Exhibit (5)(a)(6)
XXXXXXX X. XXXXXXXXX FUND, INC.
INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT, dated as of October 11, 1995 between XXXXXXX X.
XXXXXXXXX FUND, INC., a Maryland Corporation, (the "Fund"), on behalf of the
Xxxxxxxxx Emerging Markets Value Portfolio (the "Portfolio"), and XXXXXXX X.
XXXXXXXXX & CO., INC., a New York Corporation (the "Adviser" or "Xxxxxxxxx").
In consideration of the mutual agreements herein made, the parties hereto agree
as follows:
1. Duties of the Adviser. The Adviser shall manage the investment operations
of the Portfolio and the Fund including, but not limited to, continuously
providing the Portfolio with investment management, including investment
research, advice and supervision, determining which securities or other
investments including, but not limited to, debt and equity securities, futures,
options and options on futures, shall be purchased or sold by the Portfolio,
making purchases and sales of securities and such other investments on behalf
of the Portfolio and determining how voting and other rights with respect to
securities and other investments owned by the Fund on behalf of the Portfolio
shall be exercised, subject in each case to oversight by the Board of
Directors of the Fund (the "Directors" or the "Board") and in accordance with
the investment objectives and policies of the Fund and of the Portfolio set
forth in the Registration Statement and the current Prospectus and Statement
of Additional Information relating to the Fund or the Portfolio, as amended
from time to time, the requirements of the Investment Company Act of 1940, as
amended (the "Act") and other applicable law. The Fund understands that the
Adviser may also act as the investment manager to other persons or entities,
including other investment companies.
2. Limitation of Liability. Subject to Section 36 of the Act, the Adviser, and
the directors, officers and employees of the Adviser, shall not be liable to the
Fund or the Portfolio for any error of judgment or mistake of law or for any
loss arising out of any investment or the performance or non-performance of
duties under this Agreement, except for willful misfeasance, bad faith or gross
negligence in the performance of, or by reason of reckless disregard of,
obligations and duties under this Agreement.
3. Indemnification.
(a) The Fund, on behalf of the Portfolio, shall indemnify and hold harmless
the Adviser, and the directors, officers, and
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employees of the Adviser, against any loss, liability, claim, damage or expense
(including the reasonable cost of investigating or defending any alleged loss,
liability, claim, damage or expenses and reasonable counsel fees incurred in
connection therewith) arising out of the performance or non-performance of any
duties under this Agreement, provided, however, that nothing herein shall be
deemed to protect the Adviser or any director, officer or employee thereof
against any liability to the Fund or its stockholders, to which the Adviser or
any director, officer or employee thereof would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties under this
Agreement.
4. Expenses. The Adviser shall pay all of its expenses arising from the
performance of its obligations under Section 1 of this Agreement and shall pay
any salaries, fees and expenses of the Directors who are employees of the
Adviser. In addition, during the first two years of operation of the Portfolio,
the Adviser will pay any Portfolio operating expenses (excluding interest,
taxes, brokerage commissions and extraordinary expenses) which, together with
fees payable to Xxxxxxxxx pursuant to the Shareholder Servicing and
Administrative Agreement entered into by the Fund on behalf of the Portfolio and
Adviser, exceed the rate of 2.00% per annum of the Portfolio's average daily net
assets. Portfolio transaction fees on purchases and redemptions are not
operating expenses; no portion of the portfolio transaction fees will be paid by
the Adviser. For the purposes of this Agreement, the term "the first two years
of operation" means the 24-month period commencing with the first day of the
first month after shares of the Portfolio are first issued to the public. The
Adviser shall not be required to pay any other expenses of the Fund or the
Portfolio, including (a) the fees payable to Xxxxxxxxx under this Agreement and
the Shareholder Servicing and Administrative Agreement; (b) the fees and
expenses of Directors who are not affiliated with Xxxxxxxxx; (c) the fees and
expenses of the Custodian and Transfer Agent including but not limited to fees
and expenses relating to Fund accounting, pricing of the Portfolio's shares, and
computation of net asset value; (d) the fees and expenses of calculating yield
and/or performance of the Portfolio; (e) the charges and expenses of legal
counsel and independent accountants; (f) all taxes and corporate fees payable to
governmental agencies; (g) the fees of any trade association of which the Fund
is a member; (h) reimbursement of the Portfolio's share of the organization
expenses of the Portfolio or the Fund; (i) the fees and expenses involved in
registering and maintaining registration of the Fund and the shares of the
Portfolio with the Securities and Exchange Commission, registering the Fund as a
broker or dealer and qualifying the shares of the Portfolio under state
securities laws, including the preparation and printing of
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the registration statements and prospectuses for such purposes, allocable
communications expenses with respect to investor services, all expenses of
shareholders' and Board of Directors' meetings and preparing, printing and
mailing proxies, prospectuses and reports to shareholders; (j) brokers'
commissions, dealers' xxxx-ups and any issue or transfer taxes chargeable in
connection with the Portfolio's transactions; (k) the cost of stock
certificates representing shares of the Portfolio; (l) insurance expenses,
including, but not limited to, the cost of a fidelity bond, directors and
officers insurance and errors and omissions insurance; and (m) litigation and
indemnification expenses, expenses incurred in connection with mergers, and
other extraordinary expenses not incurred in the ordinary course of the
Portfolio's business.
5. Compensation. As compensation for the services performed and the facilities
and personnel provided by the Adviser pursuant to Section 1 of this Agreement,
the Fund, on behalf of the Portfolio, will pay to the Adviser, promptly after
the end of each month, a fee assessed at an annual rate of 1.25% of the average
daily net assets of the Portfolio during the month. If the Adviser shall serve
hereunder for less than the whole of any month, the fee hereunder shall be
prorated.
6. Purchase and Sale of Securities. The Adviser shall purchase securities from
or through and sell securities to or through such persons, brokers, or dealers
as the Adviser shall deem appropriate in order to carry out the policy with
respect to portfolio transactions as set forth in the Registration Statement and
the current Prospectus or Statement of Additional Information covering the
Portfolio, as amended from time to time, or as the Directors may direct from
time to time. Nothing herein shall prohibit the Directors from approving the
payment by the Fund of additional compensation to others for consulting
services, supplemental research and security and economic analysis.
7. Term of Agreement. This Agreement shall continue in effect with respect to
the Portfolio for a period of more than two years from the date hereof only so
long as such continuance is specifically approved at least annually in
conformity with the requirements of the Act with regard to investment advisory
contracts; provided, however, that this Agreement may be terminated at any time
without the payment of any penalty, on behalf of the Portfolio, by the Fund, by
the Board or, with respect to the Portfolio, by vote of a majority of the
outstanding voting securities (as defined in the Act) of the Portfolio, or by
the Adviser on not more than 60 days' nor less than 30 days' written notice to
the other party. This Agreement shall terminate automatically in the event of
its assignment (as defined in the Act).
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8. Miscellaneous. The Fund hereby agrees that if at any time the Adviser shall
cease to act as investment adviser to the Portfolio or to the Fund, or if at any
time during the continuation of this Agreement the Adviser shall change its name
to delete the reference to Xxxxxxx X. Xxxxxxxxx, the Fund shall take all steps
necessary under law to change its corporate name to delete the reference to
Xxxxxxx X. Xxxxxxxxx or to delete the reference to Xxxxxxxxx from the name of
the Portfolio, and shall thereafter refrain from using such name with reference
to the Portfolio and, if applicable, the Fund.
This Agreement contains the entire agreement between the parties hereto and
supersedes all prior agreements, understandings and arrangements with respect to
the subject matter hereof. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require, or
to impose any duty upon, either of the parties to do anything in violation of
any applicable laws or regulations.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolio, and the Adviser have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXX X. XXXXXXXXX & CO., INC.
By: Xxxxx X. Xxxxxxx, Chairman
XXXXXXX X. XXXXXXXXX FUND, INC.
By: Xxxx Xxxxx Xxxx, Secretary
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