INVESTMENT ADVISORY AGREEMENT
THE BEAR ▇▇▇▇▇▇▇ FUNDS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
June 2, 1997
Bear ▇▇▇▇▇▇▇ Funds Management Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The above-named investment company (the "Fund"), with respect
to the series named on Schedule 1 hereto, as such Schedule may be revised from
time to time (each, a "Series"), herewith confirms its agreement with you as
follows:
The Fund desires to employ its capital by investing and
reinvesting the same in investments of the type and in accordance with the
limitations specified in its charter documents and in its offering documents
(Part A and Part B) as from time to time in effect, copies of which have been or
will be submitted to you, and in such manner and to such extent as from time to
time may be approved by the Fund's Board. The Fund desires to employ you to act
as its investment adviser.
You may render services through your own employees or the
employees of one or more affiliated companies that are qualified to act as an
investment adviser to the Fund under applicable laws and are under your common
control as long as all such persons are functioning as part of an organized
group of persons, and such organized group of persons, with respect to the
services used by the Fund, is managed at all times by your authorized officers.
You will be as fully responsible to the Fund for the acts and omissions of such
persons as you are for your own acts and omissions.The compensation of such
person or persons shall be paid by you and no obligation may be incurred on the
Fund's behalf in any such respect.
Subject to the supervision and approval of the Fund's Board,
you will provide investment management of each Series' portfolio in accordance
with such Series' investment objectives and policies as stated in the Fund's
offering documents (Part A and Part B) as from time to time in effect. In
connection, therewith, you will obtain and provide investment research and will
supervise each Series' investments and conduct a continuous program of
investment, evaluation and, if appropriate, sale and reinvestment of such Series
assets. You will furnish to the Fund such statistical information, with respect
to the investments which a Series may hold or contemplate purchasing, as the
Fund may reasonably request. The Fund wishes to be informed of important
developments materially affecting any Series' portfolio and shall expect you, on
your own initiative, to furnish to the Fund from time to time such information
as you may believe appropriate for this purpose.
You shall exercise your best judgment in rendering the
services to be provided to the Fund hereunder, and the Fund agrees as an
inducement to your undertaking the same that you shall not be liable hereunder
for any error of judgment or mistake of law or for any loss suffered by one or
more Series, provided that nothing herein shall be deemed to protect or purport
to protect you against any liability to the Fund or a Series or to its security
holders to which you would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence in the performance of your duties
hereunder or by reason of your reckless disregard of your obligations or duties
hereunder (hereinafter "Disabling Conduct") would otherwise be subject by reason
of Disabling Conduct.
In consideration of services rendered pursuant to this
Agreement, the Fund will pay you on the first business day of each month a fee
at the rate set forth opposite each Series' name on Schedule 1 hereto or will
pay you in accordance with the methodology described on additional Schedules
hereto. Net asset value shall be computed on such days and at such time or times
as described in the Fund's then-current Part A and Part B. The fee for the
period from the date of the commencement of sales of a Series' shares (after any
sales are made to you) to the end of the month during which such sales shall
have been commenced shall be pro-rated according to the proportion which such
period bears to the full monthly period, and upon any termination of this
Agreement before the end of any month, the fee for such part of a month shall be
pro-rated according to the proportion which such period bears to the full
monthly period and shall be payable upon the date of termination of this
Agreement.
For the purpose of determining fees payable to you, the value
of each Series' net assets shall be computed in the manner specified in the
Fund's charter documents for the computation of the value of each Series' net
assets.
You will bear all expenses in connection with the performance
of your services under this Agreement. All other expenses to be incurred in the
operation of the Fund will be borne by the Fund, except to the extent
specifically assumed by you. The expenses to be borne by the Fund include,
without limitation, the following: organizational costs, taxes, interest, loan
commitment fees, interest and distributions paid on securities sold short,
brokerage fees and commissions, if any, fees of Board members, Securities and
Exchange Commission fees, state Blue Sky qualification fees, advisory,
administration and fund accounting fees, charges of custodians, transfer and
dividend disbursing agents fees, certain insurance premiums, industry
association fees, outside auditing and legal expenses, costs of independent
pricing services, costs of maintaining the Series' existence, costs attributable
to investor services (including, without limitation, telephone and personnel
expenses), costs of preparing and printing prospectuses and statements of
additional information for regulatory
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purposes and for distribution to existing shareholders, costs of shareholders'
reports and meetings, and any extraordinary expenses.
The Fund understands that you now act, and that from time to
time hereafter you may act, as investment adviser to one or more other
investment companies and fiduciary or other managed accounts, and the Fund has
no objection to your so acting, provided that when the purchase or sale of
securities of the same issuer is suitable for the investment objectives of two
or more companies or accounts managed by you which have available funds for
investment, the available securities will be allocated in a manner believed by
you to be equitable to each company or account. It is recognized that in some
cases this procedure may adversely affect the price paid or received by one or
more Series or the size of the position obtainable for or disposed of by one or
more Series.
In addition, it is understood that the persons employed by you
to assist in the performance of your duties hereunder will not devote their full
time to such service and nothing contained herein shall be deemed to limit or
restrict your right or the right of any of your affiliates to engage in and
devote time and attention to other businesses or to render services of whatever
kind or nature.
Any person, even though also your officer, director, partner,
employee or agent, who may be or become an officer, Board member, employee or
agent of the Fund, shall be deemed, when rendering services to the Fund or
acting on any business of the Fund, to be rendering such services to or acting
solely for the Fund and not as your officer, director, partner, employee, or
agent or one under your control or direction even though paid by you.
The Fund will indemnify you, your officers, directors,
employees and agents (each, an "indemnitee") against, and hold each indemnitee
harmless from, any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) not resulting from Disabling
Conduct by the indemnitee. Indemnification shall be made only following: (i) a
final decision on the merits by a court or other body before whom the proceeding
was brought that the indemnitee was not liable by reason of Disabling Conduct or
(ii) in the absence of such a decision, a reasonable determination, based upon a
review of the facts, that the indemnitee was not liable by reason of Disabling
Conduct by (a) the vote of a majority of a quorum of Board members who are
neither "interested persons" of the Fund nor parties to the proceeding
("disinterested non-party Board members") or (b) an independent legal counsel in
a written opinion. Each indemnitee shall be entitled to advances from the Fund
for payment of the reasonable expenses incurred by it in connection with the
matter as to which it is seeking indemnification in the manner and to the
fullest extent permissible under the New York Business Corporation Law. Each
indemnitee shall provide to the Fund a written affirmation of its good faith
belief that the standard of conduct necessary for indemnification by the Fund
has been met and a written undertaking to repay any such advance if it should
ultimately be determined that the standard of conduct has not been met. In
addition, at least one of the following additional conditions shall be met: (a)
the indemnitee shall provide security in form and amount acceptable to the Fund
for its undertaking; (b) the Fund is insured against losses arising by reason of
the advance; or (c) a
3
majority of a quorum of disinterested non-party Board members, or independent
legal counsel, in a written opinion, shall have determined, based on a review of
facts readily available to the Fund at the time the advance is proposed to be
made, that there is reason to believe that the indemnitee will ultimately be
found to be entitled to indemnification. No provision of this Agreement shall be
construed to protect any Board member or officer of the Fund, or any indemnitee,
from liability in violation of Sections 17(h) and (i) of the Investment Company
Act of 1940, as amended (the "1940 Act").
As to each Series, this Agreement shall continue until the
date set forth opposite such Series' name on Schedule 1 hereto (the "Reapproval
Date") and thereafter shall continue automatically for successive annual periods
ending on the day of each year set forth opposite the Series' name on Schedule 1
hereto (the "Reapproval Day"), provided such continuance is specifically
approved at least annually by (i) the Fund's Board; or (ii) vote of a majority
(as defined in the ▇▇▇▇ ▇▇▇) of such Series' outstanding voting securities,
provided that in either event its continuance also is approved by a majority of
the Fund's Board members who are not "interested persons" (as defined in the
▇▇▇▇ ▇▇▇) of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval. As to each Series, this
Agreement is terminable without penalty, on 60 days' notice, by the Fund's Board
or by vote of holders of a majority of such Series' shares or, upon not less
than 90 days' notice, by you. This Agreement also will terminate automatically,
as to the relevant Series, in the event of its assignment (as defined in the
1940 Act).
The Fund recognizes that from time to time your directors, officers and
employees may serve as trustees, directors, partners, officers and employees of
other business trusts, corporations, partnerships or other entities (including
other investment companies), and that such other entities may include the name
"Bear ▇▇▇▇▇▇▇" as part of their name, and that your corporation or its
affiliates may enter into investment advisory or other agreements with such
other entities. If you cease to act as the Fund's investment adviser, the Fund
agrees that, at your request, the Fund will take all necessary action to change
the name of the Fund to a name not including "Bear ▇▇▇▇▇▇▇" in any form or
combination of words.
This Agreement has been executed on behalf of the Fund by the
undersigned officer of the Fund in his capacity as an officer of the Fund. The
obligations of this Agreement shall only be binding upon the assets and property
of the relevant Series and shall not be binding upon any Board member, officer
or shareholder of the Fund individually.
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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,
THE BEAR ▇▇▇▇▇▇▇ FUNDS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
Accepted:
BEAR ▇▇▇▇▇▇▇ FUNDS MANAGEMENT INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
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SCHEDULE 1
Annual Fee as
a Percentage
of Average
Daily Net
Name of Series Assets Reapproval Date Reapproval Day
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Prime Money Portfolio .20 of 1% June 1, 1999 June 1st
