EXHIBIT 99.5(a)
INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this 15th day of July, 1982, by and
between XXXXXXX XXXXX PHOENIX FUND, INC., a Maryland cor-
poration (hereinafter referred to as the 'Fund"), and FUND
ASSET MANAGEMENT, INC., a Delaware corporation (herein-
after referred to as the *Investment Adviser').
W I T N E S S E T H:
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WHEREAS; the Fund is engaged in business as a diversi-
fied open-end investment company registered under the in-
vestment Company Act of 1940, as amended (hereinafter re-
ferred 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 ser-
vices to the Fund in the manner and on 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 manage-
ment 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 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.
(a) Management Services. The Investment Adviser shall
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perform (or arrange for the performance by affiliates of) the
management and administrative services necessary for the
2.
operation of the Fund including processing shareholder
orders, administering shareholder accounts and handling
shareholder relations. 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, ac-
countants, attorneys, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and such other
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 obliga-
tions 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 Ad-
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viser shall 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 the Fund and shall determine from time to time which
3.
securities shall be purchased, sold or exchanged and what
portion of the assets of the Fund shall be held in the
various securities in which the Fund invests or cash, sub-
ject always to the restrictions of the Articles of incorpo-
ration and By-Laws of the Fund, as amended from time to time,
the provisions of the Investment Company Act and the state-
ments relating to the Fund's investment objectives, investment
policies and investment restrictions as the same are set forth
in the currently effective prospectus relating to the shares
of the Fund under the Securities Act of 1933, as amended (the
"Prospectus"). The Investment Adviser shall also make deci-
sions 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 invest-
ment policy and notify the Investment Adviser thereof in
writing, the Investment Adviser shall be bound by such deter-
mination 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
4.
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 price within the
policy guidelines determined by the Board of Directors of
the Fund and set forth in the Prospectus. 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 11
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Allocation of Charges and Expenses
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(a) The Investment Adviser. The Investment Adviser
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assumes 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.
5.
(b) The Fund. The Fund assumes and shall pay or
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cause to be paid all other expenses of the Fund (except for
he 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 (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, litiga-
tion 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 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 ren-
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dered, the facilities furnished and expenses assumed by the
6.
Investment Adviser, the Fund shall pay to the Investment
adviser 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 net asset value contained in the
Prospectus, at the annual rate of 1.0% of the average daily
net assets of the Fund, commencing on the day following
effectiveness hereof. During any period when the determina-
tion of net asset value is suspended by the Board of Direc-
tors 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
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expenses of 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 regula-
tions thereunder, as such limitations may be raised or
lowered from time to time, the Investment Adviser shall
reduce its management fee by the extent 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
7.
excluded from such expenses the amount of any interest,
taxes, brokerage commissions 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 used in this Article IV, the term
"Investment Adviser" shall include any affiliates of the
8.
investment Adviser performing services for the Fund
Contemplated hereby and directors, officers and em-
ployees 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
that 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 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 force until March
31, 1984 and thereafter, but only so long as such continu-
ance is specifically approved at least annually by (i) the
Board of Directors of the Fund, or by the vote of a majority
of the outstanding voting securities of the Fund, and (ii) a
majority of those directors who are not parties to this
9.
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 Agree-
ment 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
----------------------------
The terms "vote of a majority of the outstanding
voting securities", "assignment", "affiliated person' and
10.
"interested 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 PHOENIX FUND, INC.
BY /S/ XXXXXX XXXXXX
FUND ASSET MANAGEMENT, INC.
BY /S/
11.
