Exhibit - d
INVESTMENT ADVISORY CONTRACT
AGREEMENT, made by and between the Index Plus Fund, Inc., a Texas
Corporation, (hereinafter called "Fund") and Xxxxx Asset Advisors, LLC, a
Texas Limited Liability Company (hereinafter called "Investment Adviser")
WITNESSETH: WHEREAS, Fund engages in the business of investing and
reinvesting its assets and property in various stocks and securities and
Investment Adviser engages in the business of providing investment advisory
services.
1. The Fund hereby employs the Investment Adviser, for the period set forth
in Paragraph 7 hereof, and on the terms set forth herein, to act as the
Fund's transfer agent, dividend paying agent and render investment
advisory services to the Fund. The Investment Adviser hereby accepts such
employment and agrees, during such period, to render the services and
assume the obligations herein set forth, for the compensation provided.
The Investment Adviser shall, for all purposes herein, be deemed to be an
independent contractor, and shall, unless otherwise expressly provided and
authorized, have no authority to act for or represent the Fund in any way,
or in any way be deemed an agent of the Fund.
2. As a compensation for the services to be rendered to the Fund by the
Investment Adviser under the provisions of this Agreement, the Fund shall
pay to the Investment Adviser monthly a fee equal to one-twelfth of 1.25
percent per month (the equivalent of 1.25% per annum) of the daily average
net assets of the Fund during the month. The first payment of fee
hereunder shall be prorated on a daily basis from the date this Agreement
takes effect but may be waived by the Investment Adviser under special
circumstances.
3. The Investment Adviser will pay the start up expenses of the Fund and pay
all future operating expenses of the Fund, except brokerage fees and
commissions, interest, taxes, extraordinary legal expense and other
extraordinary expenses. The Investment Advisor will also pay any 12b-1
fees dues to any parties in connection with distribution of the Fund under
the Distribution Plan adopted by the Fund. The Investment Advisor agrees
to comply with Paragraph 7 of the Distribution Plan and report any fees
that it pays agents or other entities for activities attributable to Fund
shares so that any such payments can be included in calculating the total
amount of Distribution fees paid by the Fund. This agreement shall begin
when the Fund's registration becomes effective and remain in effect in
perpetuity.
4. It is expressly understood and agreed that the services to be rendered by
the Investment Adviser to the Fund under the provisions of this Agreement
are not to be deemed to be exclusive, and the Investment Adviser shall be
free to render different services to others so long as its ability to
render the services provided for in this Agreement shall not be impaired
thereby.
5. It is understood and agreed that directors, officers, employees, agents
and shareholders of the Fund may be interested in the Investment Adviser
as directors, officers, employees, agents and shareholders, and that
directors, officers, employees, agents and shareholders of the Investment
Adviser may be interested in the Fund, as directors, officers, employees,
agents and shareholders or otherwise, and that the Investment Adviser,
itself, may be interested in the Fund as a shareholder or otherwise,
specifically, it is understood and agreed that directors, officers,
employees, agents and shareholders of the Investment Adviser may continue
as directors, officers, employees, agents and shareholders of the Fund;
that the Investment Adviser, its directors, officers, employees, agents
and shareholders may engage in other business, may render investment
advisory services to other investment companies, or to any other
corporation, association, firm or individual, may render underwriting
services to the Fund, or to any other investment company, corporation,
association, form or individual. The Investment Advisor shall bear
expenses and salaries necessary and incidental to the conduct of the
Fund's business, including but not in limitation of the foregoing, the
costs incurred in the maintenance of its own books, records, and
procedures; dealing with its own shareholders; the payment of dividends;
transfers of stock (including issuance & redemption of shares); reports
and notices to shareholders; expenses of annual stockholders meetings;
miscellaneous office expenses; and custodian, legal, accounting and
registration fees. The Fund shall bear expenses including brokerage
commissions, interest expense, taxes and extraordinary legal expense.
Employees, officers and agents of the Investment Adviser who are, or may
in the future be, directors and/or senior officers of the Fund shall
receive no remuneration from the Fund or acting in such capacities for the
Fund. In the conduct of the respective businesses of the parties hereto
and in the performance of this agreement, the Fund and the Investment
Adviser may share common facilities and personnel common to each, with
appropriate proration of expenses.
6. Investment Adviser shall give the Fund the benefit of its best judgment
and efforts in rendering these services, and Fund agrees as an inducement
to the undertaking of these services that Investment Adviser shall not be
liable hereunder for any mistake of judgment or any event whatsoever,
provided that nothing herein shall be deemed to protect, or purport to
protect, Investment Adviser against any liability to Fund or to its
security holders to which Investment Adviser would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder, or by reason of reckless disregard of
obligations and duties hereunder.
7. This agreement shall become effective August 1, 2002 and continue in
effect until August 1, 2003 and, thereafter, only so long as such
continuance is approved at least annually by votes of the Fund's Board of
Directors cast in person at a meeting called for the purpose of voting on
such approval, including votes of a majority of the Directors who are not
parties to such agreement or interested persons of any such party. This
agreement may be terminated at any time upon 60 days prior written notice,
without payment of any penalty, by the Fund's Board of Directors or by
vote of a majority of the outstanding voting securities of the Fund. The
contract will automatically terminate in the event of its assignment by
the Investment Adviser (within the meaning of the Investment Company Act
of 1940), which shall be deemed to include transfer of control of the
Investment Adviser. Upon termination of this agreement, the obligations of
all parties hereunder shall cease and terminate as of the date of such
termination, except for any obligation to respond for a breach of this
Agreement committed prior to such termination and except for the
obligation of the Fund to pay to the Investment Adviser the fee provided
in Paragraph 2 hereof, prorated to the date of termination.
8. This Agreement shall not be assigned by the Fund without prior written
consent thereto of the Investment Adviser. This Agreement shall terminate
automatically in the event of its assignment by the Investment Adviser
unless an exemption from such automatic termination is granted by order or
rule of the Securities and Exchange Commission.
IN WITNESS WHEREOF, the parties hereto have caused their corporate seals to
be affixed and duly attested and their presence to be signed by their duly
authorized officers this 16th day of July, 2002.
Index Plus Fund, Inc. By: /s/ Xxxxx X. Xxxxx, Pres.
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Xxxxx X. Xxxxx, President
Xxxxx Asset Advisors, LLC By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx,
Managing Member
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