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THE 00 XXXX XXXXXX FUND, INC.
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
THE 00 XXXX XXXXXX X.X. EQUITY FUND
AGREEMENT, originally made on the 9th day of June, 1992 as amended and
restated November 1, 1993 between THE 00 XXXX XXXXXX FUND, INC., a Maryland
corporation (the "Corporation"), on behalf of The 00 Xxxx Xxxxxx X.X. Equity
Fund (the "Fund"), and XXXXX BROTHERS XXXXXXXX & CO., a New York limited
partnership (the "Adviser"),
WHEREAS, the Corporation is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Corporation desires to retain the Adviser to render investment
advisory services to the Fund, and the Adviser is willing to render such
services;
NOW, THEREFORE, this Agreement
WITNESSETH:
that in consideration of the premises and mutual promises hereinafter set forth,
the parties hereto agree as follows:
1. The Corporation hereby appoints the Adviser to act as investment adviser
to the Fund for the period and on the terms set forth in this Agreement. The
Adviser accepts such appointment and agrees to render the services herein set
forth, for the compensation herein provided.
2. Subject to the general supervision of the Directors of the Corporation,
the Adviser shall manage the investment operations of the Fund and the
composition of the Fund's portfolio of securities and investments, including
cash, the purchase, retention and disposition thereof and agreements relating
thereto, in accordance with the Fund's investment objective and policies as
stated in the Prospectus (as defined in paragraph 3 of this Agreement) and
subject to the following understandings:
(a) the Adviser shall furnish a continuous investment program for
the Fund's portfolio and determine from time to time what investments
or securities will be purchased, retained, sold or lent by the Fund,
and what portion of the assets will be invested or held uninvested as
cash;
(b) the Adviser shall use the same skill and care in the
management of the Fund's portfolio as it uses in the administration of
other accounts for which it has investment responsibility as agent;
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(c) the Adviser, in the performance of its duties and obligations
under this Agreement, shall act in conformity with the Corporation's
Articles of Incorporation and By-Laws and the Prospectus of the Fund
and with the instructions and directions of the Directors of the
Corporation and will conform to and comply with the requirements of the
1940 Act and all other applicable federal and state laws and
regulations including, without limitation, the regulations and rulings
of the New York State Banking Department;
(d) the Adviser shall determine the securities to be purchased,
sold or lent by the Fund and as agent for the Fund will effect
portfolio transactions pursuant to its determinations either directly
with the issuer or with any broker and/or dealer in such securities; in
placing orders with brokers and or dealers the Adviser intends to seek
best price and execution for purchases and sales and may effect
transactions through itself on a securities exchange provided that the
commissions paid by the Fund are "reasonable and fair" compared to
commissions received by other broker-dealers having comparable
execution capability in connection with comparable transactions
involving similar securities and provided that the transactions in
connection with which such commissions are paid are effected pursuant
to procedures established by the Directors of the Corporation; the
Adviser shall also make recommendations regarding whether or not the
Fund shall enter into contracts for the purchase or sale for future
delivery of contracts providing for the making or acceptance of a cash
settlement based upon changes in the value of an index of securities,
or put or call option contracts, with respect to the Fund's portfolio.
On occasions when the Adviser deems the purchase or sale of a
security to be in the best interest of the Fund as well as other customers, the
Adviser, may, to the extent permitted by applicable laws and regulations, but
shall not be obligated to, aggregate the securities to be so sold or purchased
in order to obtain the best execution and lower brokerage commissions, if any.
In such event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to such other customers;
(e) the Adviser shall maintain books and records with respect to
the Fund's securities transactions and shall render to the
Corporation's Directors such periodic and special reports as the
Directors may reasonably request; and
(f) the investment management services of the Adviser to the Fund
under this Agreement are not to be deemed exclusive, and the Adviser
shall be free to render similar services to others.
3. The Corporation has delivered copies of each of the following documents
to the Adviser and will promptly notify and deliver to it all future amendments
and supplements, it any:
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(a) Articles of Incorporation of the Corporation, filed with the
State of Maryland on July 16, 1990 (such Articles of Incorporation, as
presently in effect and as amended from time to time, are herein called
the "Articles of Incorporation");
(b) By-Laws of the Corporation (such By-Laws, as presently in
effect and as amended from time to time, are herein called the
"By-Laws");
(c) Certified resolutions of the Directors of the Corporation
authorizing the appointment of the Adviser and approving the form of
this Agreement;
(d) Registration Statement under the 1940 Act and the Securities
Act of 1933, as amended, on Form N-IA (No. 33-48605) (the "Registration
Statement") as filed with the Securities and Exchange Commission (the
"Commission") on March 1, 1993 relating to the Corporation and the
shares of common stock, par value $0.001 per share (the "Shares"), of
the Fund;
(e) Notification of Registration of the Corporation under the 1940
Act on Form N-8A as filed with the Commission on July 16, 1990; and
(f) Prospectus of the Fund, dated March 1, 1993 (such prospectus,
as presently in effect and as amended or supplemented with respect to
the Fund from time to time, is herein called the "Prospectus").
4. The Adviser shall keep the Fund's books and records required to be
maintained by it pursuant to paragraph 2(e). The Adviser agrees that all records
which it maintains for the Fund are the property of the Fund and it will
promptly surrender any of such records to the Fund upon the Fund's request. The
Adviser further agrees to preserve for the periods prescribed by Rule 3la-2 of
the Commission under the 1940 Act any such records as are required to be
maintained by the Adviser with respect to the Fund by Rule 3 1 a- I of the
Commission under the 1940 Act.
5. During the term of this Agreement the Adviser will pay all expenses
incurred by it in connection with its activities under this Agreement other than
the cost of securities and investments purchased for the Fund (including taxes
and brokerage commissions, if any).
6. For the services provided and the expenses borne pursuant to this
Agreement, the Adviser will receive from the Fund as full compensation therefor
a fee at an annual rate equal to 0.65% of the Fund's average daily net assets.
This fee will be computed based on net assets at 4:00 P.M. New York time on each
day the New York Stock Exchange is open for trading and will be paid to the
Adviser monthly during the succeeding calendar month.
7. 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 to which
this Agreement relates, except a loss resulting from a breach of fiduciary duty
with respect to the receipt of compensation for services (in which case any
award of damages shall be limited to the period and the amount set forth in
Section 36(b)(3) of the 0000 Xxx) or a loss resulting from wilful misfeasance,
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bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement.
8. This Agreement shall continue in effect for two years from the date of
its execution and thereafter, but only so long as its continuance is
specifically approved at least annually in conformity with the requirements of
the 1940 Act; provided, however, that this Agreement may be terminated with
respect to the Fund by the Corporation at any time, without the payment of any
penalty, by vote of a majority of all the Directors of the Corporation or by
"vote of a majority of the outstanding voting securities" of the Fund on 60
days' written notice to the Adviser, or by the Adviser at any time, without the
payment of any penalty, on 90 days' written notice to the Corporation. This
Agreement will automatically and immediately terminate in the event of its
"assignment".
9. The Adviser shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided herein or authorized
by the Directors of the Corporation from time to time, have no authority to act
for or represent the Fund or the Corporation in any way or otherwise be deemed
an agent of the Fund or the Corporation.
10. This Agreement may be amended by mutual consent, but the consent of the
Corporation must be approved (a) by vote of a majority of those Directors of the
Corporation who are not parties to this Agreement or "interested persons" of any
such party, cast in person at a meeting called for the purpose of voting on such
amendment, and (b) by "vote of a majority of the outstanding voting securities"
of the Fund.
11. As used in this Agreement, the terms "assignment", "interested persons"
and "vote of a majority of the outstanding voting securities" shall have the
meanings assigned to them respectively in the 1940 Act.
12. Notices of any kind to be given to the Adviser by the Corporation shall
be in writing and shall be duly given if mailed or delivered to the Adviser at
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer, or at such other
address or to such other individual as shall be specified by the Adviser to the
Corporation. Notices of any kind to be given to the Corporation by the Adviser
shall be in writing and shall be duly given if mailed or delivered to the
Corporation at The 00 Xxxx Xxxxxx Fund, Inc., 0 Xx. Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Secretary, or at such other address or to such
other individual as shall be specified by the Corporation to the Adviser.
13. The Directors have authorized the execution of this Agreement in their
capacity as Directors and not individually and the Adviser agrees that neither
the shareholders nor the Directors nor any officer, employee, representative or
agent of the Corporation shall be personally liable upon, nor shall resort be
had to their private property for the satisfaction of, obligations given,
executed or delivered on behalf of or by the Corporation, that the shareholders,
Directors, officers, employees, representatives and agents of the Corporation
shall not be personally liable hereunder, and the Adviser shall look solely to
the property of the Corporation for the satisfaction of any claim hereunder.
14. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers or Partners designated below on the day and year
first above written.
THE 00 XXXX XXXXXX FUND
/S/ X.X. XXXXXXX, XX.
ATTEST: By.................................
XXXXX BROTHERS XXXXXXXX & CO.
/S/ XXXX X. XXXXXXX
ATTEST: By.................................
