EXHIBIT 99.5
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of this 20th day of March,, 1987, by and
between XXXXXXX XXXXX RETIREMENT BENEFIT INVESTMENT PROGRAM, INC., a
Maryland corporation (hereinafter referred to as the ("Fund"), and
XXXXXXX XXXXX ASSET MANAGEMENT, INC., a Delaware corporation
(hereinafter referred to as the "Investment Advise r").
W I T N E S S E T H:
WHEREAS, the Fund intends to engage in business as a
diversified, open-end, management investment company registered under
the Investment Company Act of 1940, as amended (hereinafter, referred
to-as the "Investment Company Act"); and
WHEREAS, the Investment Adviser is engaged principally in
rendering management and investment advisory services and is
registered as an investment adviser under the Investment Advisers Act
of 1940; and
WHEREAS, the Fund desires to retain the Investment Adviser to
render management and investment advisory services to the Fund in the
manner and an the terms hereinafter set forth; and
WHEREAS, the Investment Adviser is willing to provide management
and investment advisory services to the Fund on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, the Fund and the Investment Adviser
hereby agree as follows:
ARTICLE I
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Duties of the Investment Adviser
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The Fund hereby employs the Investment Adviser to act as the
manager and investment adviser of the Fund and to furnish, or arrange
for affiliates to furnish, the management and investment advisory
services described below, subject to the supervision of the Board of
Directors of the Fund, for the period and on the terms and conditions
set forth in this Agreement. The Investment Adviser hereby accepts
such employment and agrees during such period, at its own expense, to
render, or arrange for the rendering of, such services and to assume
the obligations herein, set forth for the compensation provided for
herein. The Investment Adviser and its affiliates shall, for all
purposes herein, be deemed to be independent contractors 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.
(a) Management Services. The Investment Adviser shall perform
(or arrange for the performance by affiliates of) the management and
administrative services necessary for the operation of the Fu nd,
including processing shareholder orders,
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administering shareholder accounts and handling shareholder relations,
except to the extent that the Investment Adviser is required to render
such services pursuant to its separate Administrative and Sub-
Accounting Services Agreement with the Fund. The Investment Adviser
shall provide the Fund with office space, equipment and facilities and
such other services as the investment Adviser, subject to review by
the Board of Directors of the Fund, shall from time to time determine
to be necessary or useful to perform its obligations under this
Agreement. The Investment Adviser shall also, on behalf of the Fund,
conduct relations with custodians, depositories, transfer agents,
dividend disbursing agents, other shareholder service agents,
accountants, attorneys, underwriters, brokers and dealers, corporate
fiduciaries, insurers, banks and such oth2r persons in any such other
capacity deemed to be necessary or desirable. The investment Adviser
shall make reports to the Board of Directors of the Fund of its
performance of obligations hereunder and furnish advice and
recommendations with respect to such other aspects of the business and
affairs of the Fund as it shall determine to be desirable.
(b) Investment Advisory Services. The Investment Adviser shall
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provide the Fund with such investment research, advice and supervision
as the latter may from time to time consider necessary for the proper
supervision of the assets of the Fund, shall furnish continuously an
investment program for
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the Fund and shall determine from time to time which securities shall
be purchased, sold or exchanged and what portion of the Fund shall be
held in the various securities in which the Fund invests or cash,
subject always to the restrictions of the Articles of Incorporation
and By-Laws of the Fund, as amended from time to time, the provisions
of the Investment Company Act and the statements relating to the
Fund's investment objectives, investment policies and investment
restrictions as the same are set forth in the currently effective
prospectus and statement of additional information relating to the
shares of the Fund under the Securities Act of 1933, as amended (the
"Prospectus and SAI"). The Investment Adviser shall also make
decisions for the Fund-as to the manner in which voting rights, rights
to consent to corporate action and any other rights pertaining to the
Fund's portfolio securities shall be exercised. Should the Board of,
Directors of the Fund at any time, however, make any definite
determination as to investment policy and notify the Investment
Adviser thereof in writing, the Investment Adviser shall be bound by
such determination for the period, if any, specified in such notice or
until similarly notified that such determination has been revoked. The
Investment Adviser shall take, on behalf of the Fund, all actions
which it deems necessary to implement the investment policies
determined as provided above, and in particular, to place all orders
for the purchase or sale of portfolio securities for the Fund's
account with brokers or
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dealers selected by it, and to that end, the Investment Adviser is
authorized as the agent of the Fund to give instructions to the
Custodian of the Fund as to deliveries of securities and payments of
cash for the account of the Fund. in connection with the selection of
such brokers or dealers and the placing of such orders with respect to
assets of the Fund, the Investment Adviser is directed at all times to
seek to obtain execution and prices within the policy guidelines
determined by the Board of Directors of the Fund and set forth in the
Prospectus and SAI. Subject to this requirement and the provisions of
the Investment Company Act, the Securities Exchange Act of 1934, as
amended, and other applicable provisions of law, the Investment
Adviser may select brokers or dealers with which it, or the Fund, is
affiliated.
ARTICLE II
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Allocation of Charges and Expenses
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(a) The Investment Adviser. The Investment Adviser assumes the
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expense of, and shall pay for, maintaining the staff and personnel
necessary to perform its obligations under this Agreement, and shall
at its own expense, provide the office space, equipment and facilities
which it is obligated to provide under Article I hereof, and shall pay
all compensation of officers of the Fund and all directors of the Fund
who are affiliated persons of the Investment Adviser.
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(b) The Fund. The Fund assumes and shall pay, or cause to be
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paid, all other expenses of the Fund (except for the expenses incurred
by the Distributor), including, without limitation: taxes, expenses
for legal and auditing services, costs of printing proxies, stock
certificates, shareholder reports and Prospectuses and SAIs (except to
the extent paid by the Distributor), charges of the Custodian and
Transfer Agent, expenses of redemption of shares, Securities and
Exchange Commission fees, expenses of registering the shares under
Federal and state securities laws, fees and actual out-of-pocket
expenses of directors who are not affiliated persons of the Investment
Adviser, accounting and pricing costs (including the daily calculation
of the net asset value), insurance, interest, brokerage costs,
litigation and other extraordinary or non- recurring expenses, and
other expenses properly payable by the Fund. it is also understood
that the Fund will reimburse the Investment Adviser for its costs in
providing portfolio accounting services to the Fund. The Distributor
will pay certain of the expenses of the Fund incurred in connection -
with the continuous offering of Fund shares.
ARTICLE III
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Compensation of the Investment Adviser
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(a) Investment Advisory Fee. For the services, rendered the
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facilities furnished and expenses assumed by the investment Adviser,
the Fund shall pay to the Investment Adviser
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at the end of each calendar month a fee based upon the average daily
value of the net assets of the Fund, as determined and computed in
accordance with the description of the determination of the net asset
value contained in the Prospectus and SAI, at the following annual
rates: 0.65% of the average daily net assets not exceeding $500
million; 0.60% of the average daily net assets exceeding $500 million,
but not exceeding $1.5 billion; 0.55% of-the average daily net assets
exceeding $1.5 billion, but not exceeding $2.5 billion; 0.50% of the
average daily net assets exceeding $2.5 billion, but not exceeding
$3.5 billion; and 0.45% of the average daily net assets exceeding $3.5
billion. During any period when the determination of net asset value
is suspended by the Board of Directors of the Fund, the net asset
value of a share as of the last business day prior to such suspension
shall, for this purpose, be deemed to be the net asset value at the
close of each succeeding business day until it is again determined.
(b) Expense Limitations. In the event the operating expenses of
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the Fund, including amounts payable to the investment Adviser pursuant
to subsection (a) hereof, for any fiscal year ending on a date on
which this Agreement is in effect, exceed the expense limitations
applicable to the Fund imposed by applicable state securities laws or
regulations thereunder, as such limitations may be raised or lowered
from time to time, the investment Adviser shall reduce its management
fee by the extent
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of such excess and, if required pursuant to any such laws or
regulations, will reimburse the Fund in the amount of such excess,
provided, however, to the extent permitted by law, there shall be
excluded from such expenses the amount of any interest, taxes,
brokerage commissions, distribution fees and extraordinary expenses
(including but not limited to legal claims and, liabilities and
litigation costs and any indemnification related thereto) paid or
payable by the Fund. Whenever the expenses of the Fund exceed a pro
rata portion of the applicable annual expense limitations the
estimated amount of reimbursement under such limitations shall be
applicable as an offset against the monthly payment of the fee due to
the Investment Adviser. Should two or more such expense limitations be
applicable as at the end of the last business day of the month, that
expense limitation which results in the largest reduction in the
Investment Adviser's fee shall be applicable.
ARTICLE IV
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Limitation of Liability of the Investment Adviser
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The Investment Adviser shall not be liable for any error of
judgment or mistake of law or for any loss arising out of any
investment or for any act or omission in the management of the Fund,
except for willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard of its
obligations and duties hereunder. As
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used in this Article IV, the term "Investment Adviser" shall include
any affiliates of the Investment Adviser performing services for the
Fund contemplated hereby and directors, officers and employees of the
Investment Adviser and such affiliates.
ARTICLE V
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Activities of the Investment Adviser
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The services of the Investment Adviser to the Fund are not to be
deemed to be exclusive, the Investment Adviser being free to render
services to others. It is understood a directors, officers, employees
and shareholders of the Fund are or may become interested in the
Investment Adviser as directors, officers, employees and shareholders
or otherwise and that directors, officers, employees and shareholders
of the Investment Adviser are or may become similarly interested in
the Fund, and, that the Investment Adviser may become interested in
the Fund as, a shareholder or otherwise.
ARTICLE VI
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Duration and Termination of this Agreement
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This Agreement shall become effective as of the date first above
written and shall remain in full force until March 20, 1989 and
thereafter, but only so long as such continuance is specifically
approved at least annually by (i) the Board of Directors of the Fund,
or by the vote of a Majority of the
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outstanding voting securities of the Fund, and (ii) a majority of
those directors 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. This Agreement may be terminated
at any time, without' the payment of any penalty, by the Board of
Directors of the Fund or by vote of a majority of the outstanding
voting securities of the Fund, or by the Investment Adviser, on sixty
days written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment.
ARTICLE VII
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Amendments of this Agreement
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This Agreement may be amended by the parties only if such
amendment is specifically approved by (i) the Board of,, Directors of
the Fund, or by the vote of a Majority of outstanding voting
securities of the Fund, and (ii) a majority of those directors 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.
ARTICLE VIII
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Definitions of Certain Terms
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The terms 'vote of a majority of the outstanding voting securi
ties", "assignment", "affiliated person" and "interested
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person", when used in this Agreement, shall have the respective
meanings specified in the Investment Company Act.
ARTICLE IX
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Governing Law
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This Agreement shall be construed in accordance with laws of the
State of New York, and the applicable provisions of the Investment
Company Act. To the extent that the applicable laws of the State of
New York, or any of the provisions herein, conflict with the
applicable provisions of the Investment Company Act, the latter shall
control.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
XXXXXXX XXXXX RETIREMENT BENEFIT
INVESTMENT PROGRAM, INC.
By /S/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
XXXXXXX XXXXX ASSET
MANAGEMENT, INC.
By /S/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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