EXHIBIT 99.(d)
FORM OF NEW INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT
This INVESTMENT ADVISORY AGREEMENT (the "Agreement") is made by and
between Xxxxxx Xxxx Global Equity Fund Inc., (the "Company") a corporation
organized under the laws of the State of Maryland, and XXXXXX XXXX INVESTMENT
MANAGEMENT INC., a corporation organized under the laws of the State of Delaware
(the Adviser), as of [ ], 2003.
WHEREAS, the Company desires to appoint the Adviser as the investment
adviser, and the Adviser desires to accept such appointment;
NOW THEREFORE, the parties hereto hereby agree as follows:
1. INVESTMENT DESCRIPTION; APPOINTMENT
The Company desires to employ its capital by investing and
reinvesting in investments of the kind and in accordance with the limitations
specified in its Articles of Incorporation, as the same may from time to time be
amended, and in its Registration Statement as from time to time in effect, and
in such manner and to such extent as may from time to time be approved by the
Board of Directors of the Company. Copies of the Company's Registration
Statement and Articles of Incorporation have been or will be submitted to the
Adviser. The Company agrees to provide copies of all amendments to the Company's
Registration Statement and Articles of Incorporation to the Adviser on an
on-going basis. The Company desires to employ and hereby appoints the Adviser to
act as investment adviser to the Company. The Adviser accepts the appointment
and agrees to furnish the services described herein for the compensation set
forth below.
2. SERVICES AS INVESTMENT ADVISER
Subject to the supervision and direction of the Board of Directors
of the Company, the Adviser will (a) act in accordance with the Company's
Articles of Incorporation, the Investment Company Act of 1940 and the Investment
Advisers Act of 1940, as the same may from time to time be amended, (b) manage
the Company's assets in accordance with its investment objective and policies as
stated in the Company's Registration Statement as from time to time in effect,
(c) make investment decisions and exercise voting rights in respect of portfolio
securities for the Company and (d) place purchase and sale orders on behalf of
the Company. In providing these services, the Adviser will provide investment
research and supervision of the Company's investments and conduct a continual
program of investment, evaluation and, if appropriate, sales and reinvestment of
the Company's assets. In addition, the Adviser will furnish the Company with
whatever statistical information the Company may reasonably request with respect
to the securities that the Company may hold or contemplate purchasing.
Subject to the supervision and direction of the Board of Directors
of the Company, the Adviser undertakes to perform the following administrative
services to
the extent that no other party is obligated to perform them on behalf of the
Fund: (a) providing the Fund with office space (which may be the Adviser's own
offices), stationery and office supplies, (b) furnishing certain corporate
secretarial services, including assisting in the preparation of materials for
meetings of the Board of Directors, (c) coordinating and preparation of proxy
statements and annual and semi-annual reports monitoring and developing
compliance procedures for the Fund which will include, among other matters,
procedures for monitoring compliance with the Fund's investment objective,
policies, restrictions, tax matters and applicable laws and regulations, and (f)
acting as liaison between the Fund and the Fund's independent public
accountants, counsel, custodian or custodians, administrator and transfer and
dividend-paying agent and registrar, and taking all reasonable action in the
performance of its obligations under this Agreement to assure that all necessary
information is made available to each of them.
3. BROKERAGE
In executing transactions for the Company and selecting brokers or
dealers, the Adviser will use its best efforts to seek the best overall terms
available. In assessing the best overall terms available for any Company
transaction, the Adviser will consider all factors it deems relevant including,
but not limited to, breadth of the market in the security, the price of the
security, the financial condition and execution capability of the broker or
dealer and the reasonableness of any commission for the specific transaction and
on a continuing basis. In selecting brokers or dealers to execute a particular
transaction and in evaluating the best overall terms available, the Adviser may
consider the brokerage and research services (as those terms are defined in
Section 28(e) of the Securities Exchange Act of 1934) provided to the Company
and/or other accounts over which the Adviser or an affiliate exercises
investment discretion. The Company acknowledges that, in appropriate
circumstances, the Adviser intends to use the services of affiliates as brokers;
in doing so, the Adviser agrees to comply with Section 17(e) of the Investment
Company Act of 1940, as amended, and Rule 17e-1 thereunder.
4. INFORMATION PROVIDED TO THE COMPANY
The Adviser will use its best efforts to keep the Company informed
of developments materially affecting the Company, and will, on its own
initiative, furnish the Company from time to time with whatever information the
Adviser believes is appropriate for this purpose.
5. STANDARD OF CARE
The Adviser shall exercise its best judgment in rendering the
services described in paragraphs 2, 3 and 4 above. The Adviser shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Company in connection with the matters to which this Agreement relates,
provided that nothing herein shall be deemed to protect or purport to protect
the Adviser against any liability to the Company or its shareholders to which
the Adviser would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this Agreement
("disabling conduct"). The Company will indemnify the Adviser against, and hold
it harmless from, any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit not resulting from disabling conduct by the Adviser.
Indemnification shall be made only following: (i) a final decision on the merits
by a court or other body before whom the proceeding was brought that the person
to be indemnified was not liable by reason of disabling conduct or (ii) in the
absence of such a decision, a reasonable determination, based upon a review of
the facts, that the person to be indemnified was not liable by reason of
disabling conduct by (a) the vote of a majority of a quorum of non-party
directors who are not "interested persons" of the Fund or (b) an independent
legal counsel in a written opinion.
6. COMPENSATION
(a) In consideration of the services rendered pursuant to this
Agreement, the Company will pay the Adviser after the end of each calendar
quarter while this Agreement is in effect a fee for the previous quarter
computed daily at an annual rate of 0.90% of the Company's average daily net
assets.
(b) Upon any termination of this Agreement before the end of a
quarter, the fee for such part of that quarter shall be prorated according to
the proportion that such period bears to the full quarterly period and shall be
payable upon the date of termination of this Agreement. For the purpose of
determining fees payable to the Adviser, the value of the Company's net assets
shall be computed at the times and in the manner specified in the Company's
Registration Statement as from time to time in effect.
7. EXPENSES
The Adviser will bear all expenses in connection with the
performance of its services under this Agreement, including compensation of and
office space for its officers and employees connected with investment and
economic research, trading and investment management and administration of the
Company, as well as the fees of all directors of the Company who are affiliated
with the Adviser or any of its affiliates. The Company will bear certain other
expenses to be incurred in its operation, including: organizational expenses;
taxes, interest, brokerage costs and commissions; fees of directors of the
Company who are not officers, directors, or employees of the Adviser, the
distributor or administrator or any of their affiliates; Securities and Exchange
Commission fees; state Blue Sky fees; charges of the custodian, any
subcustodians, and transfer and dividend-paying agents; insurance premiums;
outside auditing, pricing and legal expenses; costs of maintenance of the
Company's existence; costs attributable to investor services, including, without
limitation, telephone and personnel expenses; costs of printing stock
certificates; costs of preparing and printing prospectuses and statements of
additional information fro regulatory purposes and for distribution to existing
shareholders; costs of shareholders' reports and meetings of the shareholders of
the Company and of the officers or Board of Directors of the Company; membership
fees in trade associations; litigation and other extraordinary or non-recurring
expenses.
8. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The Company understands that the Adviser now acts, will continue
to act or may in the future act, as investment adviser to fiduciary and other
managed accounts or as investment adviser to one or more other investment
companies, and the Company has no objection to the Adviser so acting, provided
that whenever the Company and one or more other accounts or investment companies
advised by the Adviser have available funds for investment, investments suitable
and appropriate for each will be allocated in accordance with procedures
believed to be equitable to each entity. Similarly, opportunities to sell
securities will be allocated in an equitable manner. The Company recognizes that
in some cases this procedure may adversely affect the size of the position that
may be acquired or disposed of for the Company. In addition, the Company
understands that the persons employed by the Adviser to assist in the
performance of the Adviser's duties hereunder will not devote their full time to
such service and nothing contained herein shall be deemed to limit or restrict
the right of the Adviser or any affiliate of the Adviser to engage in and devote
time and attention to other businesses or to render services of whatever kind or
nature.
9. TERM OF AGREEMENT
This Agreement shall become effective as of the later of the date
the Company's Registration Statement on Form N-1A is declared effective by the
Securities and Exchange Commission or the date shareholders approve this
Agreement and shall continue for an initial two-year term and shall continue
thereafter so long as such continuance is specifically approved at least
annually by (i) the Board of Directors of the Company or (ii) a vote of a
"majority" (as defined in the Investment Company Act of 1940) of the Company's
outstanding voting securities, provided that in either event the continuance is
also approved by a majority of the Board of Directors who are not "interested
persons" (as defined in said Act) of any party to this Agreement, by vote cast
in person at a meeting called for the purpose of voting on such approval. This
Agreement is terminable, without penalty, on 60 days' written notice, by the
Board of Directors of the Company or by vote of holders of a majority of the
Company's shares, or upon 60 days' written notice, by the Adviser. This
Agreement will also terminate automatically in the event of its assignment (as
defined in said Act).
10. USE OF NAME
If the Adviser ceases to act as investment adviser to the Company,
the Company agrees that, at the request of the Adviser, the Company's license to
use "Xxxxxx Xxxx" or any variation thereof indicating a connection to either of
those entities, will terminate and the Company will take all necessary action to
change the name of the Company to a name that does not include "Xxxxxx Xxxx" or
any such variation.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
parties hereto.
12. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the state of New York without giving effect to the
conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers as of [ ], 2004.
XXXXXX XXXX GLOBAL EQUITY FUND INC.
By: _________________________
Title:
XXXXXX XXXX INVESTMENT MANAGEMENT INC.
By: _____________________________
Title:
