INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made on March 11, 2009 by and between Midas Perpetual Portfolio,
Inc., a Maryland corporation (the "Fund") and Midas Management Corporation, a
Delaware corporation (the "Investment Manager").
WHEREAS the Fund is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company and
offers for public sale shares of common stock; and
WHEREAS the Fund desires to retain the Investment Manager to furnish
certain investment advisory and portfolio management services and the Investment
Manager desires to furnish such services;
NOW THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed between the parties hereto as
follows:
1. The Fund hereby employs the Investment Manager to manage the investment
and reinvestment of the assets of the Fund, including the regular furnishing of
advice with respect to portfolio transactions subject at all times to the
control and final direction of the Fund's Board of Directors, for the period and
on the terms set forth in this Agreement. The Investment Manager hereby accepts
such employment and agrees during such period to render the services and to
assume the obligations herein set forth, for the compensation herein provided.
The Investment Manager shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund in any way, or
otherwise be deemed an agent of the Fund.
2. The Fund assumes and shall pay all the expenses required for the conduct
of its business including, but not limited to, salaries of administrative and
clerical personnel, brokerage commissions, taxes, insurance, fees of the
transfer agent, custodian, legal counsel and auditors, association fees, costs
of filing, printing and mailing proxies, reports and notices to shareholders,
preparing, filing and printing the prospectus and statement of additional
information, payment of dividends, costs of stock certificates, costs of
shareholders meetings, fees of the independent directors, necessary office space
rental, all expenses relating to the registration or qualification of shares of
the Fund under applicable Blue Sky laws and reasonable fees and expenses of
counsel in connection with such registration and qualification and such
non-recurring expenses as may arise, including, without limitation, actions,
suits or proceedings affecting the Fund and the legal obligation which the Fund
may have to indemnify its officers and directors with respect thereto.
3. The Investment Manager may, but shall not be obligated to, pay or
provide for the payment of expenses which are primarily intended to result in
the sale of the Fund's shares or the servicing and maintenance of shareholder
accounts, including, without limitation, payments for: advertising, direct mail
and promotional expenses; compensation to and expenses, including overhead and
telephone and other communication expenses, of the Investment Manager and its
affiliates, the Fund, and selected dealers and their affiliates who engage in or
support the distribution of shares or who service shareholder accounts;
fulfillment expenses including the costs of printing and distributing
prospectuses, statements of additional information, and reports for other than
existing shareholders; the costs of preparing, printing and distributing sales
literature and advertising materials; and, internal costs incurred by the
Investment Manager and its affiliates and allocated to efforts to distribute
shares of the Fund such as office rent and equipment, employee salaries,
employee bonuses and other overhead expenses. Such payments may be for the
Investment Manager's own account or may be made on behalf of the Fund pursuant
to a written plan of distribution adopted pursuant to Rule 12b-1 under the 1940
Act.
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4. If requested by the Fund's Board of Directors, the Investment Manager
may provide other services such as, without limitation, the functions of
billing, accounting, certain shareholder communications and services,
administering state and Federal registrations, filings and controls and other
administrative services. Any services so requested and performed will be for the
account of the Fund and the costs of the Investment Manager in rendering such
services shall be reimbursed by the Fund, subject to examination by those
directors of the Fund who are not interested persons of the Investment Manager
or any affiliate thereof.
5. The services of the Investment Manager are not to be deemed exclusive,
and the Investment Manager shall be free to render similar services to others in
addition to the Fund so long as its services hereunder are not impaired thereby.
6. The Investment Manager shall create and maintain all necessary books and
records in accordance with all applicable laws, rules and regulations, including
but not limited to records required by Section 31(a) of the 1940 Act and the
rules thereunder, as the same may be amended from time to time, pertaining to
the investment management services performed by it hereunder and not otherwise
created and maintained by another party pursuant to a written contract with the
Fund. Where applicable, such records shall be maintained by the Investment
Manager for the periods and in the places required by Rule 3la-2 under the 1940
Act. The books and records pertaining to the Fund which are in the possession of
the Investment Manager shall be the property of the Fund. The Fund, or the
Fund's authorized representatives, shall have access to such books and records
at all times during the Investment Manager's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by the Investment Manager to the Fund or the Fund's authorized
representatives.
7. A. As compensation for its services provided pursuant to this Agreement,
the Fund will pay to the Investment Manager a fee from the assets of the Fund,
such fee to be computed daily and paid monthly at the annual rate of the Fund's
net assets as set forth below:
Up to $250 million of average daily net
assets..........................................................0.50%
From $250 million to $500 million...............................0.45%
Over $500 million...............................................0.40%
B. As compensation for its services provided pursuant to this Agreement, the
Fund will pay to the Investment Manager from the assets of the Fund a fee in an
amount to be agreed upon in a written fee agreement ("Fee Agreement") executed
by the Fund and by the Investment Manager. All such Fee Agreements shall provide
that they are subject to all terms and conditions of this Agreement.
C. The aggregate net assets for the Fund each day shall be computed by
subtracting the liabilities of the Fund from the value of its assets, such
amount to be computed as of the calculation of the net asset value per share on
each business day.
D. If this Agreement becomes effective or terminates with respect to the Fund
before the end of any month, the fee for the period from the effective date to
the end of the month or from the beginning of such month to the date of
termination, as the case may be, shall be prorated according to the proportion
which such period bears to the full month in which such effectiveness or
termination occurs.
8. The Investment Manager shall direct portfolio transactions to broker/
dealers for execution on terms and at rates which it believes, in good faith, to
be reasonable in view of the overall nature and quality of services provided by
a particular broker/dealer, including brokerage and research services and sales
of shares of the Fund and shares of the other Midas Funds. The Investment
Manager may also allocate portfolio transactions to broker/dealers that remit a
portion of their commissions as a credit against Fund expenses. With respect to
brokerage and research services, the Investment Manager may consider in the
selection of broker/dealers brokerage or research provided and payment may be
made of a fee higher than that charged by another broker/dealer which does not
furnish brokerage or research services or which furnishes brokerage or research
services deemed to be of lesser value, so long as the criteria of Section 28(e)
of the Securities Exchange Act of 1934, as amended, or other applicable law are
met. Although the Investment Manager may direct portfolio transactions without
necessarily obtaining the lowest price at which such broker/dealer, or another,
may be willing to do business, the Investment Manager shall seek the best value
for the Fund on each trade that circumstances in the market place permit,
including the value inherent in on-going relationships with quality brokers. To
the extent any such brokerage or research services may be deemed to be
additional compensation to the Investment Manager from the Fund, it is
authorized by this Agreement. The Investment Manager may place brokerage for the
Fund through an affiliate of the Investment Manager, provided that the Fund not
deal with such affiliate in any transaction in which such affiliate acts as
principal; the commissions, fees or other remuneration received by such
affiliate be reasonable and fair compared to the commissions, fees or other
remuneration paid to other brokers in connection with comparable transactions
involving similar securities being purchased or sold on a securities exchange
during a comparable period of time; and such brokerage be undertaken in
compliance with applicable law. The Investment Manager's fees under this
Agreement shall not be reduced by reason of any commissions, fees or other
remuneration received by such affiliate from the Fund.
9. The Investment Manager shall waive all or part of its fee or reimburse a
Fund monthly if and to the extent the aggregate operating expenses of the Fund
exceed the most restrictive limit imposed by any state in which shares of the
Fund are qualified for sale. In calculating the limit of operating expenses, all
expenses excludable under state regulation or otherwise shall be excluded. If
this Agreement is in effect for less than all of a fiscal year, any such limit
will be applied proportionately.
10. Subject to and in accordance with the Articles of Incorporation and
By-laws of the Fund and of the Investment Manager, it is understood that
directors, officers, agents and shareholders of the Fund are or may be
interested in the Fund as directors, officers, shareholders or otherwise, that
the Investment Manager is or may be interested in the Fund as a shareholder or
otherwise and that the effect and nature of any such interests shall be governed
by law and by the provisions, if any, of said Articles of Incorporation or
By-laws.
11. A. This Agreement shall become effective upon the date hereinabove
written provided that this Agreement shall not take effect unless it has first
been approved (i) by a vote of a majority of the Directors of the Fund who are
not parties to this Agreement, or interested persons of any such party and (ii)
by vote of the holders of a majority of the Fund's outstanding voting
securities.
B. Unless sooner terminated as provided herein, this Agreement shall
continue in effect for two years from the above written date. Thereafter, if not
terminated, this Agreement shall continue automatically for successive periods
of twelve months each, provided that such continuance is specifically approved
at least annually (I) by a vote of a majority of the Directors of the Fund who
are not parties to this Agreement, or interested persons of any such party and
(ii) by the Board of Directors of the Fund or by the vote of the holders of a
majority of the outstanding voting securities of the Fund.
C. This Agreement may be terminated without penalty at any time either by
vote of the Board of Directors of the Fund or by vote of the holders of a
majority of the outstanding voting securities of the Fund on 60 days' written
notice to the Investment Manager, or by the Investment Manager on 60 days'
written notice to the Fund. Termination of this Agreement shall in no way affect
the continued validity of this Agreement or the performance thereunder.
Agreement shall immediately terminate in the event of its assignment.
12. The Investment Manager shall not be liable to the Fund or any
shareholder of the Fund for any error of judgment or mistake of law or for any
loss suffered by the Fund or the Fund's shareholders in connection with the
matters to which this Agreement relates, but nothing herein contained shall be
construed to protect the Investment Manager against any liability to the Fund or
the Fund's shareholders by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties or by reason of its reckless
disregard of obligations and duties under this Agreement.
13. As used in this Agreement, the terms "interested person," "assignment,"
and "majority of the outstanding voting securities" shall have the meanings
provided therefor in the 1940 Act, and the rules and regulations thereunder.
14. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written. If any provision of this Agreement shall be held or
made invalid by a court or regulatory agency decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby.
15. This Agreement shall be construed in accordance with and governed by
the laws of the State of New York, provided, however, that nothing herein shall
be construed in a manner inconsistent with the 1940 Act or any rule or
regulation promulgated thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
ATTEST: MIDAS PERPETUAL PORTFOLIO, INC.
/s/Xxxxx Xxxxxxxxx By: /s/Xxxx X. Xxxxxxx
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ATTEST: MIDAS MANAGEMENT CORPORATION
/s/Xxxxxx XxxXxxxxx By: /s/Xxxxxx X'Xxxxxx
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