Exhibit 4(a)
FORM OF INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this ___ day of _________, 2004 between Xxxxxxx Xxxxx
Series Fund, Inc., a Maryland corporation (the "Company") on behalf of its
series [_________] Portfolio (the "Portfolio") and Xxxxxxx Xxxxx Investment
Managers, L.P., a Delaware limited partnership (the "Adviser");
W I T N E S S E T H:
WHEREAS, the Company is engaged in business as an open-end management
investment company and is registered under the Investment Company Act of 1940
(the "Investment Company Act"); and
WHEREAS, the Directors of the Company (the "Directors") are authorized to
establish separate series relating to separate portfolios of securities, each of
which may offer separate classes of shares; and
WHEREAS, the Directors have established and designated the Portfolio as a
series of the Company; and
WHEREAS, the Adviser is engaged principally in rendering management and
advisory services and is registered as an investment adviser under the
Investment Advisers Act of 1940; and
WHEREAS, the Company desires to retain the Adviser to provide management
and investment advisory services to the Portfolio, in the manner and on the
terms hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Adviser hereby agree as follows:
Article 1
Duties of the Adviser
The Company hereby employs the Adviser to act as the investment adviser to
and manager of the Portfolio and to furnish, or arrange for affiliates to
furnish, the management and investment advisory services described below,
subject to the supervision of the Directors, for the period and on the terms and
conditions set forth in this Agreement. The Adviser hereby accepts such
employment and agrees during such period, at its own expense, to render the
services and to assume the obligations herein set forth for the compensation
provided for herein. The Adviser and its affiliates shall for all purposes
herein be deemed to be independent contractors and shall, unless otherwise
expressly provided or authorized, have no authority to act for or represent the
Company or Portfolio in any way or otherwise be deemed agents of the Company or
Portfolio.
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(a) Investment Advisory Services. In acting as investment adviser to the
Portfolio, the Adviser shall provide (or arrange for affiliates to provide) the
Portfolio with such investment research, advice and supervision as the latter
may from time to time consider necessary for the proper supervision of the
Portfolio and shall furnish continuously an investment program and shall
determine from time to time what securities shall be purchased, sold or
exchanged and what portion of the assets of the Portfolio's portfolio shall be
held in the various securities and other financial instruments in which it may
invest or cash, subject always to the restrictions of the Company's Articles of
Incorporation and Bylaws, as amended from time to time, the provisions of the
Investment Company Act and the statements relating to the Portfolio's investment
objectives, investment policies and investment restrictions set forth in the
Portfolio's current prospectus and statement of additional information (the
"Registration Statement"). Should the Directors at any time, however, make any
definitive determination as to the investment policy of the Portfolio and notify
the Adviser thereof in writing, the Adviser shall be bound by such determination
for the period, if any, specified in such notice or until similarly notified
that such determination has been revoked. The Adviser shall take, on behalf of
the Company, all actions which it deems necessary to implement the investment
policies determined as provided above, and in particular to place all orders for
the purchase or sale of portfolio securities for the Portfolio with brokers or
dealers selected by it. In connection with the selection of such brokers or
dealers and the placing of such orders, the Adviser is directed at all times to
seek to obtain execution and price within the policy guidelines determined by
the Directors and set forth in the current Registration Statement. Subject to
this requirement and the provisions of the Investment Company Act, the
Securities Exchange Act of 1934, and other applicable provisions of law, the
Adviser may select brokers or dealers with which it or the Company is
affiliated.
(b) Administrative Services. In addition to the performance of investment
advisory services, the Adviser shall perform, or supervise the performance of,
administrative services in connection with the management of the Company insofar
as such services relate to and are required by the Portfolio. In this
connection, the Adviser agrees to (i) assist in supervising all aspects of the
Company's operations relating to the Portfolio, including the coordination of
all matters relating to the functions of the custodian, transfer agent, other
shareholder service agents, accountants, attorneys and other parties performing
services or operational functions for the Company relating to the Portfolio,
(ii) provide the Company, at the Adviser's expense, with services of persons
competent to perform such administrative and clerical functions as are necessary
in order to provide effective administration of the Company to the extent
required by the Portfolio, including duties in connection with shareholder
relations, reports, redemption requests and account adjustments and the
maintenance of certain books and records of the Company insofar as they relate
to the Portfolio, and (iii) provide the Company, at the Adviser's expense, with
adequate office space and related services necessary for its operations as
contemplated in the Agreement.
Article 2
Allocation of Charges and Expenses
(a) The Adviser. The Adviser assumes and shall pay for maintaining the
staff and personnel, and shall at its own expense provide the equipment, office
space and facilities,
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necessary to perform its obligations under this Agreement, and shall pay all
compensation of officers of the Company and the Directors of the Company who are
affiliated persons of Xxxxxxx Xxxxx & Co., Inc. or its subsidiaries.
(b) The Company. The Company assumes and shall pay all other expenses of
the Company and Portfolio, including, without limitation: insurance, taxes,
expenses for legal and auditing services, costs of printing proxies, stock
certificates, shareholder reports and prospectuses (except to the extent paid by
the Distributor), charges of the Custodian and Transfer Agent, expenses of
redemption of shares, Securities and Exchange Commission fees, expenses of
registering the shares under federal and state securities laws, fees and
expenses of Directors who are not affiliated persons of Xxxxxxx Xxxxx & Co.,
Inc. or its subsidiaries, accounting and pricing costs (including the daily
calculation of net asset value), interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and other expenses properly payable by
the Company. It is also understood that the Company shall reimburse the Adviser
or an affiliate of the Adviser for providing accounting services to the Company
and the Portfolio. The Distributor will pay certain of the expenses of the
Company incurred in connection with the continuous offering of shares of the
Portfolio.
Article 3
Compensation of the Adviser
Investment Advisory Fee. For the services rendered, the facilities
furnished and expenses assumed by the Adviser, the Company shall pay to the
Adviser at the end of each calendar month a fee at the annual rate of [___]% of
the average daily net assets of the Portfolio, as determined and computed in
accordance with the description of the method of determination of net asset
value contained in the Portfolio's Registration Statement.
If this Agreement becomes effective subsequent to the first day of a month
or shall terminate before the last day of a month, compensation for that part of
the month this Agreement is in effect shall be prorated in a manner consistent
with the calculation of the fee as set forth above. Payment of the Adviser's
compensation for the preceding month shall be made as promptly as possible after
completion of the computations contemplated above. During any period when the
determination of net asset value is suspended by the Directors, the net asset
value of a share as of the last business day prior to such suspension shall for
this purpose be deemed to be the net asset value at the close of each succeeding
business day until it is again determined.
Article 4
Limitation of Liability of the Adviser
The Adviser shall not be liable for any error of judgment or mistake of
law or for any loss arising out of any investment or for any act or omission in
the management of the Company and the Portfolio, except for willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason of
reckless disregard of its obligations and duties hereunder. As used in this
Article 4, the term "Adviser" shall include any affiliate of the Adviser
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performing services for the Company or the Portfolio contemplated hereby and
partners, directors, officers and employees of the Adviser and such affiliates.
Article 5
Activities of the Adviser
The services of the Adviser under this Agreement are not to be deemed
exclusive, and the Adviser shall be free to render services to others. It is
understood that Directors, officers, employees and shareholders of the Company
and the Portfolio are or may become interested in the Adviser and its
affiliates, as directors, officers, employees, partners or shareholders or
otherwise and that directors, officers, employees, partners or shareholders of
the Adviser and its affiliates are or may become similarly interested in the
Company or the Portfolio, and that the Adviser is or may become interested in
the Company or the Portfolio as shareholder or otherwise.
Article 6
Duration and Termination of this Agreement
This Agreement shall become effective as of the date first above written,
and shall remain in force for two years thereafter and thereafter, but only so
long as such continuance is specifically approved at least annually by (i) the
Directors, or by the vote of a majority of the outstanding shares of the
Portfolio, and (ii) a majority of those Directors who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purposes of voting on such approval.
This Agreement may be terminated at any time, as to the Portfolio, without
the payment of any penalty, by the Directors or by vote of a majority of the
outstanding shares of the Portfolio, or by the Adviser, on sixty days' written
notice to the other party. This Agreement shall automatically terminate in the
event of its assignment.
Article 7
Definitions
The terms "majority of the outstanding voting securities", "assignment",
"affiliated person" and "interested person", when used in this Agreement, shall
have the respective meanings specified in the Investment Company Act and the
rules and regulations thereunder, subject, however to such exceptions as may be
granted by the Securities and Exchange Commission under said Act.
Article 8
Amendments of this Agreement
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Directors of the Company, or by the vote of the
majority of
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outstanding shares of the Portfolio, and (ii) a majority of those Directors of
the Company 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
approval.
Article 9
Governing Law
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York as at the time in effect and
the applicable provisions of the Investment Company Act. To the extent that the
applicable laws of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Investment Company Act, the
latter shall control.
Article 10
Limitation of Obligations of the Portfolio
The obligations of the Portfolio shall be limited to the assets of the
Portfolio, shall be separate from the obligations of any other series of the
Company, and the Portfolio shall not be liable for the obligations of any other
Portfolio of the Company.
ATTEST: XXXXXXX XXXXX SERIES FUND, INC.
__________________________________ By: ___________________________________
Name: Name:
Title: Title:
XXXXXXX XXXXX INVESTMENT MANAGERS, L.P.
ATTEST: By: Princeton Services, Inc., its
general partner
__________________________________ By: ___________________________________
Name: Name:
Title: Title:
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