INVESTMENT ADVISORY AGREEMENT
AGREEMENT made this _____ day of ____________, 1985,
between XXXXXXXX FUND, INC., a Maryland corporation (the "Fund"),
and XXXXXXXX COMPANY, INC., a Wisconsin corporation (the
"Adviser"):
1. The Fund hereby employs the Adviser to manage the
investment and reinvestment of the assets of the Fund for the
period and on the terms set forth in this Agreement. The
Adviser hereby accepts such employment for the compensation
herein provided and agrees during such period to render the
services and to assume the obligations herein set forth.
2. The Adviser shall for all purposes herein be deemed to
be an independent contractor and shall, unless otherwise
expressly provided or authorized, have no authority to act for
or represent the Fund in any way or otherwise be deemed an agent
of the Fund. However, one or more shareholders, officers,
directors or employees of the Adviser may serve as directors
and/or officers of the Fund, but without compensation or
reimbursement of expenses for such services from the Fund.
Nothing herein contained shall be deemed to require the Fund to
take any action contrary to its Articles of Incorporation or any
applicable statute or regulation, or to relieve or deprive the
board of directors of the Fund of its responsibility for and
control of the affairs of the Fund.
3. The Adviser, at its own expense and without reimbursement
from the Fund, shall furnish office space, office facilities, and
executive officers and executive expenses for managing the assets
of the Fund. The Adviser shall also bear all sales and
promotional expenses of the Fund, including the cost of
prospectuses delivered to prospective investors other than those
who have requested information from the Fund, except for expenses
incurred in complying with laws regulating the issue or sale of
securities. However, fees paid for attendance at meetings of the
Fund's board of directors to directors of the Fund who are not
interested persons of the Adviser, as defined in the Investment
Company Act of 1940, as amended, or officers or employees of the
Fund, shall be borne by the Fund. The Fund shall bear all other
expenses of its operations, or shall reimburse the Adviser for
such other expenses initially incurred by it, provided that the
total expenses borne by the Fund, including the Adviser's fee but
excluding all Federal, State and local taxes, interest, and
brokerage charges, shall not in any year exceed that percentage
of average net asset value of the Fund for such year, as
determined by appraisals made as of the close of each business
day, which is the most restrictive percentage provided by the
state laws of the various states in which the Fund's common stock
is qualified for sale. The expenses of the Fund's operation borne
by the Fund include, by way of illustration and not limitation,
the costs of preparing and printing its registration statements
required under the Securities Act of 1933 and the Investment
Company Act of 1940 (and amendments thereto), the expense of
registering its shares with the Securities and Exchange
Commission and in the various states, the cost of prospectuses,
the cost of stock certificates, reports to shareholders, interest
charges, taxes, legal expenses, noninterested directors'
fees, salaries of administrative and clerical personnel,
association membership dues, auditing and accounting services,
fees and expenses of the custodian of the Fund's assets,
printing and mailing expenses, postage, charges and expenses
of dividend disbursing agents, registrars and stock transfer
agents and the cost of keeping all necessary shareholder records
and accounts.
The Fund shall monitor its expense ratio on a regular basis.
At such times as it appears that the expenses of the Fund will
exceed the expense limitation established herein, the Fund shall
create an account receivable from the Adviser for the amount of
such excess. The Adviser is deemed indebted to the Fund as of
the last day of the Fund's fiscal year and shall pay to the Fund
the amount shown on such account receivable not later than the
last day of the first month following the end of the Fund's
fiscal year.
4. For the services to be rendered and the charges and
expenses to be assumed by the Adviser hereunder, the Fund shall
pay to the Adviser an annual fee, paid monthly, based on the
average net asset value of the Fund, as determined by appraisals
made as of the close of each business day of the month. The
annual fee shall be seventy-five one hundredths of one percent
(.75 of 1%) of such net asset value up to an including
$50,000,000, and sixty-five one hundredths of one percent (.65 of
1%) of the average net asset value of the Fund in excess of
$50,000,000. Such fee shall be prorated in any month in which
this Agreement is not in effect for the entire month.
5. The Adviser shall not take, and shall not permit any of
its shareholders, officers, directors, or employees to take a
long or short position in the shares of the Fund, except for the
purchase of shares of the Fund for investment purposes at the
same price as that available to the public at the time of
purchase, or in connection with the original capitalization of
the Fund.
6. The services of the Adviser to the Fund hereunder are not
to be deemed exclusive and the Adviser shall be free to furnish
similar services to others so long as the services hereunder are
not impaired thereby. Although the Adviser has permitted and is
permitting the Fund to use the name '1Nicholas", it is understood
and agreed that the Adviser reserves the right to use and to
permit other persons, firms or corporations, including investment
companies, to use such name.
7. This Agreement may not be amended without the approval of
the board of directors of the Fund in the manner required by the
Investment Company Act of 1940, and by the vote of a majority of
the outstanding voting securities of the Fund, as defined in the
Investment Company Act of 1940.
8. This Agreement may be terminated at any time, without the
payment of any penalty, by the board of directors of the Fund or
by a vote of the majority of the outstanding voting securities of
the Fund, as defined in the Investment Company Act of 1940, upon
giving sixty (60) days written notice to the Adviser. This
Agreement may be terminated by the Adviser at any time upon the
giving of sixty (60) days written notice to the Fund. This
Agreement shall terminate automatically in the event of its
assignment (as defined in Section 2(aX4) of the
Investment Company Act of 1940). Until terminated as
hereinbefore provided, this Agreement shall continue in effect so
long as such continuance is specifically approved annually by (i)
the board of directors of the Fund or by a vote of a majority of
the outstanding voting securities of the Fund, as defined in the
Investment Company Act of 1940, and (ii) the board of directors
of the Fund in the manner required by the Investment Company Act
of 1940, provided that any such approval may be made effective no
more than sixty (60) days thereafter.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day first written.
XXXXXXXX FUND, INC.
/s/ Xxxxxx X. Xxxxxxxx
_____________________________
By: Xxxxxx 0. Xxxxxxxx, President
/s/ Xxxxxx X. Xxxxxx
___________________________
By: Xxxxxx X. Xxxxxx, Secretary
XXXXXXXX COMPANY, INC.
/s/ Xxxxxx X. Xxxxxxxx
_____________________________
By: Xxxxxx 0. Xxxxxxxx, President
/s/ Xxxxx X. Xxxxxxxxxx
______________________________
Xxxxx X. Xxxxxxxxxx, Secretary
