in the business of investing and reinvesting the
assets of Amerindo Technology Fund (the "Fund"), a series of Amerindo Funds Inc.
(the "Company"), in securities of the type, and in accordance with the
limitations, specified in our Articles of Incorporation, By-Laws and
Registration Statement filed with the Securities and Exchange Commission under
the Investment Company Act of 1940 (the "1940 Act") and the Securities Act of
1933, including the Prospectus forming a part thereof (the "Registration
Statement"), all as from time to time in effect, and in such manner and to such
extent as may from time to time be authorized by the Company's Board of
Directors. We enclose copies of the documents listed above and will furnish you
such amendments thereto as may be made from time to time.
2. (a) We hereby employ you to manage the investment and reinvestment of
our assets as above specified, and, without limiting the generality of the
foregoing, to provide the management and other services specified below.
(b) Subject to the general control of the Company's Board of
Directors, you will make decisions with respect to all purchases and sales
of our portfolio securities. To carry out such decisions, you are hereby
authorized, as our agent and attorney-in-fact, for our account and at our
risk and in our name, to place orders for the investment and reinvestment
of our assets. In all purchases, sales and other transactions in our
portfolio securities you are authorized to exercise full discretion and act
for us in the same manner and with the same force and effect as our
corporation itself might or
could do with respect to such purchases, sales or other transactions, as
well as with respect to all other things necessary or incidental to the
furtherance or conduct of such purchases, sales or other transactions. In
furtherance of such and subject to applicable law and procedures adopted by
the Company's Board of Directors, you may (i) pay commissions to brokers
other than yourself which are higher than such that might be charged by
another qualified broker to obtain brokerage and/or research services
considered by you to be useful or desirable for your investment management
of the Fund and/or other advisory accounts of yours and any investment
advisor affiliated with you; and (ii) consider the sales of shares of the
Fund by brokers including your affiliates as a factor in your selection of
brokers for portfolio transactions.
(c) You will report to the Company's Board of Directors at each
meeting thereof all changes in the Fund since your prior report, and will
also keep us in touch with important developments affecting the Fund and,
on your own initiative, will furnish us from time to time with such
information as you may believe appropriate for this purpose, whether
concerning the individual entities whose securities are included in the
Fund the activities in which such entities engage, Federal income tax
policies applicable to our investments, or the conditions prevailing in the
economy generally. You will also furnish us with such statistical and
analytical information with respect to our portfolio securities as you may
believe appropriate or as we may reasonably request. In making such
purchases and sales of our portfolio securities, you will comply with the
policies set from time to time by the Company's Board of Directors as well
as the limitations imposed by our Articles of Incorporation, the provisions
of the Internal Revenue Code relating to regulated investment companies and
the 1940 Act, and the limitations contained in our Registration Statement.
(d) It is understood that you may from time to time employ,
subcontract with or otherwise associate yourself with, entirely at your
expense, such persons as you believe to be particularly fitted to assist
you in the execution of your duties hereunder.
(e) You or your affiliates will also provide supervisory personnel who
will be responsible for supervising and monitoring the performance of our
Administrator in connection with its duties under our Administrative
Services Agreement. Such personnel may be your employees or employees of
your affiliates or of other organizations. It is understood that we have
retained, at our expense, the Administrator to perform the operational
components of the functions and services listed herein.
(f) You or your affiliates will also furnish us such additional
administrative supervision and such office facilities as you may believe
appropriate subject to the requirements of any regulatory authority to
which you may be subject. We will reimburse you for all of our operating
costs incurred by you, including rent, depreciation of equipment and
facilities, interest and amortization of loans financing
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equipment used by us and all the expenses incurred to conduct our affairs.
The amounts of such reimbursements shall from time-to-time be agreed upon
between us.
3. We agree, subject to the limitations described below, to be responsible
for, and hereby assume the obligation for payment of, all our expenses
including: (a) brokerage and commission expenses; (b) foreign, federal, state or
local taxes, including issuance and transfer taxes incurred by or levied on us;
(c) commitment fees, certain insurance premiums and membership fees and dues in
investment company organizations; (d) interest charges on borrowings; (e)
charges and expenses of our custodian; (f) charges and expenses relating to the
issuance, redemption, transfer and dividend disbursing functions for us; (g)
telecommunications expenses; (h) recurring and non-recurring legal, accounting
and recordkeeping expenses; (i) costs of organizing and maintaining the
Company's existence as a corporation; (j) compensation, including directors'
fees, of any of our directors, officers or employees who are not your officers
or employees or those of the Administrator or their affiliates, and costs of
other personnel providing administrative and clerical services to us; (k) costs
of providing shareholders' services, including charges and expenses of persons
providing confirmations of transactions in the Fund's shares, periodic
statements to shareholders and recordkeeping services, and costs of
shareholders' reports, proxy solicitations, and corporate meetings; (l) fees and
expenses of registering our shares under the appropriate federal securities laws
and of qualifying our shares under applicable state securities laws, including
expenses attendant upon the initial registration and qualification of these
shares and attendant upon renewals of, or amendment to, those registrations and
qualifications; (m) expenses of preparing, printing and delivering the initial
registration statement and of preparing, printing and delivering the Prospectus
to existing shareholders and of printing shareholder application forms for
shareholder accounts; (n) fees and expenses payable to the Adviser, Distributor,
Administrator, custodian, transfer agent and dividend agent; and (o) any other
distribution or promotional expenses contemplated by an effective plan adopted
by us pursuant to Rule 12b-1 under the 1940 Act. Our obligation for the
foregoing expenses is limited by your agreement to be responsible, while this
Agreement is in effect, for any amount by which our annual operating expenses,
including distribution expenses (excluding taxes, brokerage, interest and
extraordinary expenses) exceed the limits on investment company expenses
prescribed by any state in which the Fund's shares are qualified for sale.
4. We will expect of you, and you will give us the benefit of, your best
judgment and efforts in rendering these services to us, and we agree as an
inducement to your undertaking these services that you will not be liable
hereunder for any mistake of judgment or for any other cause, provided that
nothing herein shall protect you against any liability to us or to our security
holders by reason of willful misfeasance, bad faith or gross negligence in the
performance of your duties hereunder, or by reason of your reckless disregard of
your obligations and duties hereunder.
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5. (a) In consideration of the foregoing we will pay you an annual fee
equal to 1.50% of the Fund's annual average daily net assets. Your fee will be
accrued by us daily, and will be payable on the last day of each calendar month
for services performed hereunder during that month or on such other schedules as
you shall request of us in writing. You may waive your right to any fee to which
you are entitled hereunder, provided such waiver is delivered to us in writing.
Any reimbursement of our expenses, to which we may become entitled pursuant to
the last sentence of paragraph 3 hereof, will be paid to us at the end of the
month for which those expenses are accrued, at the same time as we pay you your
fee.
(b) Pursuant to the Fund's Distribution and Service Plan and the
Shareholder Servicing Agreement, you will also act as a shareholder
servicing agent for the Fund pursuant to which the Fund is permitted to pay
you a maximum of 0.25% per annum of the Fund's average daily net assets to
compensate you for providing shareholder services and to permit you to
compensate banks, savings and loans and other financial institutions (the
Adviser, with such other institutions, each a "Shareholder Servicing
Agent") whose clients are Fund shareholders for providing shareholder
services. In addition, you may use the advisory fee for distribution of our
shares and for servicing purposes including defraying the costs of
performing shareholder servicing functions on behalf of the Fund and to
compensate others with whom you may have entered into a written agreement
for performing shareholder servicing functions on behalf of the Fund. To
the extent that you or your affiliates directly may make payments to other
third parties who render shareholder support services and that such
payments may be deemed indirect financing of an activity primarily intended
to result in the sale of shares of the Fund within the context of Rule
12b-1 under the 1940 Act (the "Rule"), then such payments by you shall be
deemed to be authorized under the Fund's Distribution and Service Plan
adopted pursuant to the Rule. You will, in your sole discretion, determine
the amount of such payments and may from time to time in your sole
discretion increase or decrease the amount of such payments; provided,
however, that no such payment will increase the amount the Fund is required
to pay you or any person under this Agreement or any agreement. Any
payments made by you for such purposes are subject to compliance with the
terms of written agreements in a form satisfactory to the Fund's Board of
Directors to be entered into by you and the participating organization.
6. This Agreement will become effective on July 31, 1996 and shall continue
in effect until July 30, 1998 and thereafter for successive twelve-month periods
(computed from each July 31), provided that such continuation is specifically
approved at least annually by the Company's Board of Directors or by a majority
vote of the holders of the Fund's outstanding voting securities, as defined in
the 1940 Act, and, in either case, by a majority of those of the Company's
Directors who are neither party to this Agreement nor, other than by their
service as Directors of the Company, interested persons, as defined in the 1940
Act, of any such person who is party to this Agreement. Upon the effectiveness
of this Agreement, it shall supersede all previous Agreements
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between us covering the subject matter hereof. This Agreement may be terminated
at any time, without the payment of any penalty, by vote of a majority of the
Fund's outstanding voting securities, as defined in the 1940 Act, or by a vote
of a majority of the entire Board of Directors, on sixty days' written notice to
you, or by you on sixty days' written notice to us.
7. This Agreement may not be transferred, assigned, sold or in any manner
hypothecated or pledged by you and this Agreement shall terminate automatically
in the event of any such transfer, assignment, sale, hypothecation or pledge by
you. The terms "transfer", "assignment" and "sale" as used in this paragraph
shall have the meanings ascribed thereto by governing law and in applicable
rules or regulations of the Securities and Exchange Commission.
8. (a) Except to the extent necessary to perform your obligations
hereunder, nothing herein shall be deemed to limit or restrict your right, or
the right of any of your officers, directors or employees who may also be a
director, officer or employee of ours, or of a person affiliated with us, as
defined in the 1940 Act, to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to any other
corporation, firm, individual or association.
(b) The Company understands that you and your affiliates and
employees, as well as their agents privy to the transactions made in the
Company's account, may, subject to the Fund's and to your Code of Ethics,
purchase and sell investments for either your or their own account, which
investments may include the same investments that the Company's account is
purchasing or selling; provided, however, that no purchase or sale by you,
or any of your affiliates, agents or employees, or any of their agents
privy to the transactions made in the Company's account, will be made in a
manner which would result in any detriment to the Company, and such persons
shall always keep the interests of the Company first in effecting any such
transaction.
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If the foregoing is in accordance with your understanding, will you kindly
so indicate by signing and returning to us the enclosed copy hereof.
Very truly yours,
AMERINDO FUNDS INC.,
AMERINDO TECHNOLOGY FUND
By: /S/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board
ACCEPTED: July 31, 1996
AMERINDO INVESTMENT ADVISORS INC.
By: /S/ XXXX X. XXXXX
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
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AMENDMENT TO INVESTMENT ADVISORY AGREEMENT
THIS AMENDMENT TO INVESTMENT ADVISORY AGREEMENT is made as of June 6, 2001
by and between AMERINDO FUNDS INC., a Maryland corporation (the "Fund"), and
AMERINDO INVESTMENT ADVISORS INC., a California corporation (the "Adviser").
W I T N E S S E T H:
WHEREAS, the Fund and Adviser are parties to that certain Investment
Advisory Agreement, dated as of July 31, 1996 (the "Advisory Agreement"),
pursuant to which the Adviser serves as the investment adviser for the Fund; and
WHEREAS, the Fund and Adviser desire to amend the Advisory Agreement to
modify the term of the Advisory Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Paragraph 6 of the Advisory Agreement is hereby amended by modifying the
annual expiration date to May 31st of each successive contract year; and
2. The Advisory Agreement, as expressly amended hereby, shall continue in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT TO
INVESTMENT ADVISORY AGREEMENT as of the day and year first above written.
AMERINDO FUNDS INC.
By: /S/ XXXXXXX XXXXX
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Secretary
AMERINDO INVESTMENT
ADVISORS INC.
By: /S/ XXXXXXX XXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Compliance Officer
