AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED AGREEMENT, dated as of the 1st day of January,
2004, by and between XXXXXXXXXXX EMERGING TECHNOLOGIES FUND, a
Massachusetts business trust (the "Fund"), and OPPENHEIMERFUNDS, INC.
(hereinafter called "OFI").
WHEREAS, the Fund is an open-end, diversified management investment
company registered as such with the Securities and Exchange Commission (the
"Commission") pursuant to the Investment Company Act of 1940 (the
"Investment Company Act"), and OFI is a registered investment adviser;
WHEREAS, the Fund desires that OFI shall act as its investment adviser
pursuant to this Agreement;
WHEREAS, the Fund and OFI have entered into and Investment Advisory
Agreement dated April 25, 2000;
WHEREAS, the Fund and OFI have agreed, per resolution dated December
12th, 2003 of the Fund's Board of Trustees, to reduced the Fund's
management fee on assets in excess of $200 million;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, it is agreed by and between the parties, as follows:
1. General Provisions:
The Fund hereby employs OFI and OFI hereby undertakes to act as the
investment adviser of the Fund and to perform for the Fund such other
duties and functions as set forth in this Agreement. OFI shall, in all
matters, give to the Fund and its Board of Trustees (the "Trustees") the
benefit of its best judgement, effort, advice and recommendations and
shall, at all times conform to, and use its best efforts to enable the Fund
to conform to: (i) the provisions of the Investment Company Act and any
rules or regulations thereunder; (ii) any other applicable provisions of
state or Federal law; (iii) the provisions of the Declaration of Trust and
By-Laws of the Fund as amended from time to time; (iv) policies and
determinations of the Trustees; (v) the fundamental policies and investment
restrictions of the Fund as reflected in the registration statement of the
Fund under the Investment Company Act or as such policies may, from time to
time, be amended; and (vi) the Prospectus and Statement of Additional
Information of the Fund in effect from time to time. The appropriate
officers and employees of OFI shall be available upon reasonable notice for
consultation with any of the Trustees and officers of the Fund with respect
to any matters dealing with the business and affairs of the Fund, including
the valuation of portfolio securities of the Fund which are either not
registered for public sale or not traded on any securities market.
2. Investment Management:
(a) OFI shall, subject to the direction and control by the Trustees:
(i) regularly provide investment advice and recommendations to the Company
with respect to the investments, investment policies and the purchase and
sale of securities and other investments for the Fund; (ii) supervise
continuously the investment program of the Fund and the composition of its
portfolio and determine what securities shall be purchased or sold by the
Fund; and (iii) arrange, subject to the provisions of paragraph 7 hereof,
for the purchase and sale of securities and other investments for the Fund.
(b) Provided that the Company shall not be required to pay any
compensation for services under this Agreement other than as provided by
the terms of the Agreement and subject to the provisions of paragraph "7"
hereof, OFI may obtain investment information, research or assistance from
any other person, firm or corporation to supplement, update or otherwise
improve its investment management services, including entering into
sub-advisory agreements with other affiliated or unaffiliated registered
investment advisors to obtain specialized services.
(c) Provided that nothing herein shall be deemed to protect OFI from
willful misfeasance, bad faith or gross negligence in the performance of
its duties, or reckless disregard of its obligations and duties under this
Agreement, OFI shall not be liable for any loss sustained by reason of good
faith errors or omissions in connection with any matters to which this
Agreement relates.
(d) Nothing in this Agreement shall prevent OFI or any entity
controlling, controlled by or under common control with OFI or any officer
thereof from acting as investment adviser for any other person, firm or
corporation or in any way limit or restrict OFI or any of its directors,
officers, stockholders or employees from buying, selling or trading any
securities or other investments for its or their own account or for the
account of others for whom it or they may be acting, provided that such
activities will not adversely affect or otherwise impair the performance by
OFI of its duties and obligations under this Agreement.
3. Other Duties of OFI:
OFI shall, at its own expense, provide and supervise the activities of
all administrative and clerical personnel as shall be required to provide
effective corporate administration for the Fund, including the compilation
and maintenance of such records with respect to its operations as may
reasonably be required; the preparation and filing of such reports with
respect thereto as shall be required by the Commission; composition of
periodic reports with respect to operations of the Fund for its
shareholders; composition of proxy materials for meetings of the Fund's
shareholders; and the composition of such registration statements as may be
required by Federal and state securities laws for continuous public sale of
Shares of the Fund. OFI shall, at its own cost and expense, also provide
the Fund with adequate office space, facilities and equipment.
4. Allocation of Expenses:
All other costs and expenses of the Fund not expressly assumed by OFI
under this Agreement, or to be paid by the Distributor of the Shares of the
Fund, shall be paid by the Fund, including, but not limited to: (i)
interest, taxes and governmental fees; (ii) brokerage commissions and other
expenses incurred in acquiring or disposing of the portfolio securities and
other investments of the Fund; (iii) insurance premiums for fidelity and
other coverage requisite to its operations; (iv) compensation and expenses
of its Trustees other than those affiliated with OFI; (v) legal and audit
expenses; (vi) custodian and transfer agent fees and expenses; (vii)
expenses incident to the redemption of its Shares; (viii) expenses incident
to the issuance of its Shares against payment therefor by or on behalf of
the subscribers thereto; (ix) fees and expenses, other than as herein above
provided, incident to the registration under Federal securities laws of
Shares of the Fund for public sale; (x) expenses of printing and mailing
reports, notices and proxy materials to shareholders of the Fund; (xi)
except as noted above, all other expenses incidental to holding meetings of
the Fund's shareholders; and (xii) such extraordinary non-recurring
expenses as may arise, including litigation, affecting the Fund thereof and
any legal obligation which the Fund may have to indemnify its officers and
Trustees with respect thereto. Any officers or employees of OFI (or any
entity controlling, controlled by, or under common control with OFI) who
also serve as officers, Trustees or employees of the Fund shall not receive
any compensation from the Fund for their services.
5. Compensation of OFI:
The Fund agrees to pay OFI and OFI agrees to accept as full
compensation for the performance of all functions and duties on its part to
be performed pursuant to the provisions hereof, a fee computed on the
aggregate net assets of the Fund as of the close of each business day and
payable monthly at the following annual rates:
1.00% of the first $200 million of average annual net assets;
0.95% of the next $200 million;
0.90% of the next $200 million; and
0.85% of the average annual net assets over $600 million
6. Use of Name "Xxxxxxxxxxx":
OFI hereby grants to the Fund a royalty-free, non-exclusive license to
use the name "Xxxxxxxxxxx" in the name of the Fund for the duration of this
Agreement and any extensions or renewals thereof. Such license may, upon
termination of this Agreement, be terminated by OFI, in which event the
Company shall promptly take whatever action may be necessary to change its
name and discontinue any further use of the name "Xxxxxxxxxxx" in the name
of the Fund or otherwise. The name "Xxxxxxxxxxx" may be used or licensed by
OFI in connection with any of its activities, or licensed by OFI to any
other party.
7. Portfolio Transactions and Brokerage:
(a) OFI (and any Sub Advisor) is authorized, in arranging the purchase
and sale of the portfolio securities and other investments of the Fund to
employ or deal with such members of securities or commodities exchanges,
brokers or dealers (hereinafter "broker-dealers"), including "affiliated"
broker-dealers (as that term is defined in the Investment Company Act), as
may, in its best judgment, implement the policy of the Fund to obtain, at
reasonable expense, the "best execution" (prompt and reliable execution at
the most favorable security price obtainable) of the portfolio transactions
of the Fund as well as to obtain, consistent with the provisions of
subparagraph (c) of this paragraph 7, the benefit of such investment
information or research as will be of significant assistance to the
performance by OFI (and any Sub Advisor) of its investment management
functions.
(b) OFI (and any Sub Advisor) shall select broker-dealers to effect
the portfolio transactions of the Fund on the basis of its estimate of
their ability to obtain best execution of particular and related portfolio
transactions. The abilities of a broker-dealer to obtain best execution of
particular portfolio transaction(s) will be judged by OFI (or any Sub
Advisor) on the basis of all relevant factors and considerations including,
insofar as feasible, the execution capabilities required by the transaction
or transactions; the ability and willingness of the broker-dealer to
facilitate the portfolio transactions of the Fund by participating therein
for its own account; the importance to the Fund of speed, efficiency or
confidentiality; the broker-dealer's apparent familiarity with sources from
or to whom particular securities or other investments might be purchased or
sold; as well as any other matters relevant to the selection of a
broker-dealer for particular and related transactions of the Fund.
(c) OFI (and any Sub Advisor) shall have discretion, in the interest
of the Fund, to allocate brokerage on the portfolio transactions of the
Fund to broker-dealers, other than affiliated broker-dealers, qualified to
obtain best execution of such transactions who provide brokerage and/or
research services (as such services are defined in Section 28(e)(3) of the
Securities Exchange Act of 1934) for the Fund and/or other accounts for
which OFI or its affiliates (or any Sub Advisor) exercise "investment
discretion" (as that term is defined in Section 3(a)(35) of the Securities
Exchange Act of 1934) and to cause the Fund to pay such broker-dealers a
commission for effecting a portfolio transaction for the Fund that is in
excess of the amount of commission another broker-dealer adequately
qualified to effect such transaction would have charged for effecting that
transaction, if OFI (or any Sub Advisor) determines, in good faith, that
such commission is reasonable in relation to the value of the brokerage
and/or research services provided by such broker-dealer viewed in terms of
either that particular transaction or the overall responsibilities of OFI
or its affiliates (or any Sub Advisor) with respect to accounts as to which
they exercise investment discretion. In reaching such determination, OFI
(or any Sub Advisor) will not be required to place or attempt to place a
specific dollar value on the brokerage and/or research services provided or
being provided by such broker-dealer. In demonstrating that such
determinations were made in good faith, OFI (and any Sub Advisor) shall be
prepared to show that all commissions were allocated for purposes
contemplated by this Agreement and that the total commissions paid by the
Fund over a representative period selected by the Fund's Trustees were
reasonable in relation to the benefits to the Fund.
(d) OFI (or any Sub Advisor) shall have no duty or obligation to seek
advance competitive bidding for the most favorable commission rate
applicable to any particular portfolio transactions or to select any
broker-dealer on the basis of its purported or "posted" commission rate but
will, to the best of its ability, endeavor to be aware of the current level
of the charges of eligible broker-dealers and to minimize the expense
incurred by the Fund for effecting its portfolio transactions to the extent
consistent with the interests and policies of the Fund as established by
the determinations of the Board of Trustees of the Fund and the provisions
of this paragraph 7.
(e) The Fund recognizes that an affiliated broker-dealer: (i) may act
as one of the Fund's regular brokers for the Fund so long as it is lawful
for it so to act; (ii) may be a major recipient of brokerage commissions
paid by the Fund; and (iii) may effect portfolio transactions for the Fund
only if the commissions, fees or other remuneration received or to be
received by it are determined in accordance with procedures contemplated by
any rule, regulation or order adopted under the Investment Company Act to
be within the permissible level of such commissions.
(f) Subject to the foregoing provisions of this paragraph 7, OFI (and
any Sub Advisor) may also consider sales of Shares of the Fund, and the
other funds advised by OFI and its affiliates as a factor in the selection
of broker-dealers for its portfolio transactions.
8. Duration:
This Agreement will take effect on the date first set forth above. As
of that date, it replaces the Fund's investment advisory agreement dated
April 25, 2000. Unless earlier terminated pursuant to paragraph 10 hereof,
this Agreement shall remain in effect for a period of two (2) years and
thereafter from year to year, so long as such continuance shall be approved
at least annually by the Fund's Board of Trustees, including the vote of
the majority of the Trustees of the Fund who are not parties to this
Agreement or "interested persons" (as defined in the Investment Company
Act) of any such party, cast in person at a meeting called for the purpose
of voting on such approval, or by the holders of a "majority" (as defined
in the Investment Company Act) of the outstanding voting securities of the
Fund, and by such a vote of the Fund's Board of Trustees.
9. Disclaimer of Shareholder or Trustee Liability:
OFI understands and agrees that the obligations of the Fund under this
Agreement are not binding upon any shareholder or Trustee of the Fund
personally, but bind only the Fund and the Fund's property; OFI represents
that it has notice of the provisions of the Declaration of Trust of the
Fund disclaiming shareholder or Trustee liability for acts or obligations
of the Fund.
10. Termination.
This Agreement may be terminated (i) by OFI at any time without
penalty upon sixty days' written notice to the Fund (which notice may be
waived by the Fund); or (ii) by the Fund at any time without penalty upon
sixty days' written notice to OFI (which notice may be waived by OFI)
provided that such termination by the Fund shall be directed or approved by
the vote of a majority of all of the Trustees of the Fund then in office or
by the vote of the holders of a "majority" of the outstanding voting
securities of the Fund (as defined in the Investment Company Act).
11. Assignment or Amendment:
This Agreement may not be amended, or the rights of OFI hereunder
sold, transferred, pledged or otherwise in any manner encumbered without
the affirmative vote or written consent of the holders of the "majority" of
the outstanding voting securities of the Company. This Agreement shall
automatically and immediately terminate in the event of its "assignment,"
as defined in the Investment Company Act.
12. Definitions:
The terms and provisions of the Agreement shall be interpreted and
defined in a manner consistent with the provisions and definitions
contained in the Investment Company Act.
XXXXXXXXXXX EMERGING TECHNOLOGIES FUND
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Secretary
OPPENHEIMERFUNDS, INC.
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Senior Vice President & General Counsel
