INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT
This INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT, made this 23 day of
April, 1982, by and between Xxxx Xxxxx Value Trust, Inc., a Maryland corporation
(the "Fund"), and Xxxx Xxxxx Fund Adviser, Inc., a Maryland corporation (the
"Adviser").
WHEREAS, the Fund is registered as an open-end, diversified investment
company under the Investment Company Act of 1940 (the "1940 Act") and has
registered its shares of common stock for sale to the public under the
Securities Act of 1933 and various state securities laws; and
WHEREAS, the Fund wishes to retain the Adviser to provide investment
advisory, management, and administrative services to the Fund; and
WHEREAS, the Adviser is willing to furnish such services on the terms
and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed as follows:
1. The Fund shall at all times keep the Adviser fully informed with
regard to the securities owned by it, its funds available, or to become
available, for investment, and generally as to the condition of its affairs. It
shall furnish the Adviser with such other documents and information with regard
to its affairs as the Adviser may from time to time reasonably request.
2. (a) Subject to the direction and control of the Fund's Board of
Directors, the Adviser shall regularly provide the Fund with investment
research, advice, management and supervision and shall furnish a continuous
investment program for the Fund's portfolio of securities consistent with the
Fund's investment goals and policies. The Adviser shall determine from time to
time what securities will be purchased, retained or sold by the Fund, and shall
implement those decisions, all subject to the provisions of the Fund's Articles
of Incorporation and By-laws, the 1940 Act, the applicable rules and regulations
of the Securities and Exchange Commission, and other applicable federal and
state law, as well as the investment goals and policies of the Fund. The Adviser
shall also provide advice and recommendations with respect to other aspects of
the business and affairs of the Fund, and shall perform such other functions of
management and supervision as may be directed by the Board of Directors of the
Fund.
(b) The Fund hereby authorizes any entity or person associated with
the Adviser which is a member of a national securities exchange to effect any
transaction on the exchange for the account of the Fund which is permitted by
Section 11(a) of the Securities Exchange Act of 1934 and Rule 11a2-2(T)
thereunder, and the Fund hereby consents to the retention of compensation for
such transactions in accordance with Rule 11a2-2(T)(2)(iv).
3. (a) The Adviser, at its expense, shall supply the Board of Directors
and officers of the Fund with all statistical information and reports reasonably
required by them and reasonably available to the Adviser and
shall furnish the Fund with office facilities, including space, furniture and
equipment and all personnel reasonably necessary for the operation of the Fund.
The Adviser shall reimburse the Fund for all auditing and accounting expenses
and for the fees of the Fund's independent directors. The Adviser shall assume
all organizational expenses of the Fund. The Adviser shall maintain all books
and records with respect to the Fund's securities transactions and keep the
Fund's books of account in accordance with all applicable federal and state laws
and regulations. The Adviser shall authorize and permit any of its directors,
officers and employees, who may be elected as directors or officers of the Fund,
to serve in the capacitites in which they are elected.
(b) Other than as herein specifically indicated, the Adviser
shall not be responsible for the Fund's expenses. Specifically, the Adviser will
not be responsible, except to the extent of the reasonable compensation of
employees of the Fund whose services may be used by the Adviser hereunder, for
any of the following expenses of the Fund, which expenses shall be borne by the
Fund: legal expenses; interest, taxes, governmental fees or membership dues;
brokerage commissions or charges, if any; fees of custodians, transfer agents,
registrars or other agents; expenses of preparing share certificates; expenses
relating to the redemption or repurchase of the Fund's shares; expenses of
registering and qualifying Fund shares for the sale under applicable federal and
state law; expenses of preparing, setting in print, printing and distributing
prospectuses, reports, notices and dividends to Fund shareholders; cost of
stationary; costs of stockholders and other meetings of the Fund; traveling
expenses of officers, directors and employees of the Fund, if any; and the
Fund's pro rata portion of premiums on any fidelity bond and other insurance
covering the Fund and its officers and directors.
4. No director, officer or employee of the Fund shall receive from the
Fund any salary or other compensation as such director, officer or employee
while he is at the same time a director, officer, or employee of the Adviser or
any affiliated company of the Adviser. This paragraph shall not apply to
directors, executive committee members, consultants and other persons who are
not regular members of the Adviser's or any affiliated company's staff.
5. As compensation for the services performed and the facilities
furnished and expenses assumed by the Adviser, including the services of any
consultants retained by the Adviser, the Fund shall pay the Adviser, as promptly
as possible after the last day of each month, a fee, calculated daily, of 1%
annually of the Fund's first $100 million in average daily net assets; and 3/4
of 1% annually of average daily net assets in excess of $100 million. The first
payment of the fee shall be made as promptly as possible at the end of the month
next succeeding the effective date of this Agreement, and shall constitute a
full payment of the fee due the Adviser for all services prior to that date. If
this Agreement is terminated as of any date not the last day of a month, such
fee shall be paid as promptly as possible after such date of termination, shall
be based on the average daily net assets of the Fund in that period from the
beginning of such month to such date of termination, and shall be that
proportion of such average daily net assets as the number of business days in
such period bears to the number of business days in such month. The average
daily net assets of the Fund shall in all cases be based only on business days
and be computed as the time of
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the regular close of business of the New York Stock Exchange, or such other
time as may be determined by the Board of Directors of the Fund. Each such
payment shall be accompanied by a report of the Fund prepared either by the Fund
or by a reputable firm of independent accountants which shall show the
amount properly payable to the Adviser under this Agreement and the detailed
computation thereof.
6. The Adviser assumes no responsibility under this Agreement other
than to render the services called for hereunder, in good faith, and shall not
be responsible for any action of the Board of Directors of the Fund in following
or declining to follow any advice or recommendations of the Adviser; provided,
that nothing in this Agreement shall protect the Adviser against any liability
to the Fund or its stockholders to which it would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
hereunder.
7. Nothing in this Agreement shall limit or restrict the right of any
director, officer, or employee of the Adviser who may also be a director,
officer, or employee of the Fund, to engage in any other business or to devote
his time and attention in part to the management or other aspects of any other
business, whether of a similar nature or a dissimilar nature, nor to limit or
restrict the right of the Adviser to engage in any other business or to render
services of any kind, including investment advisory and management services, to
any other corporation, firm, individual or association.
8. As used in this Agreement, the terms "securities", and "net assets",
shall have the meanings ascribed to them in the Articles of Incorporation of the
Fund; and the terms "assignment", "interested person", and "majority of the
outstanding voting securities" shall have the meanings given to them by Section
2(a) of the 1940 Act, subject to such exemptions as may be granted by the
Securities and Exchange Commission by any rule, regulation or order.
9. Subject to the provision of paragraphs 10 and 12 below, this
Agreement will remain in effect for one year from the date of its execution and
from year to year thereafter, provided that the Adviser does not notify the Fund
in writing at least sixty (60) days prior to the expiration date in any year
that it does not wish continuance of the Agreement for an additional year.
10. This Agreement shall terminate automatically in the event of its
assignment by the Adviser and shall not be assignable by the Fund without the
consent of the Adviser. This Agreement may also 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 by sixty
(60) days' written notice addressed to the Adviser at its principal place of
business.
11. In the event this Agreement is terminated by either party or upon
written notice from the Adviser at any time, the Fund hereby agrees that it will
eliminate from its corporate name any reference to the name of "Xxxx Xxxxx." The
Fund shall have the non-exclusive use of the name "Xxxx Xxxxx" in whole or in
part only so long as this Agreement is effective or until such notice is given.
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12. This Agreement shall be submitted for approval to the Board of
Directors of the Fund annually and shall continue in effect only so long as
specifically approved annually by vote of a majority of the directors of the
Fund who are not parties to this Agreement or interested persons of such
parties, cast in person at a meeting called for that purpose, and either by vote
of the holders of a majority of the outstanding voting securities of the Fund or
by majority vote of the Fund's Board of Directors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers thereunto duly authorized.
Attest: XXXX XXXXX VALUE TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxx
Attest: XXXX XXXXX FUND ADVISER, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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