Exhibit - d
INVESTMENT ADVISORY CONTRACT
AGREEMENT, made by and between the Index Plus Fund, Inc., a Texas
Corporation, (hereinafter called "Fund") and Xxxxx Asset Advisors,
LLC, a Texas Limited Liability Company (hereinafter called
"Investment Adviser")
WITNESSETH: WHEREAS, Fund engages in the business of investing and
reinvesting its assets and property in various stocks and
securities and Investment Adviser engages in the business of
providing investment advisory services.
1. The Fund hereby employs the Investment Adviser, for the period
set forth in Paragraph 7 hereof, and on the terms set forth
herein, to render investment advisory services to the Fund.
The Investment Adviser hereby accepts such employment and agrees,
during such period, to render the services and assume the
obligations herein set forth, for the compensation provided.
The Investment Adviser shall, for all purposes herein, be deemed
to be an independent contractor, and shall, unless otherwise
expressly provided and authorized, have no authority to act for
or represent the Fund in any way, or in any way be deemed an agent
of the Fund.
2. As a compensation for the services to be rendered to the Fund
by the Investment Adviser under the provisions of this Agreement,
the Fund shall pay to the Investment Adviser monthly a fee equal
to one-twelfth of 1.25 percent per month (the equivalent of 1.25%
per annum) of the daily average net assets of the Fund during the
month. The first payment of fee hereunder shall be prorated on a
daily basis from the date this Agreement takes effect but may
be waived by the Investment Adviser under special circumstances.
3. The Investment Adviser will pay the start up expenses of the
Fund and pay all future operating expenses of the Fund, except
brokerage fees and commissions, interest, taxes, legal expense
and other extraordinary expenses. This agreement shall begin
when the Fund's registration becomes effective and remain in
effect in perpetuity.
4. It is expressly understood and agreed that the services to be
rendered by the Investment Adviser to the Fund under the
provisions of this Agreement are not to be deemed to be
exclusive, and the Investment Adviser shall be free to render
different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired
thereby.
5. It is understood and agreed that directors, officers, employees,
agents and shareholders of the Fund may be interested in the
Investment Adviser as directors, officers, employees, agents and
shareholders, and that directors, officers, employees, agents and
shareholders of the Investment Adviser may be interested in the
Fund, as directors, officers, employees, agents and shareholders
or otherwise, and that the Investment Adviser, itself, may be
interested in the Fund as a shareholder or otherwise, specifically,
it is understood and agreed that directors, officers, employees,
agents and shareholders of the Investment Adviser may continue as
directors, officers, employees, agents and shareholders of the Fund;
that the Investment Adviser, its directors, officers, employees,
agents and shareholders may engage in other business, may render
investment advisory services to other investment companies, or to any
other corporation, association, firm or individual, may render
underwriting services to the Fund, or to any other investment company,
corporation, association, form or individual. The Investment Advisor
shall bear expenses and salaries necessary and incidental to the
conduct of the Fund's business, including but not in limitation of
the foregoing, the costs incurred in the maintenance of its own books,
records, and procedures; dealing with its own shareholders; the
payment of dividends; transfers of stock (including issuance &
redemption of shares); reports and notices to shareholders; expenses
of annual stockholders meetings; miscellaneous office expenses; and
custodian, legal, accounting and registration fees. The Fund shall
bear expenses including brokerage commissions, interest expense,
taxes and extraordinary legal expense. Employees, officers and
agents of the Investment Adviser who are, or may in the future be,
directors and/or senior officers of the Fund shall receive no
remuneration from the Fund or acting in such capacities for the
Fund. In the conduct of the respective businesses of the parties
hereto and in the performance of this agreement, the Fund and the
Investment Adviser may share common facilities and personnel common
to each, with appropriate proration of expenses.
6. Investment Adviser shall give the Fund the benefit of its best
judgment and efforts in rendering these services, and Fund agrees as
an inducement to the undertaking of these services that Investment
Adviser shall not be liable hereunder for any mistake of judgment or
any event whatsoever, provided that nothing herein shall be deemed to
protect, or purport to protect, Investment Adviser against any liability
to Fund or to its security holders to which Investment Adviser would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties hereunder, or by reason
of reckless disregard of obligations and duties hereunder.
7. This agreement shall become effective November 22, 2002 and continue
in effect until November 22, 2003 and, thereafter, only so long as such
continuance is approved at least annually by votes of the Fund's Board
of Directors cast in person at a meeting called for the purpose of
voting on such approval, including votes of a majority of the Directors
who are not parties to such agreement or interested persons of any such
party. This agreement may be terminated at any time upon 60 days prior
written notice, without payment of any penalty, by the Fund's Board of
Directors or by vote of a majority of the outstanding voting securities
of the Fund. The contract will automatically terminate in the event of its
assignment by the Investment Adviser (within the meaning of the Investment
Company Act of 1940), which shall be deemed to include transfer of control
of the Investment Adviser. Upon termination of this agreement, the
obligations of all parties hereunder shall cease and terminate as of the
date of such termination, except for any obligation to respond for a
breach of this Agreement committed prior to such termination and except
for the obligation of the Fund to pay to the Investment Adviser the fee
provided in Paragraph 2 hereof, prorated to the date of termination.
8. This Agreement shall not be assigned by the Fund without prior
written consent thereto of the Investment Adviser. This Agreement
shall terminate automatically in the event of its assignment by the
Investment Adviser unless an exemption from such automatic termination
is granted by order or rule of the Securities and Exchange Commission.
IN WITNESS WHEREOF, the parties hereto have caused their corporate seals
to be affixed and duly attested and their presence to be signed by their
duly authorized officers this 22nd day of
November, 2002.
Index Plus Fund, Inc. By: /s/ Xxxxx X. Xxxxx, Pres.
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Xxxxx X. Xxxxx, President
Xxxxx Asset Advisors, LLC By: /s/ Xxxxx X. Xxxxx, Pres
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Xxxxx X. Xxxxx, President
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