Exhibit (5)(a)(2) Investment Management Agreement
Registrant, on behalf of International Value Portfolio, and Xxxxxxxxx
XXXXXXX X. XXXXXXXXX FUND, INC.
INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT, dated as of March 18, 1992 between XXXXXXX X.
XXXXXXXXX FUND, INC., a Maryland Corporation, (the "Fund"), on behalf of the
Xxxxxxxxx International 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 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. 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 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 1.00 of 1% 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).
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: Xxxxxx X. Xxxxxxxxx, Chairman
XXXXXXX X. XXXXXXXXX FUND, INC.
By: Xxxxxx X. Xxxxxx, Senior Vice President
