▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND, INC.
FORM OF
INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT, dated as of July 2, 1997 (the
"Agreement"), by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND, INC., a Maryland corporation
(the "Company"), on behalf of each of its investment portfolios identified at
Schedule A (the "Funds") and ▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL INVESTMENT ADVISORY
CORP. (the "Adviser"), a Delaware corporation.
1. (a) RETENTION OF ADVISER BY THE COMPANY. Subject to the terms and
conditions set forth herein, the Company hereby employs the Adviser to act as
the investment adviser for and to manage the investment and reinvestment of the
assets of the Funds in accordance with each Fund's investment objective,
policies and limitations, and to administer its affairs to the extent requested
by, and subject to the review and supervision of, the Board of Directors of the
Company for the period and upon the terms herein set forth. The investment of
funds shall be subject to all applicable restrictions of applicable law and of
the Articles of Incorporation and By-Laws of the Company, and resolutions of the
Board of Directors of the Company as may from time to time be in force and
delivered or made available to the Adviser. The Adviser may appoint a
sub-adviser for one or more Funds to perform any or all services provided for in
this Agreement, provided that such sub-adviser is appointed pursuant to a
written agreement between the Adviser and the sub-adviser and such agreement is
approved by a majority of the Company's Directors who are not "interested
persons" of the Company, the Adviser, or the sub-adviser as defined in the
Investment Company Act of 1940 (the "1940 Act"), as amended, and by a majority
of the outstanding voting securities of each appropriate Fund in accordance with
the 1940 Act. The Adviser shall be solely responsible for paying any such
sub-adviser for its services.
(b) ADVISER'S ACCEPTANCE OF EMPLOYMENT. The Adviser accepts such
employment and agrees during such period to render such services, to supply
investment research and portfolio management (including without limitation the
selection of securities for the Funds to purchase, hold or sell and the
selection of brokers through whom the Funds' portfolio transactions are
executed, in accordance with the policies adopted by the Company's Board of
Directors), to administer the business affairs of the Company, to furnish
offices and necessary facilities and equipment to the Company, to provide
administrative services for the Company, to render periodic reports to the Board
of Directors of the Company, and to permit any of its officers or employees to
serve without compensation as Directors or officers of the Company if selected
to such positions.
(c) ESSENTIAL PERSONNEL. For a period of one year commencing on the
effective date of this Agreement, the Adviser and the Company agree that the
retention of (i) the chief executive officer, president, chief financial officer
and secretary of the Adviser, (ii) each director, officer and employee of the
Adviser or any of its Affiliates (as defined in the ▇▇▇▇ ▇▇▇) who serves as an
officer of the Company (each person referred to in (i) or (ii) hereinafter being
referred to as an "Essential Person"), in his or her current capacities, is in
the best interest of the Company and the Company's shareholders. In connection
with the Adviser's acceptance of employment hereunder,
the Adviser hereby agrees and covenants for itself and on behalf of its
Affiliates that neither the Adviser nor any of its Affiliates shall make any
material or significant personnel changes or replace or seek to replace any
Essential Person or cause to be replaced any Essential Person, in each case
without first informing the Board of Directors of the Company in a timely
manner. In addition, neither the Adviser nor any Affiliate of the Adviser shall
change or seek to change or cause to be changed, in any material respect, the
duties and responsibilities of any Essential Person, in each case without first
informing the Board of Directors of the Company in a timely manner.
(d) INDEPENDENT CONTRACTOR. The Adviser shall be deemed to be an
independent contractor under this Agreement and, unless otherwise expressly
provided or authorized, shall have no authority to act for or represent the
Company in any way or otherwise be deemed as agent of the Company.
(e) NON-EXCLUSIVE AGREEMENT. The services of the Adviser to the
Company and the Funds under this Agreement are not to be deemed exclusive, and
the Adviser shall be free to render similar services or other services to others
so long as its services hereunder are not impaired thereby.
2. (a) FEE. For the services and facilities described in Section 1, the
Company will accrue daily and pay to the Adviser at the end of each calendar
month an investment management fee computed based on a fee rate (expressed as a
percentage per annum), applied to the average daily net assets of each Fund as
set forth at Schedule A.
(b) DETERMINATION OF NET ASSET VALUE. The net asset value of the
Funds shall be calculated as of 12:00 noon (Eastern time) for each Fund that is
a money market fund and as of 4:00 p.m. (Eastern time) for the non-money market
funds on each day the New York Stock Exchange (and with respect to the money
market funds, the Federal Reserve Banks) is open for trading or such other time
or times as the Directors may determine in accordance with the provisions of
applicable law and the Articles of Incorporation and By-Laws of the Company, and
resolutions of the Board of Directors of the Company as from time to time in
force. For the purposes of the foregoing computations, on each such day when
net asset value is not calculated, the net asset value of a share a Fund shall
be deemed to be the net asset value of such share as of the close of business of
the last day on which such calculation was made.
(c) PRORATION. For the month and year in which this Agreement
becomes effective or terminates, there shall be an appropriate proration of the
Adviser's fee on the basis of the number of days that the Agreement is in effect
during such month and year, respectively.
3. EXPENSES. In addition to the fee of the Adviser, the Company shall
assume and pay any expenses for services rendered by a custodian for the
safekeeping of the Company's securities or other property, for keeping its books
of account, for any other charges of the custodian and for calculating the net
asset value of the Funds as provided above. The Adviser
2
shall not be required to pay, and the Company shall assume and pay, the charges
and expenses of its operations, including compensation of the Directors (other
than those who are interested persons of the Adviser and other than those who
are interested persons of the Company's distributor but not of the Adviser, if
the distributor has agreed to pay such compensation), charges and expenses of
independent accountants, of legal counsel and of any transfer or dividend
disbursing agent, costs of acquiring and disposing of portfolio securities,
interest (if any) on obligations incurred by the Company, costs of share
certificates, membership dues in the Investment Company Institute or any similar
organization, costs of reports and notices to shareholders, costs of registering
shares of the Company under the federal securities laws, miscellaneous expenses
and all taxes and fees to federal, state or other governmental agencies on
account of the registration of securities issued by the Company, filing of
corporate documents or otherwise. The Company shall not pay or incur any
obligation for any management or administrative expenses for which the Company
intends to seek reimbursement from the Adviser without first obtaining the
written approval of the Adviser. The Adviser shall arrange, if desired by the
Company, for officers or employees of the Adviser to serve, without compensation
from the Company, as directors, officers or agents of the Company if duly
elected or appointed to such positions and subject to their individual consent
and to any limitations imposed by the law.
4. INTERESTED PERSONS. Subject to applicable statutes and regulations,
it is understood that directors, officers, shareholders and agents of the
Company are or may be interested in the Adviser as directors, officers,
shareholders, agents or otherwise and that the directors, officers, shareholders
and agents of the Adviser may be interested in the Company as directors,
officers, shareholders, agents or otherwise.
5. LIABILITY. The Adviser shall not be liable for any error of judgment
or of law, or for any loss suffered by the Company in connection with the
matters to which this Agreement relates, except a loss resulting from willful
misfeasance, bad faith or gross negligence on the part of the Adviser in the
performance of its obligations and duties, or by reason of its reckless
disregard of its obligations and duties under this Agreement.
. 6. (a) TERM. This Agreement shall become effective on the date hereof
and shall remain in full force until July 2, 1999 unless sooner terminated as
hereinafter provided. This Agreement shall continue in force from year to year
thereafter, but only for so long as such continuance is specifically approved at
least annually, in the manner required by the 1940 Act.
(b) TERMINATION. This Agreement shall automatically terminate in the
event of its assignment. This Agreement may be terminated at any time without
the payment of any penalty by the Company or by the Adviser on sixty (60) days'
written notice to the other party. The Company may effect termination of this
Agreement with respect to a Fund by action of the Board of Directors or by vote
of a majority of the outstanding shares of common stock of the appropriate Fund,
accompanied by appropriate notice. This Agreement may be terminated at any time
without the payment of any penalty and without advance notice by the Board of
Directors or by vote of a majority of the outstanding shares of the Company (or
with respect to a Fund, by a
3
majority of the outstanding shares of that Fund) in the event that it shall have
been established by a court of competent jurisdiction that the Adviser or any
officer or director of the Adviser has taken any action which results in a
breach of the covenants of the Adviser set forth herein.
(c) PAYMENT UPON TERMINATION. Termination of this Agreement shall
not affect the right of the Adviser to receive payment on any unpaid balance of
the compensation described in Section 2 earned prior to such termination.
7. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder
shall not thereby be affected.
8. NOTICES. Any notice under this Agreement shall be in writing,
addressed and delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate for the receipt of such notice.
10. GOVERNING LAW. All questions concerning the validity, meaning and
effect of this Agreement shall be determined in accordance with the laws
(without giving effect to the conflict-of-law principles thereof) of the State
of Delaware applicable to contracts made and to be performed in that state.
11. NAME. In connection with its employment hereunder, the Adviser hereby
agrees and covenants not to change its name without the prior consent of the
Board of Directors.
12. MISCELLANEOUS PROVISIONS. The execution of this Agreement has been
authorized by the Company's Directors and by each Fund's shareholders. This
Agreement is executed on behalf of the Company or the Directors of the Company
as Directors and not individually and the obligations of this Agreement are not
binding upon any of the Directors, officers or shareholders of the Company
individually but are binding only upon the assets and property of the Company.
The Articles of Incorporation of the Company are on file with the Department of
Assessments and Taxation of the State of Maryland. No Fund shall be liable
under this Agreement for the obligations of any other Fund.
. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below on the day and year first above
written.
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND, INC. INVESTMENT ADVISORY CORP.
By: By:
--------------------------- ---------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------ ------------------------
4
Schedule A
Fund* Annual Percentage Rate
---- ----------------------
Emerging Markets Debt Fund 1.25%
Global Fixed Income Fund 0.75
High Yield Fund 0.75
Worldwide High Income Fund 0.75
Asian Growth Fund 1.00
Emerging Markets Fund 1.25
European Equity Fund 1.00
Global Equity Allocation Fund 1.00
Global Equity Fund 1.00
International Magnum Fund 0.80
Japanese Equity Fund 1.00
Latin American Fund 1.25
Aggressive Equity Fund 0.90
American Value Fund 0.85
Equity Growth Fund 0.70
Growth and Income Fund 1.00
Mid Cap Growth Fund 0.75
Value Fund 0.70
U.S. Real Estate Fund 1.00
Government Obligations Money 0.45 on assets up to $250
Market Fund million;
0.40 on assets above $250
million up to
$500 million; and
0.35 on assets exceeding
$500 million
Money Market Fund 0.45 on assets up to $250
million;
0.40 on assets above $250
million up to
$500 million; and
0.35 on assets exceeding
$500 million
5
Fund* Annual Percentage Rate
---- ----------------------
Tax-Free Money Market Fund 0.45 on assets up to $250
million;
0.40 on assets above $250
million up to
$500 million; and
0.35 on assets exceeding
$500 million
* For ease of reference the words "▇▇▇▇▇▇ ▇▇▇▇▇▇▇," which begin the name of each
Fund have been omitted.
6
