Exhibit 23(d)
INVESTMENT ADVISORY AGREEMENT
THE ONE HUNDRED FUND, INC.
THIS INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made this ____ day
of ________, 1994, between XXXXXX ASSOCIATES, INC., a Delaware corporation
("Xxxxxx Associates"), and THE ONE HUNDRED FUND, INC., a Maryland corporation
(the "Fund").
W I T N E S E T H:
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WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and has registered it shares for public offering under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Fund and Xxxxxx Associates deem it mutually advantageous that
Xxxxxx Associates should assist the directors and officers of the Fund in the
management of the securities portfolio of the Fund.
NOW, THEREFORE, the parties agree as follows:
1. Management Functions. In addition to the expenses
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which Xxxxxx Associates may incur in the performance of its investment advisory
functions under this Agreement, and the expenses which it may expressly
undertake to incur and pay under other agreements with the Fund or otherwise,
Xxxxxx Associates shall incur and pay the following expenses relating to the
Fund's operations without reimbursement from the Fund:
(a) Reasonable compensation, fees and related expenses of the Fund's
officers and its directors (the "Directors"), except for such
Directors who are not interested persons of Xxxxxx Associates;
(b) Rental of offices of the Fund; and
(c) All expenses of promoting the sale of shares of the Fund, other than
expenses incurred in complying with federal and state laws and the law
of any foreign country or territory or other jurisdiction applicable
to the issue, offer or sale of shares of the Fund including without
limitation registration fees and costs, the costs of preparing the
registration statement relating to the Fund and amendments thereto,
and the costs and expenses of preparing, printing, and mailing
prospectuses (and statements of additional information) to persons
other than shareholders of the Fund.
2. Investment Advisory Functions. In its capacity as
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investment adviser to the Fund, Xxxxxx Associates shall have the following
responsibilities:
(a) To furnish continuous advice and recommendations to the Fund as to the
acquisition, holding or disposition of any or all of the securities or
other assets which the Fund may own or contemplate acquiring from time
to time, giving due consideration to the investment policies and
restrictions and the other statements concerning the Fund in the
Fund's Articles of Incorporation, Bylaws, and registration statements
under the 1940 Act and the 1933 Act, and to the provisions of the
Internal Revenue Code, as amended from time to time, applicable to the
Fund as a regulated investment company;
(b) To cause its officers to attend meetings and furnish oral or written
reports, as the Fund may reasonably require, in order to keep the
Directors and appropriate officers of the Fund fully informed as to
the condition of the investment portfolio of the Fund, the investment
recommendations of Xxxxxx Associates, and the investment
considerations which have given rise to those recommendations; and
(c) To supervise the purchase and sale of securities as directed by the
appropriate officers of the Fund.
3. Obligations of Fund. The Fund shall have the following obligations
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under this Agreement:
(a) To keep Xxxxxx Associates continuously and fully informed as to the
composition of the investment portfolio of the Fund and the nature of
all of the Fund's assets and liabilities from time to time;
(b) To furnish Xxxxxx Associates with a certified copy of any financial
statement or report prepared for the Fund by certified or independent
public accountants and with copies of any financial statements or
reports made to the Fund's shareholders or to any governmental body or
securities exchange;
(c) To furnish Xxxxxx Associates with any further materials or information
which Xxxxxx Associates may reasonably request to enable it to perform
its function under this Agreement; and
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(d) To compensate Xxxxxx Associates for its services and reimburse Xxxxxx
Associates for its expenses incurred hereunder in accordance with the
provisions of paragraph 4 hereof.
4. Compensation. The Fund shall pay to Xxxxxx Associates for its
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services under this Agreement a monthly fee, payable on the last day of each
month during which or part of which this Agreement is in effect, of 1/12 of .75%
of the average daily closing net asset value of the Fund for such month. For
the month during which this Agreement becomes effective and the month during
which it terminates, however, there shall be an appropriate proration of the fee
payable for such month based on the number of calendar days of such month during
which this Agreement is effective.
5. Expenses Paid by the Fund. The Fund assumes and shall pay all
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expenses incidental to its operations and business not specifically assumed or
agreed to be paid by Xxxxxx Associates pursuant to Section 1 hereof, including,
but not limited to, investment adviser fees; any compensation, fees or
reimbursements which the Fund pays to its Directors who are not interested
persons of Xxxxxx Associates; compensation of the Fund's custodian, transfer
agent, registrar and dividend disbursing agent; legal, accounting, audit and
printing expenses; administrative, clerical, recordkeeping and bookkeeping
expenses; brokerage commissions and all other expenses in connection with
execution of portfolio transactions (including any appropriate commissions paid
to Xxxxxx Associates or its affiliates for effecting exchange listed,
over-the-counter or other securities transactions); interest; all federal, state
and local taxes (including stamp, excise, income and franchise taxes); costs of
stock certificates and expenses of delivering such certificates to the
purchasers thereof; expenses of local representation in Maryland; expenses of
shareholders' meetings and of preparing, printing and distributing proxy
statements, notices, and reports to shareholders; expenses of preparing and
filing reports and tax returns with federal and state regulatory authorities;
all expenses incurred in complying with all federal and state laws and the laws
of any foreign country applicable to the issue, offer or sale of shares of the
Fund, including, but not limited to, all costs involved in the registration or
qualification of shares of the Fund for sale in any jurisdiction, the costs of
portfolio pricing services and systems for compliance with blue sky laws, and
all costs involved in preparing, printing and mailing prospectuses and
statements of additional information of the Fund; and all fees, dues and other
expenses incurred by the Fund in connection with the membership of the Fund in
any trade association or other investment company organization. To the extent
that Xxxxxx Associates shall perform any of the above described administrative
and clerical functions, including transfer agency, registry, dividend
disbursing, recordkeeping, bookkeeping, accounting and blue sky monitoring and
registration functions, and the preparation of reports and returns, the Fund
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shall pay to Xxxxxx Associates compensation for, or reimburse Xxxxxx Associates
for its expenses incurred in connection with, such services as Xxxxxx Associates
and the Fund shall agree from time to time, any other provision of this
Agreement notwithstanding.
6. Treatment of Investment Advice. The Fund shall treat the investment
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advice and recommendations of Xxxxxx Associates as being advisory only, and
shall retain full control over its own investment policies. However, the
Directors may delegate to the appropriate officers of the Fund, or to a
committee of the Directors, the power to authorize purchases, sales or other
actions affecting the portfolio of the Fund in the interim between meetings of
the Directors.
7. Brokerage Commissions. For purposes of this Agreement, brokerage
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commissions paid by the Fund upon the purchase or sale of its portfolio
securities shall be considered a cost of securities of the Fund and shall be
paid by the Fund. Xxxxxx Associates is authorized and directed to place Fund
portfolio transactions only with brokers and dealers who render satisfactory
service in the execution of orders at the most favorable prices and at
reasonable commission rates, provided, however, that Xxxxxx Associates may pay a
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another broker or dealer would have
charged for effecting that transaction if Xxxxxx Associates determines in good
faith that such amount of commission was reasonable in relation to the value of
the brokerage and research services provided by such broker or dealer viewed in
terms of either that particular transaction or the overall responsibilities of
Xxxxxx Associates. Xxxxxx Associates is also authorized to consider sales of
Fund shares as a factor in selecting broker-dealers to execute Fund portfolio
transactions. In placing portfolio business with such broker-dealers, Xxxxxx
Associates shall seek the best execution of each transaction. Subject to the
terms of this Agreement and the applicable requirements and provisions of the
law, including the Investment Company Act of 1940 and the Securities Exchange
Act of 1934, as amended, and in the event that Xxxxxx Associates or an affiliate
is registered as a broker-dealer, Xxxxxx Associates may select a broker or
dealer with which it or the Fund is affiliated. Xxxxxx Associates or such
affiliated broker-dealer may effect or execute Fund portfolio transactions,
whether on a securities exchange or in the over-the-counter market, and receive
separate compensation from the Fund therefor. Notwithstanding the foregoing,
the Fund shall retain the right to direct the placement of all portfolio
transactions, and the Directors of the Fund may establish policies or guidelines
to be followed by Xxxxxx Associates in placing portfolio transactions for the
Fund pursuant to the foregoing provisions. Xxxxxx Associates shall report on
the placement of portfolio transactions in the prior fiscal quarter at each
quarterly meeting of such Directors.
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8. Termination. This Agreement may be terminated at any time, without
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penalty, by the Directors of the Fund, or by the shareholders of the Fund acting
by vote of at least a majority of its outstanding voting securities, provided in
either case that sixty (60) days' advance written notice of termination be given
to Xxxxxx Associates at its principal place of business. This Agreement may be
terminated by Xxxxxx Associates at any time, without penalty, by giving sixty
(60) days' advance written notice of termination to the Fund, addressed to its
principal place of business.
9. Assignment. This Agreement shall terminate automatically in the event
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of any assignment of this Agreement.
10. Term. This Agreement shall continue in effect until the last day of
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April, 1995, unless sooner terminated in accordance with its terms, and shall
continue in effect from year to year thereafter only so long as such continuance
is specifically approved at least annually by the vote of a majority of the
Directors of the Fund who are not parties hereto or interested persons of any
such party, cast in person at a meeting called for the purpose of voting on the
approval of the terms of such renewal, and by either the Directors of the Fund
or the affirmative vote of a majority of the outstanding voting securities of
the Fund. The annual approvals provided for herein shall be effective to
continue this Agreement from year to year if given within a period beginning not
more than sixty (60) days prior to the last day of April of each applicable
year, notwithstanding the fact that more than three hundred sixty-five (365)
days may have elapsed since the date on which such approval was last given.
11. Amendments. This Agreement may be amended by the parties only if such
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amendment is specifically approved (i) by a majority of the Directors, including
a majority of the Directors who are not interested persons of Xxxxxx Associates
and, if required by applicable law, (ii) by the affirmative vote of a majority
of the outstanding voting securities of the Fund.
12. Allocation of Expenses. The Directors shall determine the basis for
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making an appropriate allocation of the Fund's expenses (other than those
directly attributable to the Fund) between the Fund and any other series of the
Fund and between the Fund and other investment companies managed by Xxxxxx
Associates.
13. Activities of Xxxxxx Associates. The services of Xxxxxx Associates to
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the Fund hereunder are not to be deemed to be exclusive, and Xxxxxx Associates
and its affiliates are free to render services to other parties. It is
understood that Directors, officers and shareholders of the Fund are or may
become interested in Xxxxxx Associates as directors, officers and shareholders
of Xxxxxx Associates, that directors, officers, employees and shareholders of
Xxxxxx Associates are or may become
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similarly interested in the Fund, and that Xxxxxx Associates may become
interested in the Fund as a shareholder or otherwise.
14. Certain Definitions. The terms "vote of a majority of the outstanding
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voting securities", "assignment" and "interested persons" when used herein,
shall have the respective meanings specified in the 1940 Act, as now in effect
or hereafter amended, and the rules and regulations thereunder, subject to such
orders, exemptions and interpretations as may be issued by the Securities and
Exchange Commission under said Act and as may be then in effect.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Investment Advisory Agreement as of the date and year first
above written.
XXXXXX ASSOCIATES, INC.
By
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THE ONE HUNDRED FUND, INC.
By
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