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INVESTMENT MANAGEMENT AGREEMENT Exhibit (5)
March 29, 0000
Xxxxx & Xx.
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Cowen Income + Growth Fund, Inc. ( the "Fund"), a corporation organized
under the laws of the State of Maryland, herewith confirms its agreement with
Xxxxx & Co. ("Cowen"), as follows:
1. Investment Description; Appointment
The Fund desires to employ its capital by investing and reinvesting in
investments of the kind and in accordance with the limitations specified in its
Articles of Incorporation, as amended, and in its Prospectus and Statement of
Additional Information as from time to time in effect, and in such manner and to
such extent as may from time to time be approved by the Board of Directors of
the Fund. Copies of the Fund's Prospectus, Statement of Additional Information
and Articles of Incorporation, as amended, have been or will be submitted to
Cowen. The Fund desires to employ and hereby appoints Cowen to act as its
investment manager. Cowen accepts the appointment and agrees to furnish the
services set forth below for the compensation set forth below.
3. Services as Investment Manager
Subject to the supervision and direction of the Board of Directors of the
Fund, Cowen will (a) act in strict conformity with the Fund's Articles of
Incorporation and by-laws, the Investment Company Act of 1940 and the Investment
Advisers Act of 1940, as the same may from time to time be amended, (b) manage
the Fund's portfolio in accordance with the Fund's investment objective and
policies as stated in its Prospectus and Statement of Additional Information as
from time to time in effect, (c) make general investment decisions for the Fund
including decisions concerning (i) the specific types of securities to be held
by the Fund and the proportion of the Fund's assets that should be allocated to
such investments during particular market cycles and (ii) the specific issuers
whose securities will be purchased or sold by the Fund, and (d) supply office
facilities (which may be in Xxxxx'x own offices); statistical and research data;
data processing services; clerical, accounting and bookkeeping services;
internal auditing and legal services; internal executive and administrative
services; stationary and office supplies; preparation of reports to shareholders
of the Fund; preparation of tax returns, reports to and filings with the
Securities and Exchange Commission and state Blue Sky authorities; calculation
of the net asset value of shares of the Fund; and general assistance in all
aspects of the Fund's operations. In providing those services. Cowen will
supervise the Fund's investments generally and conduct a continual program of
evaluation of the Fund's
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assets.
In connection with the performance of its duties under this Agreement, it
is understood that Cowen will from time to time employ or associate with itself
such person or persons as Cowen may believe to be particularly fitted to assist
it in the performance of this Agreement, it being understood that the
compensation of such person or persons shall be pan' by Cowen and that no
obligation may be incurred on the Fund's behalf in any such respect. Cowen, a
limited partnership formed under the laws of the State of New York, will notify
the Fund of any change in its membership within a reasonable time after such
change.
3. Information Pro Provided to toe Fund; Books and Records
(a) Cowen will keep the Fund informed of developments materially affecting
the Fund's portfolio, and will, on its own initiative, furnish the Fund from
time to time with whatever information Cowen believes is appropriate for this
purpose.
(b) In compliance with the requirements of Rule 31a-3 under the Investment
Company Act of 1940, Cowen hereby agrees that all records which it maintains for
the Fund are the property of the Fund and further agrees to surrender promptly
to the Fund any of such records upon the Fund's request.
4. Standard of Care
Cowen shall exercise its best judgment in rendering the services listed in
paragraph 2 above. Cowen shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates. provided that nothing herein shall be
deemed to protect or purport to protect Cowen against any liability to the Fund
or to its shareholders to which Cowen would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of Xxxxx'x reckless disregard of its
obligations and duties under this Agreement.
Any person, even though also a partner, officer, employee, or agent of
Cowen, who may be or become a Director, officer, 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 a Director, officer, employee, or agent or one under the control or
direction of Cowen even though paid by it.
5. Compensation
In consideration of the services rendered pursuant to this Agreement, the
Fund will pay Cowen on the first business day of each month a fee for the
previous month, calculated daily, at the annual rate of .75 of 1.00% of the
Fund's average daily net assets. Upon any termination of this Agreement before
the end of a month, the fee for such pan of that month shall be prorated
according to the proportion that 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
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Cowen, the value of the Fund's net assets shall be computed at the times and in
the manner specified in the Fund's Prospectus or Statement of Additional
Information as from time to time in effect.
6. Expenses
Cowen will bear all expenses in connection with the performance of its
services under this Agreement. The Fund will bear certain other expenses toe be
incurred in its operation, including: taxes, interest, brokerage fees and
commissions, if any, fees of directors of the fund who are not officers or
employees of Cowen; Securities and Exchange Commission fees and state Blue Sky
qualification fees; management, advisory and administration fees; distribution
expenses; charges of custodians and transfer and dividend disbursing agents;
certain insurance premiums; outside auditing and legal expenses; costs of
maintenance of corporate 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 purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders, officers or Board of
Directors of the Fund; and any extraordinary expenses.
7. Reimbursement to the Fund
If in any fiscal year the aggregate expenses of the Fund (including fees
pursuant to this Agreement, but excluding interest, taxes, brokerage and
distribution expenses and, if permitted by State securities commissions,
extraordinary expenses) exceed the expense limitation of any State having
jurisdiction over the Fund, Cowen will reimburse the Fund for such excess
expense. Xxxxx'x expense reimbursement obligation will be limited to the amount
of its fees received pursuant to this Agreement However, Cowen shall reimburse
the Fund for such excess expenses regardless of the amount of fees paid to it
during such fiscal year to the extent that the securities regulations of any
state in which Fund shares are registered and qualified for sale so require.
Such expense reimbursement, if any, will be estimated, reconciled and paid on a
monthly basis.
8. Services to Other Companies or Accounts
The Fund understands that Cowen now acts and will continue to act as
investment adviser to fiduciary and other managed accounts and now acts and will
continue to act as investment manager, investment adviser, sub-investment
adviser and/or administrator to one or more other investment companies, and the
Fund has no objection to Xxxxx'x so acting, provided that whenever the Fund and
one or more other accounts or investment companies advised by Cowen have
available funds for investment, investments suitable and appropriate for each
will be allocated in a manner believed to be equitable to each entity. The Fund
recognizes that in some cases this procedure may adversely affect the size of
the position obtainable for the Fund. In addition, the Fund understands that the
persons employed by Cowen to assist in the performance of Xxxxx'x duties
hereunder will not devote their full time to such service and nothing contained
herein shall be deemed to limit or restrict the right of Cowen or any affiliate
of Cowen to engage in and devote time and attention to other businesses or to
render services of whatever kind or nature.
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9. Term of Agreement
This Agreement shall become effective on the date first written above and
shall continue until the second anniversary of that date and thereafter shall
continue so long as such continuance is specifically approved at least annually
by (a) the Board of Directors of the Fund or (b) a vote of a "majority" (as
defined in the Investment Company Act of 1940) of the Fund's outstanding voting
securities, provided that in either event the continuance is also approved by a
majority of the Board of Directors who are not "interested persons" (as defined
in said Act) of any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval This Agreement is terminable,
without penalty, on 60 days' written notice, by the Board of Directors of the
Fund or by vote of holders of a majority of the Fund's shares or upon 90 days'
written notice, by Cowen. This Agreement will also terminate automatically in
the event of its assignment (as defined in said Act and the Rules thereunder).
10. Amendment of the Agreement
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no material amendment of this Agreement shall be effective until
approved by vote of the holders of a majority of the outstanding voting
securities of the Fund.
11. Miscellaneous
The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. If any provision of this Agreement shall be
held or made invalid by court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be invalidated or rendered unenforceable
thereby. This Agreement shall inure to the benefit of the parties hereto and
their respective successor and shall be governed by New York law.
If the foregoing is in accordance with your understanding, kindly indicate
your acceptance hereof by signing and returning the enclosed copy hereof.
Very truly yours,
COWEN INCOME + GROWTH FUND, INC.
By: /s/ Xxxxxx Xxxxxxx
Accepted and Agreed
XXXXX & CO.
By: COWEN INCORPORATED, GENERAL PARTNER
By: /s/ Xxxxxxxxx X. Xxxx, MANAGING DIRECTOR
