THE 00 XXXX XXXXXX FUND, INC.
INVESTMENT ADVISORY AGREEMENT
THE 00 XXXX XXXXXX TAX-EFFICIENT EQUITY FUND
AGREEMENT, made on the 11th day of August, 1998, between THE 00 XXXX
XXXXXX FUND, INC., a Maryland corporation (the "Corporation"), on behalf of The
00 Xxxx Xxxxxx Tax-Efficient Equity Fund (the "Fund"), and XXXXX BROTHERS
XXXXXXXX & CO., a New York limited partnership (the "Adviser"),
WHEREAS, the Corporation is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the " 1940
Act"); and
WHEREAS, the Corporation desires to retain the Adviser to render
investment advisory services to the Fund, and the Adviser is willing to render
such services;
NOW, THEREFORE, this Agreement
WITNESSETH:
that in consideration of the premises and mutual promises hereinafter set forth,
the parties hereto agree as follows:
1. The Corporation hereby appoints the Adviser to act as investment
adviser to the Fund for the period and on the terms set forth in this Agreement.
The Adviser accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. Subject to the general supervision of the Directors of the
Corporation, the Adviser shall manage the investment operations of the Fund and
the composition of the Fund's portfolio of securities and investments, including
cash, the purchase, retention and disposition thereof and agreements relating
thereto, in accordance with the Fund's investment objective and policies as
stated in the Prospectus (as defined in paragraph 3 of this Agreement) and
subject to the following understandings:
(a) the Adviser shall furnish a continuous investment program for the
Fund's portfolio and determine from time to time what investments or securities
will be purchased, retained, sold or lent by the Fund, and what portion of the
assets will be invested or held uninvested as cash;
(b) the Adviser shall use the same skill and care in the management of
the Fund's portfolio as it uses in the administration of other accounts for
which it has investment responsibility as agent;
(c) the Adviser, in the performance of its duties and obligations under
this Agreement, shall act in conformity with the Corporation's Articles of
Incorporation and By-Laws and the Prospectus of the Fund and with the
instructions and directions of the Directors of the Corporation and will conform
to and comply with the requirements of the 1940 Act and all other applicable
federal and state laws and regulations including, without limitation, the
regulations and rulings of the New York State Banking Department;
(d) the Adviser shall determine the securities to be purchased, sold or
lent by the Fund and as agent for the Fund will effect portfolio transactions
pursuant to its determinations either directly with the issuer or with any
broker and/or dealer in such securities; in placing orders with brokers and or
dealers the Adviser intends to seek best price and execution for purchases and
sales; the Adviser shall also make recommendations regarding whether or not the
Fund shall enter into repurchase or reverse repurchase agreements and interest
rate futures contracts.
On occasions when the Adviser deems the purchase or sale of a security
to be in the best interest of the Fund as well as other customers, the Adviser,
may, to the extent permitted by applicable laws and regulations, but shall not
be obligated to, aggregate the securities to be so sold or purchased in order to
obtain the best execution and lower brokerage commissions, if any. In such
event, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Adviser in the manner
it considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to such other customers;
(e) the Adviser shall maintain books and records with respect to the
Fund's securities transactions and shall render to the Corporation's Directors
such periodic and special reports as the Directors may reasonably request; and
(f) the investment management services of the Adviser to the Fund under
this Agreement are not to be deemed exclusive, and the Adviser shall be free to
render similar services to others.
3. The Corporation has delivered copies of each of the following
documents to the Adviser and will promptly notify and deliver to it all future
amendments and supplements, it any:
(a) Articles of Incorporation of the Corporation, filed with the State
of Maryland on July 16, 1990 (such Articles of Incorporation, as presently in
effect and as amended from time to time, are herein called the "Articles of
Incorporation");
(b) By-Laws of the Corporation (such By-Laws, as presently in effect
and as amended from time to time, are herein called the "By-Laws");
(c) Certified resolutions of the Directors of the Corporation
authorizing the appointment of the Adviser and approving the form of this
Agreement;
(d) Registration Statement under the 1940 Act and the Securities Act of
1933, as amended, on Form N-1A (No. 33-46805) (the "Registration Statement") as
filed with the Securities and Exchange Commission (the "Commission") on March 1,
1993 relating to the Corporation and the shares of common stock. par value $.001
per share (the "Shares"), of the Fund;
(e) Notification of Registration of the Corporation under the 1940 Act
on Form N-8A as filed with the Commission on July 16, 1990; and
(f) Prospectus of the Fund, dated October , 1998 (such prospectus,
as presently in effect and as amended or supplemented with respect to the Fund
from time to time, is herein called the "Prospectus").
4. The Adviser shall keep the Fund's books and records required to be
maintained by it pursuant to paragraph 2(e). The Adviser agrees that all records
which it maintains for the Fund are the property of the Fund and it will
promptly surrender any of such records to the Fund upon the Fund's request. The
Adviser further agrees to preserve for the periods prescribed by Rule 31a-2 of
the Commission under the 1940 Act any such records as are required to be
maintained by the Adviser with respect to the Fund by Rule 31a-1 of the
Commission under the 1940 Act.
5. During the term of this Agreement the Adviser will pay all expenses
incurred by it in connection with its activities under this Agreement other than
the cost of securities and investments purchased for the Fund (including taxes
and brokerage commissions, if any).
6. For the services provided and the expenses borne pursuant to this
Agreement, the Adviser will receive from the Fund as full compensation therefor
a fee at an annual rate equal to 0.65 % of the Fund's average daily net assets.
This fee will be computed based on net assets at 4:00 P.M. New York time on each
day the New York Stock Exchange is open for trading and will be paid to the
Adviser monthly during the succeeding calendar month.
7. The Adviser 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, except a loss resulting from a breach of fiduciary
duty with respect to the receipt of compensation for services (in which case any
award of damages shall be limited to the period and the amount set forth in
Section 36(b)(3) of the 0000 Xxx) or a loss resulting from wilful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this
Agreement.
8. This Agreement shall continue in effect for two years from the date
of its execution and thereafter, but only so long as its continuance is
specifically approved at least annually in conformity with the requirements of
the 1940 Act; provided, however, that this Agreement may be terminated with
respect to the Fund by the Corporation at any time, without the payment of any
penalty, by vote of a majority of all the Directors of the Corporation or by
"vote of a majority of the outstanding voting securities" of the Fund on 60 days
written notice to the Adviser, or by the Adviser at any time, without the
payment of any penalty, on 90 days written notice to the Corporation. This
Agreement will automatically and immediately terminate in the event of its
"assignment".
9. The Adviser shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided herein or
authorized by the Directors of the Corporation from time to time, have no
authority to act for or represent the Fund or the Corporation in any way or
otherwise be deemed an agent of the Fund or the Corporation.
10. This Agreement may be amended by mutual consent, but the consent of
the Corporation must be approved (a) by vote of a majority of those Directors of
the Corporation 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 amendment, and (b) by "vote of a majority of the outstanding voting
securities" of the Fund.
11. As used in this Agreement, the terms "assignment", "interested
persons" and "vote of a majority of the outstanding voting securities" shall
have the meanings assigned to them respectively in the 1940 Act.
12. Notices of any kind to be given to the Adviser by the Corporation
shall be in writing and shall be duly given if mailed or delivered to the
Adviser at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Treasurer, or at
such other address or to such other individual as shall be specified by the
Adviser to the Corporation. Notices of any kind to be given to the Corporation
by the Adviser shall be in writing and shall be duly given if mailed or
delivered to the Corporation at The 00 Xxxx Xxxxxx Fund, Inc., 00 Xxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Secretary, or at such other address or
to such other individual as shall be specified by the Corporation to the
Adviser.
13. The Directors have authorized the execution of this Agreement in
their capacity as Directors and not individually and the Adviser agrees that
neither the shareholders nor the Directors nor any officer, employee,
representative or agent of the Corporation shall be personally liable upon, nor
shall resort be had to their private property for the satisfaction of,
obligations given, executed or delivered on behalf of or by the Corporation,
that the shareholders, Directors, officers, employees, representatives and
agents of the Corporation shall not be personally liable hereunder, and the
Adviser shall look solely to the property of the Corporation for the
satisfaction of any claim hereunder.
14. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers or Partners designated below on the day and year
first above written.
THE 00 XXXX XXXXXX FUND, INC.
By:/S/XXXXXX X. XXXXXXX, XX.
Xxxxxx X. Xxxxxxx, Xx., Chairman
ATTEST:
/S/XXXXXXXXX X. XXXXXXX
Xxxxxxxxx X. Xxxxxxx
Assistant Secretary
XXXXX BROTHERS XXXXXXXX & CO.
By:/S/XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, Partner
ATTEST:
/S/XXXXXXXXX X. XXXXXXX
Xxxxxxxxx X. Xxxxxxx
Assistant Secretary
WS5081B
