Exhibit (5)(a)(8)
XXXXXXX X. XXXXXXXXX FUND, INC.
FORM OF
INVESTMENT MANAGEMENT AGREEMENT
INVESTMENT MANAGEMENT AGREEMENT, dated as of ________________, ____ between
XXXXXXX X. XXXXXXXXX FUND, INC., a Maryland Corporation, (the "Fund"), on behalf
of the Xxxxxxxxx International Value Portfolio (the "Portfolio"), and XXXXXXX X.
XXXXXXXXX & CO., INC., a New York Corporation (the "Adviser" or "Xxxxxxxxx").
In consideration of the mutual agreements herein made, the parties hereto agree
as follows:
1. Duties of the Adviser. The Adviser shall manage the investment operations of
the Portfolio and the Fund including, but not limited to, continuously providing
the Portfolio with investment management, including investment research, advice
and supervision, determining which securities or other investments including,
but not limited to, debt and equity securities, futures, options and options on
futures, shall be purchased or sold by the Portfolio, making purchases and sales
of securities and such other investments on behalf of the Portfolio and
determining how voting and other rights with respect to securities and other
investments owned by the Fund on behalf of the Portfolio shall be exercised,
subject in each case to oversight by the Board of Directors of the Fund (the
"Directors" or the "Board") and in accordance with the investment objectives and
policies of the Fund and of the Portfolio set forth in the Registration
Statement and the current Prospectus and Statement of Additional Information
relating to the Fund or the Portfolio, as amended from time to time, the
requirements of the Investment Company Act of 1940, as amended (the "Act") and
other applicable law. The Fund understands that the Adviser may also act as the
investment manager to other persons or entities, including other investment
companies.
2. Limitation of Liability. Subject to Section 36 of the Act, the Adviser, and
the directors, officers and employees of the Adviser, shall not be liable to the
Fund or the Portfolio for any error of judgment or mistake of law or for any
loss arising out of any investment or the performance or non-performance of
duties under this Agreement, except for willful misfeasance, bad faith or gross
negligence in the performance of, or by reason of reckless disregard of,
obligations and duties under this Agreement.
3. Indemnification.
(a) The Fund, on behalf of the Portfolio, shall indemnify and hold harmless the
Adviser, and the directors, officers, and employees of the Adviser, against any
loss, liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or
expenses and reasonable counsel fees incurred in connection therewith) arising
out of the performance or non-performance of any duties under this Agreement,
provided, however, that nothing herein shall be deemed to protect the Adviser or
any director, officer or employee thereof against any liability to the Fund or
its stockholders, to which the Adviser or any director, officer or employee
thereof would otherwise be subject by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement.
4. Expenses. The Adviser shall pay all of its expenses arising from the
performance of its obligations under Section 1 of this Agreement and shall pay
any salaries, fees and expenses of the Directors who are employees of the
Adviser. The Adviser shall not be required to pay any other expenses of the Fund
or the Portfolio, including (a) the fees payable to Xxxxxxxxx under this
Agreement and the Shareholder Servicing and Administrative Agreement; (b) the
fees and expenses of Directors who are not affiliated with Xxxxxxxxx; (c) the
fees and expenses of the Custodian and Transfer Agent including but not limited
to fees and expenses relating to Fund accounting, pricing of the Portfolio's
shares, and computation of net asset value; (d) the fees and expenses of
calculating yield and/or performance of the Portfolio; (e) the charges and
expenses of legal counsel and independent accountants; (f) all taxes and
corporate fees payable to governmental agencies; (g) the fees of any trade
association of which the Fund is a member; (h)
reimbursement of the Portfolio's share of the organization expenses of the
Portfolio or the Fund; (i) the fees and expenses involved in registering and
maintaining registration of the Fund and the shares of the Portfolio with the
Securities and Exchange Commission, registering the Fund as a broker or dealer
and qualifying the shares of the Portfolio under state securities laws,
including the preparation and printing of the registration statements and
prospectuses for such purposes, allocable communications expenses with respect
to investor services, all expenses of shareholders' and Board of Directors'
meetings and preparing, printing and mailing proxies, prospectuses and reports
to shareholders; (j) brokers' commissions, dealers' xxxx-ups and any issue or
transfer taxes chargeable in connection with the Portfolio's transactions; (k)
the cost of stock certificates representing shares of the Portfolio; (l)
insurance expenses, including, but not limited to, the cost of a fidelity bond,
directors and officers insurance and errors and omissions insurance; and (m)
litigation and indemnification expenses, expenses incurred in connection with
mergers, and other extraordinary expenses not incurred in the ordinary course of
the Portfolio's business.
5. Compensation. As compensation for the services performed and the facilities
and personnel provided by the Adviser pursuant to Section 1 of this Agreement,
the Fund, on behalf of the Portfolio, will pay the Adviser, promptly after the
end of each month:
(a) A fee assessed at an annual rate of 1% of the Portfolio's average daily net
assets that is up to, but not exceeding, $1,000,000,000; and
(b) A fee assessed at an annual rate of .90 of 1% of the amount of the
Portfolio's average daily net assets that exceeds $1,000,000,000.
If the Adviser shall serve hereunder for less than the whole of any month, the
fee hereunder shall be prorated.
6. Purchase and Sale of Securities. The Adviser shall purchase securities from
or through and sell securities to or through such persons, brokers, or dealers
as the Adviser shall deem appropriate in order to carry out the policy with
respect to portfolio transactions as set forth in the Registration Statement and
the current Prospectus or Statement of Additional Information covering the
Portfolio, as amended from time to time, or as the Directors may direct from
time to time. Nothing herein shall prohibit the Directors from approving the
payment by the Fund of additional compensation to others for consulting
services, supplemental research and security and economic analysis.
7. Term of Agreement. This Agreement shall continue in effect with respect to
the Portfolio for a period of more than two years from the date hereof only so
long as such continuance is specifically approved at least annually in
conformity with the requirements of the Act with regard to investment advisory
contracts; provided, however, that this Agreement may be terminated at any time
without the payment of any penalty, on behalf of the Portfolio, by the Fund, by
the Board or, with respect to the Portfolio, by vote of a majority of the
outstanding voting securities (as defined in the Act) of the Portfolio, or by
the Adviser on not more than 60 days' nor less than 30 days' written notice to
the other party. This Agreement shall terminate automatically in the event of
its assignment (as defined in the Act).
8. Miscellaneous. The Fund hereby agrees that if at any time the Adviser shall
cease to act as investment adviser to the Portfolio or to the Fund, or if at any
time during the continuation of this Agreement the Adviser shall change its name
to delete the reference to Xxxxxxx X. Xxxxxxxxx, the Fund shall take all steps
necessary under law to change its corporate name to delete the reference to
Xxxxxxx X. Xxxxxxxxx or to delete the reference to Xxxxxxxxx from the name of
the Portfolio, and shall thereafter refrain from using such name with reference
to the Portfolio and, if applicable, the Fund.
This Agreement contains the entire agreement between the parties hereto and
supersedes all prior agreements, understandings and arrangements with respect to
the subject matter hereof. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require, or
to impose any duty upon, either of the parties to do anything in violation of
any applicable laws or regulations.
IN WITNESS WHEREOF, the Fund, on behalf of the Portfolio, and the Adviser have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXX X. XXXXXXXXX & CO., INC.
By:
XXXXXXX X. XXXXXXXXX FUND, INC.
By:
