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Ex-99.g(1)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 12th day of October 1989, by and between
XXXXXXX XXXXX PRIME FUND, INC., a Maryland corporation
(hereinafter referred to as the "Fund"), and XXXXXXX XXXXX ASSET
MANAGEMENT, INC., a Delaware corporation (hereinafter referred to
as the "Investment Adviser").
W I T N E S S E T H:
WHEREAS, the Fund intends to engage in business as a
closed-end, non-diversified, management investment company and is
registered as such under the Investment Company Act of 1940, as
amended (hereinafter referred to as the "Investment Company
Act"); and
WHEREAS, the Investment Adviser is engaged principally in
rendering management and investment advisory services and is
registered as an investment adviser under the Investment
Adviser's Act of 1940; and
WHEREAS, the Fund desires to retain the Investment Adviser
to provide management and investment advisory services to the
Fund in the manner and on the terms hereinafter set forth; and
WHEREAS, the Investment Adviser is willing to provide
management and investment advisory services to the Fund an the
terms and conditions hereinafter set forth;
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NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, the Fund and the Investment
Adviser hereby agree as follows:
ARTICLE I
Duties of the Investment Adviser
The Fund hereby employs the Investment Adviser to act as
investment adviser of the Fund and to furnish, or arrange for
affiliates to furnish, the investment advisory services described
below, subject to the polices of, review by and overall control
of the Board of Directors of the Fund, for the period and on the
terms and conditions set forth in this Agreement. The Investment
Adviser hereby accepts such employment and agrees during such
period, at its own expense, to render, or arrange for the
rendering of, such services and to assume the obligations herein
set forth for the compensation provided for herein. The
Investment 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 Fund in any way or otherwise be deemed
agents of the Fund.
(a) Administrative Services. The Investment Adviser shall
perform (or arrange for the performance by affiliates of) the
management and administrative services necessary for the
operation of the Fund including administering shareholder
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accounts and handling shareholder relations pursuant to an
Administration Agreement of even date herewith.
(b) Investment Advisory Services. The Investment Adviser
shall provide the Fund with such investment research, advice and
supervision as the latter may from time to time consider
necessary for the proper supervision of the assets of the Fund,
shall furnish continuously an investment program for the Fund and
shall determine from time to time which securities shall be
purchased, sold or exchanged and what portion of the assets of
the Fund shall be held in the various securities in which the
Fund invests or cash, subject always to the restrictions of the
Articles of Incorporation and By-Laws of the Fund, as amended
from time to time, the provisions of the Investment Company Act
and the statements relating to the Fund's investment objectives,
investment policies and investment restrictions as the same are
set forth in filings made by the Fund under the Federal
securities laws. The Investment Adviser shall make decisions for
the Fund as to the 'manner in which voting rights, rights to
consent to corporate action and any other rights pertaining to
the Fund's portfolio securities shall be exercised. Should the
Board of Directors at any time, however, make any definite
determination as to investment policy and notify the Investment
Adviser thereof in writing, the Investment Adviser shall be bound
by such determination for the period, if any, specified in such
notice or until similarly notified that such determination has
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been revoked. The Investment Adviser shall take, on behalf of
the Fund, 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 Fund's account with brokers or
dealers selected by it, and to that end, the Investment Adviser
is authorized as the agent of the Fund to give instructions to
the Custodian of the Fund as to deliveries of securities and
payments of cash for the account of the Fund. In connection with
the selection of such brokers or dealers and the placing of such
orders with respect to assets of the Fund, the Investment Adviser
is directed at all times to seek to obtain execution and prices
within the policy guidelines determined by the Board of Directors
and set forth in filings made by the Fund under the Federal
securities laws. Subject to this requirement and the provisions
of the Investment Company Act, the Securities Exchange Act of
1934, as amended, and other applicable provisions of law, the
Investment Adviser may select brokers or dealers with which it or
the Fund is affiliated.
ARTICLE II
Allocation of Charges and Expenses
(a) The Investment Adviser. The Investment Adviser
assumes and shall pay for maintaining the staff and personnel
necessary to perform its obligations under this Agreement, and
shall at its own expense, provide the office space, facilities,
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equipment and necessary personnel which it is obligated to
provide under Article I hereof, and shall pay all compensation of
officers of the Fund and all Directors of the Fund who are
affiliated persons of the Investment Adviser.
(b) The Fund. The Fund assumes and shall pay or cause to
be paid all other expenses of the Fund including, without
limitation: taxes, expenses for legal and auditing services,
costs of printing proxies, stock certificates, shareholder
reports, prospectuses, charges of the custodian, any subcustodian
and transfer agent, expenses of portfolio transactions,
Securities and Exchange Commission fees, expenses of registering
the shares under Federal, state and foreign laws, fees and actua
out-of-pocket expenses of Directors who are not affiliated
persons of the Investment Adviser, accounting and pricing costs
(including the calculation of the net asset value), insurance,
interest, brokerage costs, litigation and other extraordinary or
non-recurring expenses, and other expenses properly payable by
the Fund. It is also understood that the Fund will reimburse the
Investment Adviser for its costs in providing accounting services
to the Fund.
ARTICLE III
Compensation of the Investment Adviser
(a) Investment Advisory Fee. For the services rendered,
the facilities furnished and expenses assumed by the Investment
Adviser, the Fund shall pay to the Investment Adviser at the end
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of each calendar month a fee based on the average daily value of
the net assets of the Fund at the annual rate of 0.95 of 1.0% of
the average daily net assets of the Fund, commencing on the day
following effectiveness hereof, as determined and computed in
accordance with the description of the determination of net asset
value contained in the, Prospectus of the Fund. 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. Subject to the provisions of subsection (b) hereof,
payment of the Investment Adviser's compensation for the
preceding month shall be made as promptly as possible after
completion of the computations contemplated by subsection (b)
hereof. During any period when the determination of net asset
value is suspended by the Board of Directors, the average net
asset value of a share for the day prior to such suspension shall
for this purpose be deemed to be the net asset value each
succeeding day until it is again determined.
(b) Expense Limitations. In the event the operating
expenses of the Fund, including amounts payable to the Investment
Adviser pursuant to subsection (a) hereof, for any fiscal year
ending on a date on which this Agreement is in effect exceed the
expense limitations applicable to the Fund imposed by applicable
state securities laws or regulations thereunder, as such
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limitations may be raised, lowered or waived from time to time,
the Investment Adviser shall reduce its investment advisory fee
by the extent of such excess and, if required pursuant to any
such laws or regulations, will reimburse the Fund in the amount
of such excess; provided, however, to the extent permitted by
law, there shall be excluded from such expenses the amount of any
interest, taxes, brokerage commissions and extraordinary expenses
(including but not limited to legal claims and liabilities and
litigation costs and any indemnification related thereto) paid or
payable by the Fund. Whenever the expenses of the Fund exceed a
pro rata portion of the applicable annual expense limitations,
the estimated amount of reimbursement under such limitations
shall be applicable as an offset against the monthly payment of
the fee due to the Investment Adviser. Should two or more such
expenses limitations be applicable as at the end of the last
business day of the month, that expense limitation which results
in the largest reduction in the Investment Adviser's fee shall be
applicable.
ARTICLE IV
Limitation of Liability of the Investment Adviser
The Investment 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
Fund, except for willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of
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reckless disregard of its obligations and duties hereunder. As
used in this Article IV, the term "Investment Adviser" shall
include any affiliates of the Investment Adviser performing
services for the Fund contemplated hereby and directors, officers
and employees of the Investment Adviser and such affiliates.
ARTICLE V
Activities of the Investment Adviser
The services of the Investment Adviser to the Fund are not
to be deemed to be exclusive: the Investment Adviser and any
person controlled by or under common control with the Investment
Adviser (for purposes of this Article V referred to as
"affiliates") are free to render services to others. It is
understood that Board of Directors, officers, employees and
shareholders of the Fund are or may become interested in the
Investment Adviser and its affiliates, as directors, officers,
employees, partners, and shareholders or otherwise and that
directors, officers, employees, partners, and shareholders of the
Investment Adviser and its affiliates are or may become similarly
interested in the Fund, and that the Investment Adviser and
directors, officers, employees, partners, and shareholders of its
affiliates may become interested in the Fund as shareholders or
otherwise.
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ARTICLE VI
Duration and Termination of this Agreement
This Agreement shall become effective as of the date first
above written and shall remain in force until September 30, 1991
and thereafter, but only so long as such continuance is
specifically approved at least annually by (i) the Board of
Directors of the Fund, or by the vote of a majority of the
outstanding voting securities of the Fund, 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 purpose of voting on such approval.
This Agreement may be terminated at any time, without the
payment of any penalty, by the Board of Directors or by vote of a
majority of the outstanding voting securities of the Fund, or by
the Investment Adviser, on sixty days' written notice to the
other party. This Agreement shall automatically terminate in the
event of its assignment.
ARTICLE VII
Amendments of this Agreement
This Agreement may be amended by the parties only if such
amendment is specifically approved by (i) the vote of a majority
of outstanding voting securities of the Fund, and (ii) a majority
of those Directors who are not parties to this Agreement or
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interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
ARTICLE VIII
Definitions of Certain Terms
The terms "vote of a 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 exemptions
as may be granted by the Securities and Exchange Commission under
said Act.
ARTICLE IX
Governing Law
This Agreement shall be construed in accordance with laws of
the State of New York 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.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
XXXXXXX XXXXX PRIME FUND, INC.
By /s/ XXXXXX XXXXXX
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ATTEST: /s/ XXXXXX XXXXXX
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Secretary
XXXXXX XXXXX ASSET MANAGEMENT, INC.
By /s/ XXXXX X. XXXXX
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Attest: /s/ XXXXXX X. XXXXXXXX
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Secretary
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