INVESTMENT MANAGEMENT SERVICES AGREEMENT
AMENDED AND RESTATED
This Agreement, dated as of November 7, 2008, amended and restated June 29,
2009, 2009, is by and between RiverSource Investments, LLC (the "Investment
Manager"), a Minnesota limited liability company and Xxxxxxxx Capital Fund, Inc.
(the "Fund"), a Maryland corporation.
PART ONE: INVESTMENT MANAGEMENT AND OTHER SERVICES
(1) The Fund hereby retains the Investment Manager, and the Investment Manager
hereby agrees, for the period of this Agreement and under the terms and
conditions hereinafter set forth, to furnish the Fund continuously with
investment advice; to determine, consistent with the Fund's investment
objectives and policies, which securities in the Investment Manager's
discretion shall be purchased, held or sold, and to execute or cause the
execution of purchase or sell orders; to prepare and make available to the
Fund all necessary research and statistical data in connection therewith;
to furnish all other services of whatever nature required in connection
with the management of the Fund as provided under this Agreement; and to
pay such expenses as may be provided for in Part Three; subject always to
the direction and control of the Board of Directors (the "Board") and the
authorized officers of the Fund. The Investment Manager agrees to maintain
an adequate organization of competent persons to provide the services and
to perform the functions herein mentioned and to maintain adequate
oversight over any service providers including subadvisers hired to provide
services and to perform the functions herein mentioned. The Investment
Manager agrees to meet with any persons at such times as the Board deems
appropriate for the purpose of reviewing the Investment Manager's
performance under this Agreement. The Fund agrees that the Investment
Manager may subcontract for certain of the services described under this
Agreement with the understanding that there shall be no diminution in the
quality or level of services and also with the understanding, that the
Investment Manager shall obtain such approval from the Fund's Board and/or
its shareholders as is required by law, rules and regulations promulgated
thereunder, terms of the Agreement, resolutions of the Board and
commitments of the Investment Manager.
(2) The Investment Manager agrees that the investment advice and investment
decisions will be in accordance with general investment policies of the
Fund as disclosed to the Investment Manager from time to time by the Fund
and as set forth in the prospectus and registration statement filed with
the United States Securities and Exchange Commission (the "SEC").
(3) The Investment Manager agrees to provide such support as required or
requested by the Board in conjunction with voting proxies solicited by or
with respect to the issuers of securities in which the Fund's assets may be
invested from time to time. In the event that the Board, in its sole
discretion, delegates proxy voting authority to the Investment Manager, the
Investment Manager will determine how voting and
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other rights with respect to securities in which the Fund's assets may be
invested from time to time will be exercised, subject to the control of the
Board. Absent such a delegation, the Board will exercise sole voting power
with respect to all such proxies.
(4) The Investment Manager agrees that it will maintain all required records,
memoranda, instructions or authorizations relating to the management of the
assets for the Fund including the acquisition or disposition of securities,
proxy voting and safekeeping of assets.
(5) The Fund agrees that it will furnish to the Investment Manager any
information that the latter may reasonably request with respect to the
services performed or to be performed by the Investment Manager under this
Agreement.
(6) In selecting broker-dealers for execution, the Investment Manager will seek
to obtain best execution for securities transactions on behalf of the Fund,
except where otherwise directed by the Board. In selecting broker-dealers
to execute transactions, the Investment Manager will consider not only
available prices (including commissions or xxxx-up), but also other
relevant factors such as, without limitation, the characteristics of the
security being traded, the size and difficulty of the transaction, the
execution, clearance and settlement capabilities as well as the reputation,
reliability, and financial soundness of the broker-dealer selected, the
broker-dealer's risk in positioning a block of securities, the
broker-dealer's execution service rendered on a continuing basis and in
other transactions, the broker-dealer's expertise in particular markets,
and the broker-dealer's ability to provide research services. To the extent
permitted by law, and consistent with its obligation to seek best
execution, the Investment Manager may execute transactions or pay a
broker-dealer a commission or markup in excess of that which another
broker-dealer might have charged for executing a transaction provided that
the Investment Manager determines, in good faith, that the execution is
appropriate or the commission or markup is reasonable in relation to the
value of the brokerage and/or research services provided, viewed in terms
of either that particular transaction or the Investment Manager's overall
responsibilities with respect to the Fund and other clients for which it
acts as investment adviser. The Investment Manager shall not consider the
sale or promotion of shares of the Fund, or other affiliated products, as a
factor in the selection of broker-dealers through which transactions are
executed.
(7) Except for bad faith, intentional misconduct or negligence in regard to the
performance of its duties under this Agreement, neither the Investment
Manager, nor any of its respective directors, officers, partners,
principals, employees, or agents shall be liable for any acts or omissions
or for any loss suffered by the Fund or its shareholders or creditors. Each
of the Investment Manager, and its respective directors, officers,
partners, principals, employees and agents, shall be entitled to rely, and
shall be protected from liability in reasonably relying, upon any
information or instructions furnished to it (or any of them as individuals)
by the
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Fund or its agents which is believed in good faith to be accurate and
reliable. The Fund understands and acknowledges that the Investment Manager
does not warrant any rate of return, market value or performance of any
assets in the Fund. Notwithstanding the foregoing, the federal securities
laws impose liabilities under certain circumstances on persons who act in
good faith and, therefore, nothing herein shall constitute a waiver of any
right which the Fund may have under such laws or regulations.
PART TWO: COMPENSATION TO THE INVESTMENT MANAGER
(1) The Fund agrees to pay to the Investment Manager, and the Investment
Manager covenants and agrees to accept from the Fund in full payment for
the services furnished, a fee as set forth in Schedule A.
(2) The fee shall be paid on a monthly basis and, in the event of the
termination of this Agreement, in whole or in part with respect to any
Fund, the fee accrued shall be prorated on the basis of the number of days
that this Agreement is in effect during the month with respect to which
such payment is made.
(3) The fee provided for hereunder shall be paid in cash by the Fund to the
Investment Manager within five business days after the last day of each
month.
PART THREE: ALLOCATION OF EXPENSES
(1) The Fund agrees to pay:
(a) Fees payable to the Investment Manager for its services under the
terms of this Agreement.
(b) Taxes.
(c) Brokerage commissions and charges in connection with the purchase and
sale of assets.
(d) Custodian fees and charges.
(e) Premium on the bond required by Rule 17g-1 under the Investment
Company Act of 1940.
(f) Fees and expenses of attorneys (i) it employs in matters not involving
the assertion of a claim by a third party against the Fund, its Board
members and officers, (ii) it employs in conjunction with a claim
asserted by the Board against the Investment Manager, except that the
Investment Manager shall reimburse the Fund for such fees and expenses
if it is ultimately determined by a court of competent jurisdiction,
or the Investment Manager agrees, that it is liable in whole or in
part to the Fund, (iii) it employs to assert a claim against a third
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party, and (iv) it or the Investment Manager employs, with the
approval of the Board, to assist in the evaluation of certain
investments or other matters related to the management of the Fund.
(g) Fees paid for the qualification and registration for public sale of
the securities of the Fund under the laws of the United States and of
the several states in which such securities shall be offered for sale.
(h) Fees of consultants employed by the Fund.
(i) Board member, officer and employee expenses which shall include fees,
salaries, memberships, dues, travel, seminars, pension, profit
sharing, and all other benefits paid to or provided for Board members,
officers and employees, directors and officers liability insurance,
errors and omissions liability insurance, worker's compensation
insurance and other expenses applicable to the Board members, officers
and employees, except the Fund will not pay any fees or expenses of
any person who is an officer or employee of the Investment Manager or
its affiliates.
(j) Filing fees and charges incurred by the Fund in connection with filing
any amendment to its organizational documents, or incurred in filing
any other document with the state where the Fund is organized or its
political subdivisions.
(k) Organizational expenses of the Fund.
(l) Expenses incurred in connection with lending portfolio securities of
the Fund.
(m) Expenses properly payable by the Fund, approved by the Board.
(n) Other expenses payable by the Fund pursuant to separate agreement of
the Fund and any of its service providers.
(2) Unless the Fund is obligated to pay an expense pursuant to Part Three,
Section I, above, the Investment Manager agrees to pay all expenses
associated with the services it provides under the terms of this Agreement.
PART FOUR: MISCELLANEOUS
(1) The Investment Manager shall be deemed to be an independent contractor and,
except as expressly provided or authorized in this Agreement, shall have no
authority to act for or represent the Fund.
(2) A "full business day" shall be as defined in the By-laws of the Fund.
(3) The Fund acknowledges that the Investment Manager and its affiliates may
perform investment advisory services for other clients, so long as the
Investment Manager's
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services to the Fund under this Agreement are not impaired thereby. The
Investment Manager and its affiliates may give advice or take action in the
performance of duties to other clients that may differ from advice given,
or the timing and nature of action taken, with respect to the Fund, and
that the Investment Manager and its affiliates may trade and have positions
in securities of issuers where the Fund may own equivalent or related
securities, and where action may or may not be taken or recommended for the
Fund. Nothing in this Agreement shall be deemed to impose upon the
Investment Manager or any of its affiliates any obligation to purchase or
sell, or recommend for purchase or sale for the Fund, any security or any
other property that the Investment Manager or any of its affiliates may
purchase, sell or hold for its own account or the account of any other
client. Notwithstanding any of the foregoing, the Investment Manager shall
allocate investment opportunities among its clients, including the Fund, in
an equitable manner, consistent with its fiduciary obligations. By reason
of their various activities, the Investment Manager and its affiliates may
from time to time acquire information about various corporations and their
securities. The Fund recognizes that the Investment Manager and its
affiliates may not always be free to divulge such information, or to act
upon it.
(4) Neither this Agreement nor any transaction pursuant hereto shall be
invalidated or in any way affected by the fact that Board members,
officers, agents and/or shareholders of the Fund are or may be interested
in the Investment Manager or any successor or assignee thereof, as
directors, officers, stockholders or otherwise; that directors, officers,
stockholders or agents of the Investment Manager are or may be interested
in the Fund as Board members, officers, shareholders, or otherwise; or that
the Investment Manager or any successor or assignee, is or may be
interested in the Fund as shareholder or otherwise, provided, however, that
neither the Investment Manager, nor any officer, Board member or employee
thereof or of the Fund, shall sell to or buy from the Fund any property or
security other than shares issued by the Fund, except in accordance with
applicable regulations or orders of the SEC.
(5) Any notice under this Agreement shall be given in writing, addressed, and
delivered, or mailed postpaid, to the party to this Agreement entitled to
receive such, at such party's principal place of business in Minneapolis,
Minnesota, or to such other address as either party may designate in
writing mailed to the other.
(6) The Investment Manager agrees that no officer, director or employee of the
Investment Manager will deal for or on behalf of the Fund with himself as
principal or agent, or with any corporation or partnership in which he may
have a financial interest, except that this shall not prohibit:
(a) Officers, directors or employees of the Investment Manager from having
a financial interest in the Fund or in the Investment Manager.
(b) The purchase of securities for the Fund, or the sale of securities
owned by the Fund, through a security broker or dealer, one or more of
whose partners,
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officers, directors or employees is an officer, director or employee
of the Investment Manager, provided such transactions are handled in
the capacity of broker only and provided commissions charged do not
exceed customary brokerage charges for such services.
(c) Transactions with the Fund by a broker-dealer affiliate of the
Investment Manager as may be allowed by rule or order of the U.S.
Securities and Exchange Commission and if made pursuant to procedures
adopted by the Board.
(7) The Investment Manager agrees that, except as herein otherwise expressly
provided or as may be permitted consistent with the use of a broker-dealer
affiliate of the Investment Manager under applicable provisions of the
federal securities laws, neither it nor any of its officers, directors or
employees shall at any time during the period of this Agreement, make,
accept or receive, directly or indirectly, any fees, profits or emoluments
of any character in connection with the purchase or sale of securities
(except shares issued by the Fund) or other assets by or for the Fund.
(8) All information and advice furnished by the Investment Manager to the Fund
under this Agreement shall be confidential and shall not be disclosed to
third parties, except as required by law, order, judgment, decree, or
pursuant to any rule, regulation or request of or by any government, court,
administrative or regulatory agency or commission, other governmental or
regulatory authority or any self-regulatory organization. All information
furnished by the Fund to the Investment Manager under this Agreement shall
be confidential and shall not be disclosed to any unaffiliated third party,
except as permitted or required by the foregoing, where it is necessary to
effect transactions or provide other services to the Fund, or where the
Fund requests or authorizes the Investment Manager to do so. The Investment
Manager may share information with its affiliates in accordance with its
privacy policies in effect from time to time.
(9) This Agreement shall be governed by the laws of the State of Minnesota.
PART FIVE: RENEWAL AND TERMINATION
(1) This Agreement shall continue in effect for two years or until a new
agreement is approved by a vote of the majority of the outstanding shares
of the Fund and by vote of the Board, including the vote required by (b) of
this paragraph, and if no new agreement is so approved, this Agreement
shall continue from year to year thereafter unless and until terminated by
either party as hereinafter provided, except that such continuance shall be
specifically approved at least annually (a) by the Board or by a vote of
the majority of the outstanding shares of the Fund and (b) by the vote of a
majority of the Board members 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. As used in this paragraph, the
term "interested person" shall have the same meaning as set forth in the
Investment Company Act of 1940, as amended, and the rules promulgated
thereunder (the "1940 Act"). As used in this
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agreement, the term "majority of the outstanding shares of the Fund" shall
have the same meaning as set forth in the 1940 Act.
(2) This Agreement may be terminated, with respect to each underlying series of
the Fund, by either the Fund or the Investment Manager at any time by
giving the other party 60 days' written notice of such intention to
terminate, provided that any termination shall be made without the payment
of any penalty, and provided further that termination may be effected
either by the Board or by a vote of the majority of the outstanding voting
shares of the Fund.
(3) This Agreement shall terminate in the event of its assignment, the term
"assignment" for this purpose having the same meaning as set forth in the
1940 Act.
(4) Non-material amendments or modifications to this Agreement as may be
permitted by the 1940 Act will only be made effective upon written
agreement executed by the Investment Manager and the Board.
IN WITNESS THEREOF, the parties hereto have executed the foregoing Agreement as
of the day and year first above written.
XXXXXXXX CAPITAL FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
RIVERSOURCE INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Investment
Officer
SCHEDULE A
ASSET CHARGE
The asset charge for each calendar day of each year shall be equal to the total
of 1/365th (1/366th in each leap year) of the amount computed in accordance with
the fee schedule in the table, below:
ANNUAL RATE AT
FUND NET ASSETS EACH ASSET LEVEL
---- ---------------- ----------------
Xxxxxxxx Capital Fund, Inc. First $1 billion 0.805%
Next $1 billion 0.765%
Over $2 billion 0.715%
The computation shall be made for each calendar day on the basis of net assets
as of the close of the preceding day. In the case of the suspension of the
computation of net asset value, the fee for each calendar day during such
suspension shall be computed as of the close of business on the last full day on
which the net assets were computed. Net assets as of the close of a full day
shall include all transactions in shares of the Fund recorded on the books of
the Fund for that day.
