Exhibit 99.B5
INVESTMENT ADVISORY AGREEMENT
XXXXXXX CAPITAL MUTUAL FUND GROUP, INC.
AGREEMENT made this 30th day of September, 1997, by and
between Xxxxxxx Capital Mutual Fund Group, Inc., a Maryland corporation (the
"Corporation"), and Xxxxxx Xxxxxxx, Inc. (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"), consisting of several portfolios of shares, each having its own
investment policies; and
WHEREAS, the Corporation desires to retain the Adviser to
render investment management services to the funds of the Corporation listed in
Schedule A to this Agreement and such other funds as the Corporation and the
Adviser, from time to time, may agree upon in writing and add to Schedule A of
this Agreement (the "Funds"), and the Adviser is willing to render such
services:
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Duties of the Adviser. The Corporation hereby appoints the Adviser
to act as investment adviser to each of the Funds, for the period and on such
terms set forth in this Agreement. The Corporation employs the Adviser to manage
the investment and reinvestment of the assets of the Funds, to continuously
review, supervise and administer the investment program of each of the Funds, to
determine in its discretion the securities to be purchased or sold and the
portion of each such Fund's assets to be held uninvested, to provide the
Corporation with records concerning the Adviser's activities which the
Corporation is required to maintain, and to render regular reports to the
Corporation's officers and Board of Directors (the "Board") concerning the
Adviser's discharge of the foregoing responsibilities.
The Adviser shall discharge the foregoing responsibilities subject to the
control of the officers and the Board, and in compliance with the objectives,
policies and limitations set forth in the Corporation's prospectus(es) and
statement(s) of additional information, as amended or supplemented from time to
time (referred to collectively as the "Prospectus"), and applicable laws and
regulations.
The Adviser accepts such employment and agrees to render the services and to
provide, at its own expense, the office space, furnishings and equipment and the
personnel required by it to perform the services on the terms and for the
compensation provided herein.
2. Fund Transactions. The Adviser is authorized to select the brokers
or dealers that will execute the purchases and sales the portfolio securities
for the Funds and is directed to use its best efforts to obtain the best net
results as described in the Corporation's Prospectus from time to time. The
Adviser agrees to promptly communicate to the officers and Directors of the
Corporation such information relating to portfolio transactions as they may
reasonably request.
It is understood that the Adviser will not be deemed to have acted unlawfully,
or to have breached a fiduciary duty to the Corporation or be in breach of any
obligation owing to the Corporation under this Agreement, or otherwise, by
reason of its having directed a securities transaction on behalf of the
Corporation to (i) a broker-dealer in compliance with the provisions of Section
28(e) of the Securities Exchange Act of 1934 or as described from time to time
in the Prospectus or (ii) an affiliated broker-dealer in compliance with
applicable provisions of the 1940 Act, or the rules and regulations thereunder,
as described from time to time in the Prospectus.
3. Compensation of the Adviser. For the services to be rendered by the
Adviser as provided in Sections 1 and 2 of this Agreement, the Corporation shall
pay to the Adviser at the end of each month, an advisory fee calculated by
applying a monthly rate, based on the annual percentage rates set forth opposite
each Fund's name on Schedule A hereto, to each Fund's average daily net assets
for the month. The Adviser may, in its discretion and from time to time, waive
all or a portion of its fee.
In the event of termination of this Agreement, the fee provided under this
Section shall be computed on the basis of the period ending on the last business
day on which this Agreement is in effect subject to a pro rata adjustment based
on the number of days elapsed in the current month as a percentage of the total
number of days in such month.
4. Other Services. At the request of the Corporation, the Adviser, in
its discretion, may make available to the Corporation office facilities,
equipment, personnel and other services. Such office facilities, equipment,
personnel and services shall be provided for or rendered by the Adviser and
billed to the Corporation at the Adviser's cost.
5. Reports. The Corporation and the Adviser agree to furnish to each
other current prospectuses, proxy statements, reports to shareholders, certified
copies of their financial statements, and such other information with regard to
their affairs as each may reasonably request.
6. Status of Adviser. The services of the Adviser to the Corporation
are not to be deemed exclusive, and the Adviser shall be free to render similar
services to others so long as its services to the Corporation are not impaired
thereby. The Adviser shall be deemed to be an independent contractor and shall,
unless otherwise expressly provided or authorized, have no authority to act for
or represent the Corporation in any way or otherwise be deemed an agent of the
Corporation.
7. Liability of Adviser. The Adviser shall not be liable for any error
of judgment or of law, as for any loss suffered by the Corporation in connection
with the matters to which this Agreement relates, except a loss resulting from
willful misfeasance, bad faith, or gross negligence on the part of the Adviser
in the performance of its obligations and duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
8. Permissible Interests. Subject to and in accordance with the
Articles of Incorporation of the Corporation and the Articles of Incorporation
(or other governing or organizational documents) of the Adviser, Directors,
agents and shareholders of the Corporation are or may be interested in the
Adviser (or any successor thereof) as officers, directors or otherwise;
officers, agents and directors of the Adviser are or may be interested in the
Corporation as Directors, officers, shareholders or otherwise; and the Adviser
(or any successor) is or may be interested in the Corporation as a shareholder
or otherwise. The effect of any such interrelationships shall be governed by
said Articles of Incorporation (or other governing or organizational documents)
and provisions of the 1940 Act. All such interests shall be fully disclosed
between the parties on an ongoing basis and in the Corporation's Prospectus to
the extent required by law. In addition, brokerage transactions for the
Corporation may be effected through the Adviser or affiliates of the Adviser,
acting as agent, if approved by the Board, subject to the rules and regulations
of the Securities and Exchange Commission.
9. Duration and Termination. This Agreement, unless sooner terminated
as provided herein, shall continue until _________, 1999 and thereafter for
additional periods of one year from the anniversary thereof, but only so long as
such continuance is specifically approved at least annually (a) by the vote of a
majority of those members of the Corporation's Board 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, and (b) by the Corporation's
Board or by vote of a majority of the outstanding voting securities of each Fund
of the Corporation; provided, however, that if the shareholders of any Fund fail
to approve the Agreement as provided herein, the Adviser may continue to serve
in such capacity with respect to that Fund in the manner and to the extent
permitted by the 1940 Act and rules thereunder. This Agreement may be terminated
by any Fund of the Corporation at any time, on 60 days' written notice to the
Adviser, without the payment of any penalty, by vote of a majority of the entire
Board of the Corporation or by vote of a majority of the outstanding voting
securities of the Fund. This Agreement may be terminated by the Adviser at any
time, without the payment of any penalty, upon 60 days' written notice to the
Corporation. This Agreement will automatically and immediately terminate in the
event of its assignment. Any notice under this Agreement shall be given in
writing, addressed and delivered or mailed postpaid, to the other party at any
office of such party.
As used in this Section 9, the terms "assignment," "interested persons," and "a
vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in Section 2(a)(4), Section 2(a)(19) and Section
2(a)(42) of the 1940 Act.
10. Amendment of Agreement. This Agreement may be amended by mutual
consent, but the consent of the Corporation must be approved (a) by a vote of a
majority of those members of the Corporation's Board 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) to the extent
required by the 1940 Act, by vote of a majority of the outstanding voting
securities of each Fund of the Corporation.
11. Governing Law. All questions concerning the validity, meaning and
effect of this Agreement shall be determined in accordance with the laws
(without giving effect to the conflict-of-law principles thereof) of the State
of Maryland applicable to contracts made and to be performed in that state.
12. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of this 30 day of September, 1997.
XXXXXXX CAPITAL MUTUAL FUND GROUP, INC. XXXXXX XXXXXXX, INC.
By /s/ Xxxxxxxx X.X. Xxxxx By /s/ Xxxxxx Xxxx
-------------------------- ------------------
Name: Xxxxxxxx X.X. Xxxxx Name: Xxxxxx Xxxx
Title: President Title: Vice Chairman
Schedule A
Fund Rate
---- ----
Xxxxxxx Fund 0.90%
Fledgling Fund 1.00%
