EXHIBIT 5
AMENDED AND RESTATED MANAGEMENT AND
INVESTMENT ADVISORY AGREEMENT
MANAGEMENT AND
INVESTMENT ADVISORY AGREEMENT
This amended and restated Agreement dated October 28, 1996 amends and
restates the Agreement dated February 2, 1996 between XXXXX PARTNERS, INC., a
Nebraska corporation (hereinafter called "Fund") and XXXXXXX X. XXXXX &
COMPANY, a Nebraska corporation (hereinafter called "Adviser");
In consideration of the mutual covenants herein contained, the parties
hereto agree as follows:
1. APPOINTMENT OF INVESTMENT ADVISER
The Fund hereby appoints the Adviser to manage the investment and
reinvestment of assets of the Partners Value Fund and any other Portfolio of
the Fund which may be hereafter designated as a separate series, subject to
the supervision of the Board of Directors of the Fund for the period and on
the terms set forth herein. The Adviser hereby accepts such appointment and
agrees during such period, at its own expense, to render the services and to
assume the obligations herein set forth, for the compensation herein
provided. The Adviser shall not be liable to the Fund for any act or
omission by the Adviser or for any losses sustained by the Fund or its
shareholders except in the case of willful misfeasance, bad faith, gross
negligence or reckless disregard of duty.
2. DUTIES AND EXPENSES OF ADVISER AND FUND
(a) The Fund shall, at all times, inform Adviser as to the securities
held by it, the funds available or to become available for investment by it,
and otherwise as to the condition of its affairs.
(b) Adviser shall furnish to the Fund, at the regular executive offices
of the Fund, advice and recommendations with respect to the purchase and sale
of securities and investments and the making of commitments and shall place
at the disposal of the Fund such statistical, research, analytical and
technical services, information and reports as may reasonably be required.
The Adviser shall also pay or reimburse the Fund for the compensation, if
any, of the officers of the Fund.
The officers of the Fund or the Adviser shall use their best efforts to
obtain the most favorable execution available from brokers or dealers in
purchasing and selling securities. In so doing, such officers may consider
such factors which they may deem relevant to the Fund's best interest, such
as price, the size of the transaction, the nature of the market for the
security, the amount of commission, the timing of the transaction taking into
account market prices and trends, the reputation, experience and financial
stability of the broker-dealer involved and the quality of service rendered
by the broker-dealer in other transactions. Subject to the foregoing
considerations, at the Fund's expense, such officers may place orders for the
purchase or sale of portfolio securities with brokers or dealers who have
provided research, statistical or other financial information and services to
the Fund or the Adviser. Such officers shall have discretionary authority to
utilize broker-dealers who have provided brokerage and research information
of the type or nature referred to in Section 28(e) of the Securities Exchange
Act of 1934 to the Fund or the Adviser even though it may result in the
payment by the Fund of an amount of commission for effecting a securities
transaction in excess of the amount of commission another broker-dealer would
have charged for effecting that transaction, providing, however, that the
Fund officers have determined in good faith that such amount of commission
was reasonable in relation to the value of the brokerage and research
services provided by the broker-dealer effecting the transactions, viewed in
terms of either that particular transaction or their responsibilities with
respect to the accounts for which said officers exercise investment
discretion.
(c) Except as otherwise expressly provided herein, the Fund shall pay
the following items:
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(1) the charges and expenses of any custodian or depository
appointed by the Fund for the safekeeping of its cash, securities and
other property;
(2) the charges and expenses of auditors for the Fund;
(3) the charges and expenses of any transfer agents and registrars
appointed by the Fund;
(4) broker's commissions and issue and transfer taxes chargeable to
the Fund in connection with securities transactions to which the Fund is a
party;
(5) all taxes and corporate fees payable by the Fund to federal,
state or other governmental agencies;
(6) the cost of stock certificates representing shares of the Fund;
(7) compensation of the directors of the Fund (other than directors
who are officers of the Adviser), and all expenses of Fund shareholders'
and directors' meetings and of preparing, printing and mailing reports to
shareholders of the Fund;
(8) charges and expenses of legal counsel for the Fund in connection
with legal matters relating to the Fund, including without limitation,
legal services rendered in connection with the Fund's corporate existence,
corporate and financial structure, relations with its stockholders and the
issuance of securities; and
(9) all other bookkeeping, administrative and operational costs,
charges and expenses of the Fund, without limitation.
3. FEES OF ADVISER
For the services to be furnished by the Adviser hereunder, the Fund shall,
commencing with the effective date of the first public offering of shares of
the Partners Value Fund, pay Adviser an
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annual fee equal to one percent (1%) of the average net asset value of the
Fund as ascertained on each business day and paid monthly. To the extent
that additional series of the Fund are added in the future, the Fund will pay
the fee as approved by the Board of Directors of the Fund which such fee
shall be described on an Exhibit 1 to this Agreement.
The compensation for the period from the effective date hereof to the next
succeeding last day of the month shall be prorated according to the
proportion which such period bears to the full month ending on such date, and
provided further that, upon any termination of this Agreement before the end
of any month, such compensation for the period from the end of the last month
ending prior to such termination to the date of termination, shall be
prorated according to the proportion which such period bears to a full month,
and shall be payable upon the date of termination. For the purpose of the
Adviser's compensation, the value of the Fund's net assets shall be computed
in the manner specified in its Articles of Incorporation or By-Laws in
connection with the determination of the net asset value of its shares.
4. INDEPENDENT CONTRACTOR
Adviser shall, for all purposes herein, be an independent contractor and
shall have no authority to act for or represent the Fund in its investment
commitments unless otherwise provided. No agreement, bid, offer, commitment,
contract or other engagement entered into by Adviser whether on behalf of
Adviser or whether purported to have been entered into on behalf of the Fund
shall be binding upon the Fund, and all acts authorized to be done by Adviser
under this Agreement shall be done by it as an independent contractor and not
as agent.
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5. NON-EXCLUSIVE SERVICES OF ADVISER
Except to the extent necessary for performance of Adviser's obligations
hereunder, nothing shall restrict the right of Adviser or any of its
directors, officers, or employees who may be directors, officers or employees
of the Fund to engage in any other business or to devote time and attention
to the management or other aspects of any other business whether of a similar
or dissimilar nature or to render services of any kind to any other
corporation, firm, individual or association. The services of the Adviser to
the Fund hereunder are not to be deemed exclusive, and the Adviser shall be
free to render similar services to others so long as its services hereunder
be not impaired thereby.
6. EFFECTIVE PERIOD AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective on the effective date of the first
public offering of the Fund's shares, and shall continue in effect if
approved annually in accordance with the provisions of the Investment Company
Act of 1940 (the "1940 Act") and the regulations promulgated under the 1940
Act.
This Agreement may be terminated at any time, without payment of any
penalty, by the Board of Directors of the Fund, or by a vote of a majority of
the outstanding voting securities of the Fund, in either case upon not less
than sixty (60) days' written notice to Adviser, and it may be terminated by
Adviser upon sixty (60) days' written notice to the Fund.
7. ASSIGNMENT OF AGREEMENT PROHIBITED
This Agreement will automatically be terminated in the event of its
assignment. It may not be transferred, assigned, sold, or in any manner
hypothecated or pledged; nor may any new agreement become effective without the
affirmative vote of a majority of those directors of the Fund who are not
parties to such Agreement or interested persons of any such party, and ratified
by a vote
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of the majority of the outstanding voting securities of the Fund, provided
that this limitation shall not prevent any minor amendments to the Agreement
which may be required by federal or state regulatory bodies.
8. INTERESTED PERSONS
It is understood that directors, officers, agents and stockholders of the
Fund are or may be interested in the Adviser (or any successor thereof) as
directors, officers, agents, stockholders or otherwise; that directors,
officers, agents, and stockholders of the Adviser are or may be interested in
the Fund as directors, officers, agents, stockholders or otherwise; and that
the Adviser (or any such successor) is or may be interested in the Fund as
stockholder or otherwise.
9. DEFINITIONS
For the purpose of the Agreement, the terms "vote of a majority of the
outstanding voting securities," "assignment," "affiliated person" and
"interested person" shall have the respective meanings specified in the
Investment Company Act of 1940 as now or hereafter in effect.
10. PROPRIETARY INTEREST OF ADVISER
The parties hereto acknowledge and agree that the name "Xxxxx" is
proprietary to and the sole and exclusive property of the Adviser. Adviser
hereby licenses the use of the name "Xxxxx" to the Fund for a term concurrent
with the term of this Agreement. From and after a date which is one hundred
eighty (180) days after the termination of this Agreement, Fund shall not do
business under any name containing the word "Xxxxx" without the prior written
consent of Adviser.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their proper officers and their corporate seals to be hereunto
affixed, all as of the day and year first above written.
XXXXX PARTNERS, INC.
By /s/ Xxxxxxx X. Xxxxx
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President
Attest /s/ Xxxx X. Xxxxxxxx
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Secretary
XXXXXXX X. XXXXX & COMPANY
By /s/ Xxxxxxx X. Xxxxx
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President
Attest /s/ Xxxx X. Xxxxxxxx
--------------------------------
Secretary
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