Exhibit (d)(11)
Xxxxxxx International Fund, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxx 00, 0000
Xxxxxxxx Investment Management Americas Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Investment Management Agreement
Xxxxxxx Greater Europe Growth Fund
Ladies and Gentlemen:
Xxxxxxx International Fund, Inc. (the "Corporation"), has been
established as a Maryland corporation to engage in the business of an investment
company. Pursuant to the Corporation's Articles of Incorporation, as amended
from time-to-time (the "Articles"), the Board of Directors may divide the
Corporation's shares of capital stock, par value $0.01 per share, (the "Shares")
into separate series, or funds, including Xxxxxxx Greater Europe Growth Fund
(the "Fund"). Series may be abolished and dissolved, and additional series
established, from time to time by action of the Directors.
The Corporation, on behalf of the Fund, has selected you to act as the
sole investment manager of the Fund and to provide certain other services, as
more fully set forth below, and you have indicated that you are willing to act
as such investment manager and to perform such services under the terms and
conditions hereinafter set forth. Accordingly, the Corporation on behalf of the
Fund agrees with you as follows:
1. Delivery of Documents. The Corporation engages in the business of
investing and reinvesting the assets of the Fund in the manner and in accordance
with the investment objectives, policies and restrictions specified in the
currently effective Prospectus (the "Prospectus") and Statement of Additional
Information (the "SAI") relating to the Fund included in the Corporation's
Registration Statement on Form N-1A, as amended from time to time (the
"Registration Statement"), filed by the Corporation under the Investment Company
Act of 1940, as amended, (the "1940 Act") and the Securities Act of 1933, as
amended. Copies of the documents referred to in the preceding sentence have been
furnished to you by the Corporation. The Corporation has also furnished you with
copies properly certified or authenticated of each of the following additional
documents related to the Corporation and the Fund:
(a) The Articles dated July 15, 1975, as amended to date.
(b) By-Laws of the Corporation as in effect on the date hereof (the "By-Laws").
(c) Resolutions of the Directors of the Corporation and the shareholders of the
Fund selecting you as investment manager and approving the form of this
Agreement.
The Corporation will furnish you from time to time with copies,
properly certified or authenticated, of all amendments of or supplements, if
any, to the foregoing, including the Prospectus, the SAI and the Registration
Statement.
2. Sublicense to Use the Xxxxxxx Trademarks. As exclusive licensee of
the rights to use and sublicense the use of the "Xxxxxxx," "Xxxxxxx Investments,
Inc." and "Xxxxxxx, Xxxxxxx & Xxxxx, Inc."
trademarks (together, the "Xxxxxxx Marks"), you hereby grant the Corporation a
nonexclusive right and sublicense to use (i) the "Xxxxxxx" name and xxxx as part
of the Corporation's name (the "Fund Name"), and (ii) the Xxxxxxx Marks in
connection with the Corporation's investment products and services, in each case
only for so long as this Agreement, any other investment management agreement
between you or any organization which shall have succeeded to your business as
investment manager ("your Successor") and the Corporation, or any extension,
renewal or amendment hereof or thereof remains in effect, and only for so long
as you are a licensee of the Xxxxxxx Marks, provided however, that you agree to
use your best efforts to maintain your license to use and sublicense the Xxxxxxx
Marks. The Corporation agrees that it shall have no right to sublicense or
assign rights to use the Xxxxxxx Marks, shall acquire no interest in the Xxxxxxx
Marks other than the rights granted herein, that all of the Corporation's uses
of the Xxxxxxx Marks shall inure to the benefit of Xxxxxxx Trust Company as
owner and licensor of the Xxxxxxx Marks (the "Trademark Owner"), and that the
Corporation shall not challenge the validity of the Xxxxxxx Marks or the
Trademark Owner's ownership thereof. The Corporation further agrees that all
services and products it offers in connection with the Xxxxxxx Marks shall meet
commercially reasonable standards of duality, as may be determined by you or the
Trademark Owner from time to time, provided that you acknowledge that the
services and products the Corporation rendered during the one-year period
preceding the date of this Agreement are acceptable. At your reasonable request,
the Corporation shall cooperate with you and the Trademark Owner and shall
execute and deliver any and all documents necessary to maintain and protect
(including but not limited to in connection with any trademark infringement
action) the Xxxxxxx Marks and/or enter the Corporation as a registered user
thereof. At such time as this Agreement or any other investment management
agreement shall no longer be in effect between you (or your Successor) and the
Corporation, or you no longer are a licensee of the Xxxxxxx Marks, the
Corporation shall (to the extent that, and as soon as, it lawfully can) cease to
use the Fund Name or any other name indicating that it is advised by, managed by
or otherwise connected with you (or your Successor) or the Trademark Owner. In
no event shall the Corporation use the Xxxxxxx Marks or any other name or xxxx
confusingly similar thereto (including, but not limited to, any name or xxxx
that includes the name "Xxxxxxx") if this Agreement or any other investment
advisory agreement between you (or your Successor) and the Fund is terminated.
3. Portfolio Management Services. As manager of the assets of the Fund,
you shall provide continuing investment management of the assets of the Fund in
accordance with the investment objectives, policies and restrictions set forth
in the Prospectus and SAI; the applicable provisions of the 1940 Act and the
Internal Revenue Code of 1986, as amended, (the "Code") relating to regulated
investment companies and all rules and regulations thereunder; and all other
applicable federal and state laws and regulations of which you have knowledge;
subject always to policies and instructions adopted by the Corporation's Board
of Directors. In connection therewith, you shall use reasonable efforts to
manage the Fund so that it will qualify as a regulated investment company under
Subchapter M of the Code and regulations issued thereunder. The Fund shall have
the benefit of the investment analysis and research, the review of current
economic conditions and trends and the consideration of long-range investment
policy generally available to your investment advisory clients. In managing the
Fund in accordance with the requirements set forth in this section 3, you shall
be entitled to receive and act upon advice of counsel to the Corporation or
counsel to you. You shall also make available to the Corporation promptly upon
request all of the Fund's investment records and ledgers as are necessary to
assist the Corporation in complying with the requirements of the 1940 Act and
other applicable laws. To the extent required by law, you shall furnish to
regulatory authorities having the requisite authority any information or reports
in connection with the services provided pursuant to this Agreement which may be
requested in order to ascertain whether the operations of the Corporation are
being conducted in a manner consistent with applicable laws and regulations.
You shall determine the securities, instruments, investments,
currencies, repurchase agreements, futures, options and other contracts relating
to investments to be purchased, sold or entered into by the Fund and place
orders with broker-dealers, foreign currency dealers, futures commission
merchants or
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others pursuant to your determinations and all in accordance with Fund policies
as expressed in the Registration Statement. You shall determine what portion of
the Fund's portfolio shall be invested in securities and other assets and what
portion, if any, should be held uninvested.
You shall furnish to the Corporation's Board of Directors periodic
reports on the investment performance of the Fund and on the performance of your
obligations pursuant to this Agreement, and you shall supply such additional
reports and information as the Corporation's officers or Board of Directors
shall reasonably request.
4. Delegation of Portfolio Management Services. Subject to the prior
approval of a majority of the members of the Fund's Board of Directors,
including a majority of the Directors who are not "interested persons," as
defined in the 1940 Act, you may, through a sub-advisory agreement or other
arrangement, delegate to any other company that you control, are controlled by,
or are under common control with, or to specified employees of any such
companies, or to more than one such company, to the extent permitted by
applicable law, certain of your duties enumerated in section 3 hereof; provided,
that you shall continue to supervise the services provided by such company or
employees and any such delegation shall not relieve you of any of your
obligations hereunder.
Subject to the provisions of this Agreement, the duties of any
sub-adviser or delegate, the portion of portfolio assets of the Fund that the
sub-adviser or delegate shall manage and the fees to be paid to the sub-adviser
or delegate by you under and pursuant to any sub-advisory agreement or other
arrangement entered into in accordance with this Agreement may be adjusted from
time to time by you, subject to the prior approval of a majority of the members
of the Fund's Board of Directors, including a majority of the Directors who are
not "interested persons," as defined in the 1940 Act.
5. Administrative Services. In addition to the portfolio management
services specified in section 3 hereof, you shall furnish at your expense for
the use of the Fund such office space and facilities in the United States as the
Fund may require for its reasonable needs, and you (or one or more of your
affiliates designated by you) shall render to the Corporation administrative
services on behalf of the Fund necessary for operating as an open-end investment
company and not provided by persons not parties to this Agreement including, but
not limited to, preparing reports to and meeting materials for the Corporation's
Board of Directors and reports and notices to Fund shareholders; supervising,
negotiating contractual arrangements with, to the extent appropriate, and
monitoring the performance of, accounting agents, custodians, depositories,
transfer agents and pricing agents, accountants, attorneys, printers,
underwriters, brokers and dealers, insurers and other persons in any capacity
deemed to be necessary or desirable to Fund operations; preparing and making
filings with the Securities and Exchange Commission (the "SEC") and other
regulatory and self-regulatory organizations, including, but not limited to,
preliminary and definitive proxy materials, post-effective amendments to the
Registration Statement, semi-annual reports on Form N-SAR and notices pursuant
to Rule 24f-2 under the 1940 Act; overseeing the tabulation of proxies by the
Fund's transfer agent; assisting in the preparation and filing of the Fund's
federal, state and local tax returns; preparing and filing the Fund's federal
excise tax return pursuant to Section 4982 of the Code; providing assistance
with investor and public relations matters; monitoring the valuation of
portfolio securities and the calculation of net asset value; monitoring the
registration of Shares of the Fund under applicable federal and state securities
laws; maintaining or causing to be maintained for the Fund all books, records
and reports and any other information required under the 1940 Act, to the extent
that such books, records and reports and other information are not maintained by
the Fund's custodian or other agents of the Fund; assisting in establishing the
accounting policies of the Fund; assisting in the resolution of accounting
issues that may arise with respect to the Fund's operations and consulting with
the Fund's independent accountants, legal counsel and the Fund's other agents as
necessary in connection therewith; establishing and monitoring the Fund's
operating expense budgets; reviewing the Fund's bills; processing the payment of
bills that have been approved by an authorized person; assisting the Fund in
determining the amount of dividends and distributions available to be paid
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by the Fund to its shareholders, preparing and arranging for the printing of
dividend notices to shareholders, and providing the transfer and dividend paying
agent, the custodian, and the accounting agent with such information as is
required for such parties to effect the payment of dividends and distributions;
and otherwise assisting the Corporation as it may reasonably request in the
conduct of the Fund's business, subject to the direction and control of the
Corporation's Board of Directors. Nothing in this Agreement shall be deemed to
shift to you or to diminish the obligations of any agent of the Fund or any
other person not a party to this Agreement which is obligated to provide
services to the Fund.
6. Allocation of Charges and Expenses. Except as otherwise specifically
provided in this section 6, you shall pay the compensation and expenses of all
Directors, officers and executive employees of the Corporation (including the
Fund's share of payroll taxes) who are affiliated persons of you, and you shall
make available, without expense to the Fund, the services of such of your
directors, officers and employees as may duly be elected officers of the
Corporation, subject to their individual consent to serve and to any limitations
imposed by law. You shall provide at your expense the portfolio management
services described in section 3 hereof and the administrative services described
in section 5 hereof.
You shall not be required to pay any expenses of the Fund other than
those specifically allocated to you in this section 6. In particular, but
without limiting the generality of the foregoing, you shall not be responsible,
except to the extent of the reasonable compensation of such of the Fund's
Directors and officers as are directors, officers or employees of you whose
services may be involved, for the following expenses of the Fund: organization
expenses of the Fund (including out-of-pocket expenses, but not including your
overhead or employee costs); fees payable to you and to any other Fund advisors
or consultants; legal expenses; auditing and accounting expenses; maintenance of
books and records which are required to be maintained by the Fund's custodian or
other agents of the Corporation; telephone, telex, facsimile, postage and other
communications expenses; taxes and governmental fees; fees, dues and expenses
incurred by the Fund in connection with membership in investment company trade
organizations; fees and expenses of the Fund's accounting agent, custodians,
subcustodians, transfer agents, dividend disbursing agents and registrars;
payment for portfolio pricing or valuation services to pricing agents,
accountants, bankers and other specialists, if any; expenses of preparing share
certificates and, except as provided below in this section 6, other expenses in
connection with the issuance, offering, distribution, sale, redemption or
repurchase of securities issued by the Fund; expenses relating to investor and
public relations; expenses and fees of registering or qualifying Shares of the
Fund for sale; interest charges, bond premiums and other insurance expense;
freight, insurance and other charges in connection with the shipment of the
Fund's portfolio securities; the compensation and all expenses (specifically
including travel expenses relating to Corporation business) of Directors,
officers and employees of the Corporation who are not affiliated persons of you;
brokerage commissions or other costs of acquiring or disposing of any portfolio
securities of the Fund; expenses of printing and distributing reports, notices
and dividends to shareholders; expenses of printing and mailing Prospectuses and
SAIs of the Fund and supplements thereto; costs of stationery; any litigation
expenses; indemnification of Directors and officers of the Corporation; costs of
shareholders' and other meetings; and travel expenses (or an appropriate portion
thereof) of Directors and officers of the Corporation who are Directors,
officers or employees of you to the extent that such expenses relate to
attendance at meetings of the Board of Directors of the Corporation or any
committees thereof or advisors thereto held outside of Boston, Massachusetts or
New York, New York.
You shall not be required to pay expenses of any activity which is
primarily intended to result in sales of Shares of the Fund if and to the extent
that (i) such expenses 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 Corporation on behalf of the Fund shall have adopted a
plan in conformity with Rule 12b-1 under the 1940 Act providing that the Fund
(or some other party) shall assume some or all of such expenses. You
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shall be required to pay such of the foregoing sales 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 (or some other party)
pursuant to such a plan.
7. Management Fee. For all services to be rendered, payments to be made
and costs to be assumed by you as provided in sections 2, 3, 4 and 5 hereof, the
Fund shall pay you in United States Dollars on the last day of each month the
unpaid balance of a fee equal to the excess of 1/12 of 0.75 of 1 percent of the
average daily net assets as defined below of the Fund for such month; provided
that, for any calendar month during which the average of such values exceeds
$250 million, the fee payable for that month based on the portion of the average
of such values in excess of $250 million shall be 1/12 of 0.72 of 1 percent of
such portion; provided that, for any calendar month during which the average of
such values exceeds $1 billion, the fee payable for that month based on the
portion of the average of such values in excess of $1 billion shall be 1/12 of
0.70 of 1 percent of such portion; provided that, for any calendar month during
which the average of such values exceeds $2.5 billion, the fee payable for that
month based on the portion of the average of such values in excess of $2.5
billion shall be 1/12 of 0.68 of 1 percent of such portion; provided that, for
any calendar month during which the average of such values exceeds $5 billion,
the fee payable for that month based on the portion of the average of such
values in excess of $5 billion shall be 1/12 of 0.65 of 1 percent of such
portion; provided that, for any calendar month during which the average of such
values exceeds $7.5 billion, the fee payable for that month based on the portion
of the average of such values in excess of $7.5 billion shall be 1/12 of 0.64 of
1 percent of such portion; provided that, for any calendar month during which
the average of such values exceeds $10 billion, the fee payable for that month
based on the portion of the average of such values in excess of $10 billion
shall be 1/12 of 0.63 of 1 percent of such portion; and provided that, for any
calendar month during which the average of such values exceeds $12.5 billion,
the fee payable for that month based on the portion of the average of such
values in excess of $12.5 billion shall be 1/12 of 0.62 of 1 percent of such
portion; over any compensation waived by you from time to time (as more fully
described below). You shall be entitled to receive during any month such interim
payments of your fee hereunder as you shall request, provided that no such
payment shall exceed 75 percent of the amount of your fee then accrued on the
books of the Fund and unpaid.
The "average daily net assets" of the Fund shall mean the average of
the values placed on the Fund's net assets as of 4:00 p.m. (New York time) on
each day on which the net asset value of the Fund is determined consistent with
the provisions of Rule 22c-1 under the 1940 Act or, if the Fund lawfully
determines the value of its net assets as of some other time on each business
day, as of such time. The value of the net assets of the Fund shall always be
determined pursuant to the applicable provisions of the Articles and the
Registration Statement. If the determination of net asset value does not take
place for any particular day, then for the purposes of this section 7, the value
of the net assets of the Fund as last determined shall be deemed to be the value
of its net assets as of 4:00 p.m. (New York time), or as of such other time as
the value of the net assets of the Fund's portfolio may be lawfully determined
on that day. If the Fund determines the value of the net assets of its portfolio
more than once on any day, then 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 section 7.
You may waive all or a portion of your fees provided for hereunder and
such waiver shall be treated as a reduction in purchase price of your services.
You shall be contractually bound hereunder by the terms of any publicly
announced waiver of your fee, or any limitation of the Fund's expenses, as if
such waiver or limitation were fully set forth herein.
8. Avoidance of Inconsistent Position; Services Not Exclusive. In
connection with purchases or sales of portfolio securities and other investments
for the account of the Fund, neither you nor any of your directors, officers or
employees shall 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 and other investments for the Fund's account with
brokers or dealers selected by you in accordance with Fund policies as expressed
in the Registration Statement. If any occasion should arise
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in which you give any advice to clients of yours concerning the Shares of the
Fund, you shall act solely as investment counsel for such clients and not in any
way on behalf of the Fund.
Your services to the Fund pursuant to this Agreement are not to be
deemed to be exclusive and it is understood that you may render investment
advice, management and services to others. In acting under this Agreement, you
shall be an independent contractor and not an agent of the Corporation. Whenever
the Fund and one or more other accounts or investment companies advised by you
have available funds for investment, investments suitable and appropriate for
each shall be allocated in accordance with procedures believed by you to be
equitable to each entity. Similarly, opportunities to sell securities shall be
allocated in a manner believed by you to be equitable. The Fund recognizes that
in some cases this procedure may adversely affect the size of the position that
may be acquired or disposed of for the Fund.
9. Limitation of Liability of Manager. As an inducement to your
undertaking to render services pursuant to this Agreement, the Corporation
agrees that you shall not be liable under this Agreement for any error of
judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, provided that nothing in this
Agreement shall be deemed to protect or purport to protect you against any
liability to the Corporation, the Fund or its shareholders to which you would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your duties, or by reason of your reckless
disregard of your obligations and duties hereunder. 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 or her employment by the Fund, to
be acting in such employment solely for the Fund and not as your employee or
agent.
10. Duration and Termination of This Agreement. This Agreement shall
remain in force until September 30, 2005 and continue in force from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually (a) by the vote of a majority of the Directors who are not
parties to this Agreement or interested persons of any party to this Agreement,
cast in person at a meeting called for the purpose of voting on such approval,
and (b) by the Directors of the Corporation, or by the vote of a majority of the
outstanding voting securities of the Fund. The aforesaid requirement that
continuance of this Agreement be "specifically approved at least annually" shall
be construed in a manner consistent with the 1940 Act and the rules and
regulations thereunder and any applicable SEC exemptive order therefrom.
This Agreement may be terminated with respect to the Fund at any time,
without the payment of any penalty, by the vote of a majority of the outstanding
voting securities of the Fund or by the Corporation's Board of Directors on 60
days' written notice to you, or by you on 60 days' written notice to the
Corporation. This Agreement shall terminate automatically in the event of its
assignment.
11. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall be
effective until approved in a manner consistent with the 1940 Act and rules and
regulations thereunder and any applicable SEC exemptive order therefrom.
12. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement 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.
In interpreting the provisions of this Agreement, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"affiliated person," "assignment" and "majority of the
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outstanding voting securities"), as from time to time amended, shall be applied,
subject, however, to such exemptions as may be granted by the SEC by any rule,
regulation or order.
This Agreement shall be construed in accordance with the laws of the
State of Maryland, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, or in a manner which would cause the Fund to
fail to comply with the requirements of Subchapter M of the Code.
This Agreement shall supersede all prior investment advisory or
management agreements entered into between you and the Corporation on behalf of
the Fund.
If you are in agreement with the foregoing, please execute the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Corporation, whereupon this letter shall become a binding
contract effective as of the date of this Agreement.
Yours very truly,
Xxxxxxx International Fund, Inc., on
behalf of Xxxxxxx Greater Europe Growth Fund
By: /s/Julian Sluyters
----------------------------
Julian Sluyters
President
The foregoing Agreement is hereby accepted as of the date hereof.
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
By: /s/A. Xxxxxx Xxxxx
----------------------------
A. Xxxxxx Xxxxx
Secretary
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