Exhibit 5(b)
INVESTMENT SERVICES AGREEMENT
LTCB-MAS Investment Management, Inc.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxxxx, XX 00000
January 3, 1996
Xxxxxx Xxxxxxxx & Xxxxxxxx, LLP
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxxxx, XX 00000
Ladies and Gentlement:
This will confirm the agreement between the undersigned
("LTCB-MAS") and Xxxxxx Xxxxxxxx & Xxxxxxxx, LLP (or any successor-in-interest
(by merger or otherwise) thereto or transferee thereof that does not involve an
"assignment" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act"), and that is a limited partnership or other entity
wholly owned, directly or indirectly, by Xxxxxx Xxxxxx Asset Management
Holdings, Inc. and/or its affiliates (Xxxxxx Xxxxxxxx & Xxxxxxxx, LLP or such
successor-in-interst or transferee being referred to herein as the
"Sub-adviser") as follows:
1. LTCB-MAS has been employed by Xxxxxxx Fund, Inc. (the
"Fund")to provide investment services to the Fund pursuant to an investment
management agreement dated January 3, 1996 (the "Investment Management
Agreement"). The Fund is an open-end investment company that consists of the
separate investment portfolios set forth on Schedule A hereto, as amended from
time to time (the "Portfolios"). The Fund invests and reinvests the assets of
each Portfolio in the manner and in accordance with the investment objective and
limitations of each Portfolio specified in the Fund's Articles of Incorporation
(the "Articles"), and the currently effective prospectus, including the
documents incorporated by reference therein (the "Prospectus"), relating to the
Fund and each Portfolio, included in the Fund's Registration Statement, as
amended from time to time (the "Registration Statement"), filed under the 1940
Act and the Securities Act of 1933, as amended. Copies of the documents referred
to in the preceding sentence have been furnished to the Sub-adviser. Any
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amendments to these documents shall be furnished to the Sub-adviser promptly.
2. For good and valuable consideration, LTCB-MAS hereby employs
the Sub-adviser, acting in collaboration with and under the supervision of
LTCB-MAS, to (a) be responsible for selecting investments for each Portfolio in
conformity with the stated investment objective and policies of such Portfolio,
(b) advise and consult with LTCB-MAS regarding each Portfolio's overall
investment strategy, and (c) consult with LTCB-MAS on at least a weekly basis
regarding specific decisions concerning the purchase, sale or retention of
particular securities on behlaf of each Portfolio.
3. The Sub-adviser shall provide, at its own expense, the office
space, furnishings and equipment and the personnel required by it to perform the
services to be performed hereunder on the terms provided herein. The Sub-adviser
shall not be responsible for the expenses of the Fund or LTCB-MAS.
4. The Sub-adviser, acting in collaboration with and under the
supervision of LTCB-MAS, shall make investments and shall place purchase and
sale orders for the account of each Portfolio in accordance with the investment
objective and limitations of each Portfolio set forth in the Articles, the
Prospectus, the 1940 Act, the provisions of the Internal Revenue Code relating
to regulated investment companies, other applicable laws and regulations, and
policy decisions adopted by the Fund's Board of Directors from time to time and
communicated to the Sub-adviser in writing. The Sub-adviser shall advise
LTCB-MAS and, through LTCB-MAS, the Fund's officers and Board of Directors, at
such times as the Fund's Board of Directors may specify, of investments made for
the account of each Portfolio and shall, when requested by LTCB-MAS or the
Fund's officers or Board of Directors, supply the reasons for making such
investments.
5. In consideration of the Sub-adviser's undertaking to render
the services described in this agreement, LTCB-MAS agrees that the Sub-adviser's
undertaking to render the services described in this agreement, LTCB-MAS agrees
that the Sub-adviser shall not be liable under this agreement for any error of
judgment or mistake of law or for any loss suffered by LTCB-MAS or the Fund in
connection with the performance of this agreement, provided that nothing in this
agreement shal be deemed to protect or purport to protect the Sub-adviser
against any liability to LTCB-MAS or the Fund to which the Sub-adviser would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of its duties under this agreement or by reason of
its reckless disregard of its obligations and duties hereunder.
6. The Sub-adviser shall receive no fee for the services it
provides pursuant to this agreement.
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7. The Sub-adviser is authorized to select the brokers or dealers
that will execute the purchases and sales of securities for each of the Fund's
Portfolios and is directed to use its best efforts to obtain the best available
price and most favorable execution, except as prescribed herein. Subject to
policies established by the Board of Directors of the Fund, the Sub-adviser may
also be authorized to effect individual securities transactions at commission
rates in excess of the minimum commission rates available, if the Sub-adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage or research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
overall responsibilities of the Sub-adviser under this agreeement. The execution
of such transactions shall not be deemed to represent an unlawful act or breach
of any duty created by this agreement or otherwise. The Sub-adviser will
promptly communicate to LTCB-MAS and the officers and Directors of the Fund such
information relating to portfolio transactions as they may reasonably request.
8. The Sub-adviser will notify LTCB-MAS of any change or pending
change in its direct or indirect ownership or in its organizational structure
within a reasonable period of time after learning of such change or pending
change.
9. This agreement shall continue in effect for an initial period
of two years from the date hereof and thereafter with respect to each Portfolio
for successive annual periods, provided that such continuance is specifically
approved at least annually (a) by the vote of a majority of the Portfolio's
outstanding voting securities (as defined in the 0000 Xxx) or by the Fund's
Board of Directors and (b) by the vote, cast in person at a meeting called for
such purpose, of a majority of the Fund's directors who are not parties to this
agreement or "interested persons" (as defined in the 0000 Xxx) of any such
party. This agreement may be terminated by any Portfolio without penalty, at any
time,(1) either by a vote of the Board of Directors or by vote of the
outstanding voting securities of that Portfolio on sixty (60) days' written
notice, (2) by LTCB-MAS upon ninety (90) days' notice to the Sub-adviser and the
Fund, or (iii) by the Sub-Adviser upon ninety (90) days' notice to LTCB-MAS and
the Fund. This agreement may remain in effect with respect to a Portfolio even
if it has been terminated in accordance with this paragraph with respect to the
other Portfolio of the Fund. This agreement will also terminate automatically in
the event of its assignment (as defined in the 1940 Act).
10. Except to the extent necessary to perform the Sub-adviser's
obligations under this agreement, nothing herein shall be deemed to limit or
restrict the right of the Sub-adviser, or any affiliate of the Sub-adviser, or
any employee of the Sub-adviser, to engage in any other business or to devote
time and attention to the management or other aspects of any other
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business, whether of a similar or dissimilar nature, or to render services of
any kind to any other corporation, firm, individual or association.
11. This agreement shall be governed by the laws of the State of
New York.
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If the foregoing correctly sets forth the agreement between
LTCB-MAS and the Sub-adviser, please so indicate by signing and returning to
LTCB-MAS the enclosed copy hereof.
Very truly yours,
LTCB-MAS INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Title: President
ACCEPTED:
XXXXXX XXXXXXXX & XXXXXXXX
By: /s/ Xxxxxx
---------------------------------
Title: Partner
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SCHEDULE A
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Equity Portfolio
