EXHIBIT 23(d)
INVESTMENT ADVISORY AGREEMENT
INVESTMENT ADVISORY AGREEMENT, dated as of __, 1999, between
The Gabelli Blue Chip Value Fund (the "Fund"), a Delaware business trust,
and Gabelli Funds, LLC (the "Adviser"), a New York limited liability
company.
In consideration of the mutual promises and agreements herein
contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, it is agreed by and between the parties hereto as
follows:
1. In General
The Adviser agrees, all as more fully set forth herein, to act
as investment adviser to the Fund with respect to the investment of the
assets of the Fund and to supervise and arrange the purchase and sale of
assets held in the investment portfolio of the Fund. The Adviser may
delegate any or all of its responsibilities to one or more sub-advisers or
administrators, subject to the approval of the Board of Trustees of the
Fund. Such delegation shall not relieve the Adviser of its duties and
responsibilities hereunder.
2. Duties and obligations of the Adviser with respect to
investments of assets of the Fund
(a) Subject to the succeeding provisions of this
paragraph and subject to the direction and control of the Fund's Board of
Trustees, the Adviser shall (i) act as investment adviser for and supervise
and manage the investment and reinvestment of the Fund's assets and in
connection therewith have complete discretion in purchasing and selling
securities and other assets for the Fund and in voting, exercising consents
and exercising all other rights appertaining to such securities and other
assets on behalf of the Fund; (ii) arrange for the purchase and sale of
securities and other assets held in the investment portfolio of the Fund
and (iii) oversee the administration of all aspects of the Fund's business
and affairs and provide, or arrange for others whom it believes to be
competent to provide, certain services as specified in subparagraph (b)
below. Nothing contained herein shall be construed to restrict the Fund's
right to hire its own employees or to contract for administrative services
to be performed by third parties, including but not limited to, the
calculation of the net asset value of the Fund's shares.
(b) The specific services to be provided or arranged for by the
Adviser for the Fund are (i) maintaining the Fund's books and records, such
as journals, ledger accounts and other records in accordance with
applicable laws and regulations to the extent not maintained by the Fund's
custodian, transfer agent and dividend disbursing agent; (ii) transmitting
purchase and redemption orders for the Fund's shares to the extent not
transmitted by the Fund's distributor or others who purchase and redeem
shares; (iii) initiating all money transfers to the Fund's custodian and
from the Fund's custodian for the payment of the Fund's expenses,
investments, dividends and share redemptions; (iv) reconciling account
information and balances among the Fund's custodian, transfer agent,
distributor, dividend disbursing agent and the Adviser; (v) providing the
Fund, upon request, with such office space and facilities, utilities and
office equipment as are adequate for the Fund's needs; (vi) preparing, but
not paying for, all reports by the Fund to its shareholders and all reports
and filings required to maintain the registration and qualification of the
Fund's shares under federal and state law including periodic updating of
the Fund's registration statement and the Fund's Prospectus (including its
Statement of Additional Information); (vii) supervising the calculation of
the net asset value of the Fund's shares; and (viii) preparing notices and
agendas for meetings of the Fund's shareholders and the Fund's Board of
Trustees as well as minutes of such meetings in all matters required by
applicable law to be acted upon by the Board of Trustees.
(c) In the performance of its duties under this Agreement, the
Adviser shall at all times use all reasonable efforts to conform to, and
act in accordance with, any requirements imposed by (i) the provisions of
the Investment Company Act of 1940, as amended (the "Act"), and of any
rules or regulations in force thereunder; (ii) any other applicable
provision of law; (iii) the provisions of the Declaration of Trust, as
amended, and By-Laws of the Fund, as such documents are amended from time
to time; (iv) the investment objectives, policies and restrictions
applicable to the Fund as set forth in the Fund's Registration Statement on
Form N-1A and (v) any policies and determinations of the Board of Trustees
of the Fund.
(d) The Adviser will seek to provide qualified personnel to
fulfill its duties hereunder and will bear all costs and expenses
(including any overhead and personnel costs) incurred in connection with
its duties hereunder and shall bear the costs of any salaries or trustees
fees of any officers or trustees of the Fund who are affiliated persons (as
defined in the Act) of the Adviser. Subject to the foregoing, the Fund
shall be responsible for the payment of all the Fund's other expenses,
including (i) payment of the fees payable to the Adviser under paragraph 4
hereof; (ii) organizational expenses; (iii) brokerage fees and commissions;
(iv) taxes; (v) interest charges on borrowings; (vi) the cost of liability
insurance or fidelity bond coverage for the Fund officers and employees,
and trustees' and officers' errors and omissions insurance coverage; (vii)
legal, auditing and accounting fees and expenses; (viii) charges of the
Fund's custodian, transfer agent and dividend disbursing agent; (ix) the
Fund's pro rata portion of dues, fees and charges of any trade association
of which the Fund is a member; (x) the expenses of printing, preparing and
mailing proxies, stock certificates and reports, including the Fund's
prospectus and statement of additional information, and notices to
shareholders; (xi) filing fees for the registration or qualification of the
Fund and its shares under federal or state securities laws; (xii) the fees
and expenses involved in registering and maintaining registration of the
Fund's shares with the Securities and Exchange Commission; (xiii) the
expenses of holding shareholder meetings; (xiv) the compensation, including
fees, of any of the Fund's trustees, officers or employees who are not
affiliated persons of the Adviser; (xv) all expenses of computing the
Fund's net asset value per share, including any equipment or services
obtained solely for the purpose of pricing shares or valuing the Fund's
investment portfolio; (xvi) expenses of personnel performing shareholder
servicing functions and all other distribution expenses payable by the
Fund; and (xvii) litigation and other extraordinary or non-recurring
expenses and other expenses properly payable by the Fund.
(e) The Adviser shall give the Fund the benefit of its best
judgment and effort in rendering services hereunder, but neither the
Adviser nor any of its officers, directors, employees, agents or
controlling persons shall be liable for any act or omission or for any loss
sustained by the Fund in connection with the matters to which this
Agreement relates, except a loss resulting from willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of
its reckless disregard of its obligations and duties under this Agreement;
provided, however, that the foregoing shall not constitute a waiver of any
rights which the Fund may have which may not be waived under applicable
law.
(f) Nothing in this Agreement shall prevent the Adviser or any
director, officer, employee or other affiliate thereof from acting as
investment adviser for any other person, firm or corporation, or from
engaging in any other lawful activity, and shall not in any way limit or
restrict the Adviser or any of its directors, officers, employees or agents
from buying, selling or trading any securities for its or their own
accounts or for the accounts of others for whom it or they may be acting.
3. Portfolio Transactions
In the course of the Adviser's execution of portfolio
transactions for the Fund, it is agreed that the Adviser shall employ
securities brokers and dealers which, in its judgment, will be able to
satisfy the policy of the Fund to seek the best execution of its portfolio
transactions at reasonable expenses. For purposes of this agreement, "best
execution" shall mean prompt, efficient and reliable execution at the most
favorable price obtainable. Under such conditions as may be specified by
the Fund's Board of Trustees in the interest of its shareholders and to
ensure compliance with applicable law and regulations, the Adviser may (a)
place orders for the purchase or sale of the Fund's portfolio securities
with its affiliate, Gabelli & Company, Inc.; (b) pay commissions to brokers
other than its affiliate which are higher than might be charged by another
qualified broker to obtain brokerage and/or research services considered by
the Adviser to be useful or desirable in the performance of its duties
hereunder and for the investment management of other advisory accounts over
which it or its affiliates exercise investment discretion; and (c) consider
sales by brokers (other than its affiliate distributor) of shares of the
Fund and any other mutual fund for which it or its affiliates act as
investment adviser, as a factor in its selection of brokers and dealers for
the Fund's portfolio transactions.
4. Compensation of the Adviser
(a) Subject to paragraph 2(b), the Fund agrees to pay to
the Adviser out of the Fund's assets and the Adviser agrees to accept as
full compensation for all services rendered by or through the Adviser
(other than any amounts payable to the Adviser pursuant to paragraph 4(b))
a fee computed daily and payable monthly in an amount equal on an
annualized basis to 1.0% of the Fund's daily average net asset value. For
any period less than a month during which this Agreement is in effect, the
fee shall be prorated according to the proportion which such period bears
to a full month of 28, 29, 30 or 31 days, as the case may be.
(b) The Fund will pay the Adviser separately for any costs and
expenses incurred by the Adviser in connection with distribution of the
Fund's shares in accordance with the terms (including proration or
nonpayment as a result of allocations of payments) of Plans of Distribution
(collectively, the "Plan") adopted by the Fund pursuant to Rule 12b-1 under
the Act as such Plan may be in effect from time to time; provided, however,
that no payments shall be due or paid to the Adviser hereunder unless and
until this Agreement shall have been approved by Board Approval and
Disinterested Board Approval (as such terms are defined in such Plan). The
Fund reserves the right to modify or terminate such Plan at any time as
specified in the Plan and Rule 12b-1, and this subparagraph shall thereupon
be modified or terminated to the same extent without further action of the
parties. The persons authorized to direct the payment of the funds pursuant
to this Agreement and the Plan shall provide to the Fund's Board of
Trustees, and the Trustees shall review, at least quarterly a written
report of the amount so paid and the purposes for which such expenditures
were made.
(c) For purposes of this Agreement, the net assets of the
Fund shall be calculated pursuant to the procedures adopted by resolutions
of the Trustees of the Fund for calculating the net asset value of the
Fund's shares.
5. Indemnity.
(a) The Fund hereby agrees to indemnify the Adviser and
each of the Adviser's directors, officers, employees, and agents (including
any individual who serves at the Adviser's request as director, officer,
partner, trustee or the like of another corporation) and controlling
persons (each such person being an "indemnitee) against any liabilities and
expenses, including amounts paid in satisfaction of judgments, in
compromise or as fines and penalties, and counsel fees (all as provided in
accordance with applicable corporate law) reasonably incurred by such
indemnitee in connection with the defense or disposition of any action,
suit or other proceeding, whether civil or criminal, before any court or
administrative or investigative body in which he may be or may have been
involved as a party or otherwise or with which he may be or may have been
threatened, while acting in any capacity set forth above in this paragraph
or thereafter by reason of his having acted in any such capacity, except
with respect to any matter as to which he shall have been adjudicated not
to have acted in good faith in the reasonable belief that his action was in
the best interest of the Fund and furthermore, in the case of any criminal
proceeding, so long as he had no reasonable cause to believe that the
conduct was unlawful, provided, however, that (1) no indemnitee shall be
indemnified hereunder against any liability to the Fund or its shareholders
or any expense of such indemnitee arising by reason of (i) willful
misfeasance, (ii) bad faith, (iii) gross negligence iv) reckless disregard
of the duties involved in the conduct of his position (the conduct referred
to in such clauses (i) through (v) being sometimes referred to herein as
"disabling conduct"), (2) as to any matter disposed of by settlement or a
compromise payment by such indemnitee, pursuant to a consent decree or
otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless there has been a determination that such
settlement or compromise is in the best interests of the Fund and that such
indemnitee appears to have acted in good faith in the reasonable belief
that his action was in the best interest of the Fund and did not involve
disabling conduct by such indemnitee and (3) with respect to any action,
suit or other proceeding voluntarily prosecuted by any indemnitee as
plaintiff, indemnification shall be mandatory only if the prosecution of
such action, suit or other proceeding by such indemnitee was authorized by
a majority of the full Board of the Fund. Notwithstanding the foregoing the
Fund shall not be obligated to provide any such indemnification to the
extent such provision would waive any right which the Fund cannot lawfully
waive.
(b) The Fund shall make advance payments in connection
with the expenses of defending any action with respect to which
indemnification might be sought hereunder if the Fund receives a written
affirmation of the indemnitee's good faith belief that the standard of
conduct necessary for indemnification has been met and a written
undertaking to reimburse the Fund unless it is subsequently determined that
he is entitled to such indemnification and if the trustees of the Fund
determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must
be met: (A) the indemnitee shall provide a security for his undertaking,
(B) the Fund shall be insured against losses arising by reason of any
lawful advances, or (C) a majority of a quorum of trustees of the Fund who
are neither "interested persons" of the Fund (as defined in Section
2(a)(19) of the Act) nor parties to the proceeding ("Disinterested
Non-Party Trustees") or an independent legal counsel in a written opinion,
shall determine, based on a review of readily available facts (as opposed
to a full trial-type inquiry), that there is reason to believe that the
indemnitee ultimately will be found entitled to indemnification.
(c) All determinations with respect to indemnification
hereunder shall be made (1) by a final decision on the merits by a court or
other body before whom the proceeding was brought that such indemnitee is
not liable by reason of disabling conduct or, (2) in the absence of such a
decision, by (i) a majority vote of a quorum of the Disinterested Non-Party
Trustees of the Fund, or (ii) if such a quorum is not obtainable or even,
if obtainable, if a majority vote of such quorum so directs, independent
legal counsel in a written opinion.
The rights accruing to any indemnitee under these provisions
shall not exclude any other right to which he may be lawfully entitled.
6. Duration and Termination
This Agreement shall become effective upon on the date hereof
and shall continue in effect for a period of two years and thereafter from
year to year, but only so long as such continuation is specifically
approved at least annually in accordance with the requirements of the Act.
This Agreement may be terminated by the Adviser at any time
without penalty upon giving the Fund sixty days written notice (which
notice may be waived by the Fund) and may be terminated by the Fund at any
time without penalty upon giving the Adviser sixty days notice (which
notice may be waived by the Adviser), provided that such termination by the
Fund shall be directed or approved by the vote of a majority of the
Trustees of the Fund in office at the time or by the vote of the
holders of a "majority of the voting securities" (as defined in the Act) of
the Fund at the time outstanding and entitled to vote or, with respect to
paragraph 4(b), by a majority of the Trustees of the Fund who are not
"interested persons" of the Fund and who have no direct or indirect
financial interest in the operation of the Plan or any agreements related
to the Plan. This Agreement shall terminate automatically in the event of
its assignment (as "assignment" is defined in the Act and the rules
thereunder.)
It is understood and hereby agreed that the word "Gabelli" is
the property of the Adviser for copyright and other purposes. The Fund
further agrees that the word "Gabelli" in its name is derived from the name
of Xxxxx X. Xxxxxxx and such name may freely be used by the Adviser for
other investment companies, entities or products. The Fund further agrees
that, in the event that the Adviser shall cease to act as investment
adviser to the Fund and the Fund shall promptly take all necessary and
appropriate action to change its name to names which do not include the
word "Gabelli"; provided, however, that the Fund may continue to use the
word "Gabelli" if the Adviser consents in writing to such use.
7. Notices
Any notice under this Agreement shall be in writing to the
other party at such address as the other party may designate from time to
time for the receipt of such notice and shall be deemed to be received on
the earlier of the date actually received or on the fourth day after the
postmark if such notice is mailed first class postage prepaid.
8. Governing Law
This Agreement shall be construed in accordance with the laws
of the State of New York for contracts to be performed entirely therein and
in accordance with the applicable provisions of the Act.
IN WITNESS WHEREOF, the parties hereto have caused the
foregoing instrument to be executed by their duly authorized officers, all
as of the day and the year first above written.
THE GABELLI BLUE CHIP VALUE FUND
By________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
GABELLI FUNDS, LLC.
By________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance
