Exhibit 5(e)(2)
XXXXXXX VARIABLE LIFE INVESTMENT FUND
Two International Place
Boston, Massachusetts 02110
August 4, 1997
Xxxxxxx, Xxxxxxx & Xxxxx, Inc.
Two International Place
Boston, MA 02110
Investment Advisory Agreement
Capital Growth Portfolio
Dear Sirs:
Xxxxxxx Variable Life Investment Fund (the "Fund") has been established
as a Massachusetts business trust to engage in the business of an investment
company. The shares of beneficial interest of the Fund ("Shares") are divided
into multiple series including Capital Growth Portfolio (the "Portfolio"), as
established pursuant to a written instrument executed by the Trustees of the
Fund. Portfolios may be terminated, and additional Portfolios established, from
time to time by action of the Trustees. The Fund on behalf of the Portfolio has
selected you to act as the sole investment adviser for the Portfolio and to
provide certain other services, as more fully set forth below, and you are
willing to act as such investment adviser and to perform such services under the
terms and conditions hereinafter set forth. Accordingly, the Fund agrees with
you as follows:
1. Delivery of Fund Documents. The Fund has furnished you with copies
properly certified or authenticated of each of the following:
(a) Declaration of Trust of the Fund, dated March 15, 1985, as
amended from time to time.
(b) By-Laws of the Fund as in effect on the date hereof.
(c) Resolutions of the Trustees of the Fund selecting you as
investment adviser and approving the form of this Agreement.
(d) Written Instruments to Establish and Designate Separate Series of
Shares.
The Fund will furnish you from time to time with copies, properly certified or
authenticated, of all amendments of or supplements to the foregoing, if any.
2. Name of Fund. The Fund may use any name derived from the name
"Xxxxxxx, Xxxxxxx & Xxxxx", if it elects to do so, only for so long as this
Agreement, any other Investment Advisory Agreement between you and the Fund, or
any extension, renewal or amendment hereof or thereof remains in effect,
including any similar agreement with any organization which shall have succeeded
to your business as investment adviser. At such time as such an agreement shall
no longer be in effect, the Fund will (to the extent that it lawfully can) cease
to use such a name or any other name indicating that it is advised by or
otherwise connected with you or any organization which shall have so succeeded
to your business.
3. Advisory Services. You will regularly provide the Portfolio with
investment research, advice and supervision and will furnish continuously an
investment program consistent with the investment objectives and policies of the
Portfolio and of the Fund. You will determine what securities shall be purchased
for the Portfolio, what securities shall be held or sold, and what portion of
assets shall be held uninvested, subject always to the provisions of the Fund's
Declaration of Trust and By-Laws and of the Investment Company Act of 1940, as
amended, and to the investment objectives, policies and restrictions of the
Portfolio and of the Fund, as each of the same shall be from time to time in
effect, and subject, further, to such policies and instructions as the Trustees
may from time to time establish. You shall advise and assist the officers of the
Fund in taking such steps as are necessary or appropriate to carry out the
decisions of the Trustees and the appropriate committees of the Trustees
regarding the conduct of the business of the Fund.
4. Allocation of Charges and Expenses. You will pay the compensation
and expenses of all officers and executive employees of the Fund and will make
available, without expense to the Fund, the services of such of your managing
directors, principals and employees as may duly be elected officers or Trustees
of the Fund, subject to their individual consent to serve and to any limitations
imposed by law. You will pay the Portfolio's office rent and will provide
investment advisory research and statistical facilities and all clerical
services relating to research, statistical and investment work. You will not be
required to pay any expenses of the Fund other than those specifically allocated
to you in this paragraph 4. In particular, but without limiting the generality
of the foregoing, you will not be required to pay: organization expenses of the
Fund; clerical salaries; fees and expenses incurred by the Fund
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in connection with membership in investment company organizations; brokers'
commissions; payment for portfolio pricing services to a pricing agent, if any;
legal, auditing or accounting expenses; taxes or governmental fees; the fees and
expenses of the transfer agent of the Fund; the cost of preparing share
certificates or any other expenses, including clerical expenses of issue,
redemption or repurchase of shares of the Fund; the expenses of and fees for
registering or qualifying securities for sale; the fees and expenses of Trustees
of the Fund who are not affiliated with you; the cost of preparing and
distributing reports and notices to shareholders; public and investor relations
expenses; or the fees or disbursements of custodians of the Fund's assets,
including expenses incurred in the performance of any obligations enumerated by
the Declaration of Trust or By-Laws of the Fund insofar as they govern
agreements with any such custodian. You shall not be required to pay expenses of
any activity which is primarily intended to result in the sale of shares,
including clerical expenses, of offer, sale, underwriting and distribution of
the Fund's shares if and to the extent that such expenses (i) are required to be
borne by a principal underwriter which acts as the distributor of the Fund's
shares pursuant to an underwriting agreement which provides that the underwriter
shall assume some or all of such expenses, or (ii) the Fund on behalf of the
Portfolio shall have adopted a plan in conformity with Rule 12b-1 under the
Investment Company Act of 1940, as amended, providing that the Fund shall assume
some or all of such expenses. You shall be required to pay such of the foregoing
expenses as are not required to be paid by the principal underwriter pursuant to
the underwriting agreement or are not permitted to be paid by the Fund pursuant
to such a plan.
5. Compensation of the Adviser. For all services to be rendered and
payments made as provided in paragraphs 3 and 4 hereof, the Fund on behalf of
the Portfolio will pay you on the last day of each month a fee equal to the sum
of 1/12 of .475% of the average daily net assets of the Portfolio for such
month; provided that, for any calendar month during which the average of such
values exceeds $500,000,000, the fee payable for that month based on the portion
of the average of such values in excess of $500,000,000 shall be 1/12 of .450%
of such portion. The "average daily net assets" of the Portfolio are defined as
the average of the values placed on the net assets of the Portfolio as of the
close of the New York Stock Exchange on each day on which the net asset value of
the Portfolio is determined consistent with the provisions of Rule 22c-1 under
the Investment Company Act of 1940 or, if the Fund lawfully determines the value
of the net assets of the Portfolio as of some other time on each business day,
as of such time. The value of net assets shall be determined pursuant to the
applicable provisions of the Declaration of Trust of the Fund. If, pursuant to
such
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provisions, the determination of net asset value is suspended for any particular
business day, then for the purposes of this paragraph 5, the value of the net
assets of the Portfolio as last determined shall be deemed to be the value of
the net assets as of the close of the New York Stock Exchange, or as of such
other time as the value of the net assets of the Portfolio may lawfully be
determined, on that day. If the determination of the net asset value of the
shares of the Portfolio has been suspended pursuant to the Declaration of Trust
of the Fund for a period including such month, your compensation payable at the
end of such month shall be computed on the basis of the value of the net assets
of the Portfolio of the Fund as last determined (whether during or prior to such
month). If the Fund determines the value of the net assets of the Portfolio more
than once on any day, the last such determination thereof on that day shall be
deemed to be the sole determination thereof on that day for the purposes of this
paragraph 5. You may waive all or a portion of your fees provided for hereunder.
In the event that others than you agree to assume expenses of the Fund by way of
reimbursement or otherwise, you may as a matter of administrative convenience,
but shall not be obligated to, advance to the Fund an amount representing all or
a portion of the expenses so assumed. If you do advance such an amount to the
Fund and you are not repaid after a reasonable time by the party whose
obligation it is to assume such expense of the Fund, you shall be entitled to
have the amount of such advance returned to you upon request.
6. Avoidance of Inconsistent Position. In connection with purchases or
sales of portfolio securities for the account of the Portfolio, neither you nor
any of your managing directors, principals, directors, officers or employees
will act as a principal or agent or receive any commission. You or your agent
shall arrange for the placing of all orders for the purchase and sale of
portfolio securities for the Portfolio's account with brokers or dealers
selected by you. In the selection of such brokers or dealers and the placing of
such orders, you are directed at all times to seek for the Portfolio the most
favorable execution and net price available. If any occasion should arise in
which you give any advice to clients of yours concerning the shares of the
Portfolio, you will act solely as investment counsel for such clients and not in
any way on behalf of the Portfolio. Your services to the Portfolio pursuant to
this Agreement are not to be deemed to be exclusive and it is understood that
you may render investment advice, management and other services to others.
7. Limitation of Liability of Adviser. You shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Portfolio in
connection with the matters to which this Agreement relates except a loss
resulting from willful
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misfeasance, bad faith or gross negligence on your part in the performance of
your duties or from reckless disregard by you of your obligations and duties
under this Agreement. Any person, even though also employed by you, who may be
or become an employee of and paid by the Fund shall be deemed, when acting
within the scope of his employment by the Fund, to be acting in such employment
solely for the Fund and not as your employee or agent.
8. Duration and Termination of this Agreement. This Agreement shall
remain in force with respect to the Portfolio until September 30, 1998, and from
year to year thereafter, but only so long as such continuance is specifically
approved at least annually by the vote of a majority of the Trustees who are not
interested persons of you or of the Fund, cast in person at a meeting called for
the purpose of voting on such approval and by a vote of the Trustees or of a
majority of the outstanding voting securities of such Portfolios. This Agreement
may, on 60 days' written notice, be terminated at any time without the payment
of any penalty, by the Trustees, by vote of a majority of the outstanding voting
securities of the Portfolio, or by you. This Agreement shall automatically
terminate in the event of its assignment. In interpreting the provisions of this
Agreement, the definitions contained in Section 2(a) of the Investment Company
Act of 1940, as modified by Rule 18f-2 under the Act, (particularly the
definitions of "interested person," "assignment" and "majority of the
outstanding voting securities"), as from time to time amended, shall be applied,
subject, however, to such exemptions as may be granted by the Securities and
Exchange Commission by any rule, regulation or order.
9. Amendment of this Agreement. No provisions of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be
effective with respect to the Portfolio until approved by vote of the holders of
a majority of the outstanding voting securities of such Portfolio and by the
Trustees, including a majority of the Trustees who are not interested persons of
you or of the Fund, cast in person at a meeting called for the purpose of voting
on such approval.
10. Miscellaneous. It is understood and expressly stipulated that
neither the holders of shares of the Fund nor the Trustees shall be personally
liable hereunder. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. This Agreement
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may be executed simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
The name "Xxxxxxx Variable Life Investment Fund" is the designation of
the Trustees for the time being under a Declaration of Trust dated March 15,
1985 and all persons dealing with the Fund must look solely to the property of
the appropriate Portfolio or Portfolios for the enforcement of any claims
against the Fund as neither the Trustees, officers, agents or shareholders
assume any personal liability for obligations entered into on behalf of the
Fund. No Portfolio of the Fund shall be liable for any claims against any other
Portfolio of the Fund.
If you are in agreement with the foregoing, please sign the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Fund, whereupon this letter shall become a binding contract.
Yours very truly,
XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By /s/Xxxxx X. Xxxxx
--------------------
President
The foregoing Agreement is hereby accepted as of the date thereof.
XXXXXXX, XXXXXXX & XXXXX, INC.
By /s/Xxxxxx Xxxxxx
-------------------
Managing Director
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