EX-99.B5
Dodge & ▇▇▇ Stock Fund
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May 1, 1998
Dodge & ▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INVESTMENT MANAGEMENT AGREEMENT
DODGE & ▇▇▇ STOCK FUND
Ladies and Gentlemen:
Dodge & ▇▇▇ Funds (the "Trust") has been established as a Delaware business
trust to engage in the business of an investment company. Pursuant to the
Trust's Trust Instrument, as amended from time-to-time (the "Trust
Instrument"), the Board of Trustees has divided the Trust's shares of
beneficial interest, par value $.01 per share, (the "Shares") into separate
series, or funds, including Dodge & ▇▇▇ Stock Fund (the "Fund"). The Fund may
be abolished and dissolved, and additional series established, from time to time
by action of the Trustees. The Trust, on behalf of the Fund, has selected you to
act as the sole investment manager of the Fund and to provide certain other
services, as more fully set forth below, and you have indicated that you are
willing to act as such investment manager and to perform such services under the
terms and conditions hereinafter set forth. Accordingly, the Trust on behalf of
the Fund agrees with you as follows:
1. DELIVERY OF DOCUMENTS. The Trust engages in the business of
investing and reinvesting the assets of the Fund in the manner and in
accordance with the investment objectives, policies and restrictions specified
in the currently effective Prospectus (the "Prospectus") and Statement of
Additional Information (the "SAI") relating to the Fund included in the
Trust's Registration Statement on Form N-1A, as amended from time to time,
(the "Registration Statement") filed by the Trust under the Investment
Company Act of 1940, as amended, (the "1940 Act") and the Securities Act of
1933, as amended. Copies of the documents referred to in the preceding
sentence have been furnished to you by the Trust. The Trust has also furnished
you with copies properly certified or authenticated of each of the following
additional documents related to the Trust and the Fund:
(a) The Trust Instrument dated February 13, 1998, as amended to date;
(a) By-Laws of the Trust as in effect on the date hereof (the "By-
Laws"); and
(a) Resolutions of the Trustees of the Trust and the shareholders of the
Fund selecting you as investment manager and approving the form of this
Agreement.
The Trust will furnish you from time to time with copies, properly certified
or authenticated, of all amendments of or supplements, if any, to the foregoing,
including the Prospectus, the SAI and the Registration Statement.
2. PORTFOLIO MANAGEMENT SERVICES. As manager of the assets of the Fund,
you shall provide continuing investment management of the assets of the Fund
in accordance with the investment objectives, policies and restrictions set
forth in the Prospectus and SAI; the applicable provisions of the 1940 Act and
the Internal Revenue Code, as amended (the "Code") relating to regulated
investment companies and all rules and regulations thereunder; and all other
applicable federal and state laws and regulations of which you have knowledge;
subject always to policies and instructions adopted by the Trust's Board of
Trustees. In connection therewith, you shall use reasonable efforts to manage
the Fund so that it will qualify as a regulated investment company under
Subchapter M of the Code and regulations issued thereunder. The Fund shall
have the benefit of the investment analysis and research, the review of
current economic conditions and trends and the consideration of long-range
investment policy generally available to your investment advisory clients. In
managing the Fund in accordance with the requirements set forth in this
section 2, you shall be entitled to receive and act upon advice of counsel to
the Trust or counsel to you. You shall also make available to the Trust
promptly upon request all of the Fund's investment records and ledgers as are
necessary to assist the Trust in complying with the requirements of the 1940
Act and other applicable laws. To the extent required by law, you shall
furnish to regulatory authorities having the requisite authority any
information or reports in connection with the services provided pursuant to
this Agreement which may be requested in order to ascertain whether the
operations of the Trust are being conducted in a manner consistent with
applicable laws and regulations.
You shall determine the securities, instruments, investments, currencies,
repurchase agreements and other contracts relating to investments to be
purchased, sold or entered into by the Fund and place orders with broker-
dealers, foreign currency dealers or others pursuant to your determinations and
all in accordance with Fund policies as expressed in the Registration Statement.
You shall determine what portion of the Fund's portfolio shall be invested in
securities and other assets and what portion, if any, should be held uninvested.
You shall furnish to the Trust's Board of Trustees periodic reports on the
investment performance of the Fund and on the performance of your obligations
pursuant to this Agreement, and you shall supply such additional reports and
information as the Trust's officers or Board of Trustees shall reasonably
request.
3. ADMINISTRATIVE SERVICES. In addition to the portfolio management
services specified above in section 2, you shall furnish at your expense for
the use of the Fund such office space and facilities in the United States as
the Fund may require for its reasonable needs, and you (or one or more of your
affiliates designated by you) shall render to the Trust administrative
services on behalf of the Fund necessary for operating as an open-end
investment company and not provided by persons not parties to this Agreement
including, but not limited to: preparing reports to and meeting materials for
the Trust's Board of Trustees and overseeing reports and notices to Fund
shareholders; supervising, negotiating contractual arrangements with, to the
extent appropriate, and monitoring the performance of, accounting agents,
custodians, depositories, transfer agents and pricing agents, accountants,
attorneys, printers, underwriters, brokers and dealers, insurers and other
persons in any capacity deemed to be necessary or desirable to Fund
operations; preparing and making filings with the Securities and Exchange
Commission (the "SEC") and other regulatory and self-regulatory
organizations, including, but not limited to, preliminary and definitive proxy
materials, post-effective amendments to the Registration Statement, semi-
annual reports on Form N-SAR and
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notices pursuant to Rule 24f-2 under the 1940 Act; filing of the Fund's
federal, state and local tax returns; providing assistance with investor and
public relations matters; monitoring the valuation of portfolio securities and
the calculation of net asset value; monitoring the registration of Shares of
the Fund under applicable federal and state securities laws; maintaining or
causing to be maintained for the Fund all books, records and reports and any
other information required under the 1940 Act, to the extent that such books,
records and reports and other information are not maintained by the Fund's
custodian or other agents of the Fund; and otherwise assisting the Trust as it
may reasonably request in the conduct of the Fund's business, subject to the
direction and control of the Trust's Board of Trustees. Nothing in this
Agreement shall be deemed to shift to you or to diminish the obligations of
any agent of the Fund or any other person not a party to this Agreement which
is employed to provide services to the Fund.
4. ALLOCATION OF CHARGES AND EXPENSES. Except as otherwise specifically
provided in this section 4, you shall pay the compensation and expenses of all
Trustees and officers who are affiliated persons of you, and you shall make
available, without expense to the Fund, the services of such of your
directors, officers and employees as may duly be elected officers of the
Trust, subject to their individual consent to serve and to any limitations
imposed by law. You shall provide at your expense the portfolio management
services described in section 2 hereof and the administrative services
described in section 3 hereof. You shall not be required to pay any expenses
of the Fund other than those specifically allocated to you in this section 4.
In particular, but without limiting the generality of the foregoing, you shall
not be responsible, except to the extent of the reasonable compensation of
such of the Fund's Trustees and officers as are directors, officers or
employees of you whose services may be involved, for the following expenses of
the Fund: organization expenses of the Fund (including out-of-pocket expenses,
but not including your overhead or employee costs); fees payable to you and to
any other Fund advisors or consultants; legal expenses; auditing and
accounting expenses; maintenance of books and records which are required to be
maintained by the Fund's custodian or other agents of the Trust; telephone,
telex, facsimile, postage and other communications expenses; taxes and
governmental fees; fees, dues and expenses incurred by the Fund in connection
with membership in investment company trade organizations; fees and expenses
of the Fund's accounting agent, custodians, subcustodians, transfer agents,
dividend disbursing agents and registrars; payment for portfolio pricing or
valuation services to pricing agents, accountants, bankers and other
specialists, if any; expenses of preparing share certificates and, except as
provided below in this section 4, other expenses in connection with the
issuance, offering, distribution, sale, redemption or repurchase of securities
issued by the Fund; expenses relating to investor and public relations;
expenses and fees of registering or qualifying Shares of the Fund for sale;
interest charges, bond premiums and other insurance expense; freight,
insurance and other charges in connection with the shipment of the Fund's
portfolio securities; the compensation and all expenses (specifically
including travel expenses relating to Trust business) of Trustees, officers
and employees of the Trust who are not affiliated persons of you; brokerage
commissions or other costs of acquiring or disposing of any portfolio
securities of the Fund; expenses of printing and distributing reports, notices
and dividends to shareholders; expenses of printing and mailing Prospectuses
and SAIs of the Fund and supplements thereto; costs of stationery; any
litigation expenses; indemnification of Trustees and officers of the Trust;
and costs of shareholders' and other meetings. You shall be required to pay
expenses of any activity which is primarily intended to result in sales of
Shares of the Fund if and to the extent that such expenses are generally
required to be borne by a principal underwriter which acts as the distributor
of the Fund's Shares pursuant to an underwriting agreement.
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5. MANAGEMENT FEE. For all services to be rendered, payments to be made
and costs to be assumed by you as provided in sections 2, 3 and 4 hereof, the
Trust on behalf of the Fund shall pay you in United States Dollars on the last
day of each month the unpaid balance of a fee equal to an annual rate of 0.50%
of the average daily net assets as defined below of the Fund for such month.
You agree to waive your rights to compensation under this Agreement, for any
calendar year, to the extent that the compensation plus all other expenses of
the Fund exceeds 0.75% of the Fund's average daily net assets. The "average
daily net assets" of the Fund shall mean the average of the values placed on
the Fund's net assets on each day on which the net asset value of the Fund is
determined consistent with the provisions of Rule 22c-1 under the 1940 Act or,
if the Fund lawfully determines the value of its net assets as of some other
time on each business day, as of such time. The value of the net assets of the
Fund shall always be determined pursuant to the applicable provisions of the
Trust Instrument and the Registration Statement. If the determination of net
asset value does not take place for any particular day, then for the purposes
of this section 5, the value of the net assets of the Fund as last determined
shall be deemed to be the value of its net assets as of such time as the value
of the net assets of the Fund's portfolio may be lawfully determined on that
day. You may waive all or a portion of your fees provided for hereunder and
such waiver shall be treated as a reduction in purchase price of your
services. You shall be contractually bound hereunder by the terms of any
publicly announced waiver of your fee, or any limitation of the Fund's
expenses, as if such waiver or limitation were fully set forth herein.
6. AVOIDANCE OF INCONSISTENT POSITION; SERVICES NOT EXCLUSIVE. In
connection with purchases or sales of portfolio securities and other
investments for the account of the Fund, neither you nor any of your
directors, officers or employees shall act as a principal or agent or receive
any commission. You or your agent shall arrange for the placing of all orders
for the purchase and sale of portfolio securities and other investments for
the Fund's account with brokers or dealers selected by you in accordance with
Fund policies as expressed in the Registration Statement. If any occasion
should arise in which you give any advice to clients of yours concerning the
Shares of the Fund, you shall act solely as investment counsel for such
clients and not in any way on behalf of the Fund. Your services to the Fund
pursuant to this Agreement are not to be deemed to be exclusive and it is
understood that you may render investment advice, management and services to
others. In acting under this Agreement, you shall be an independent contractor
and not an agent of the Trust. Whenever the Fund and one or more other
accounts or investment companies advised by you have available funds for
investment, investments suitable and appropriate for each shall be allocated
in accordance with procedures believed by you to be equitable to each entity.
Similarly, opportunities to sell securities shall be allocated in a manner
believed by you to be equitable. The Fund recognizes that in some cases this
procedure may adversely affect the size of the position that may be acquired
or disposed of for the Fund.
7. SUBLICENSE TO USE THE DODGE & ▇▇▇ TRADEMARK. As exclusive licensee
of the rights to use and sublicense the use of the "Dodge & ▇▇▇" trademark
("Dodge & ▇▇▇ ▇▇▇▇"), you hereby grant the Trust a nonexclusive right and
sublicense to use (i) the "Dodge & ▇▇▇" name and ▇▇▇▇ as part of the Trust's
name (the "Fund Name"), and (ii) the Dodge & ▇▇▇ ▇▇▇▇ in connection with the
Trust's investment products and services, in each case only for so long as
this Agreement, any other investment management agreement between you and the
Trust, or any extension, renewal or amendment hereof or thereof remains in
effect, and only for so long as you are a licensee of the Dodge & ▇▇▇ ▇▇▇▇,
provided however, that you agree to use your best efforts to maintain your
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license to use and sublicense the Dodge & ▇▇▇ ▇▇▇▇. The Trust agrees that it
shall have no right to sublicense or assign rights to use the Dodge & ▇▇▇
▇▇▇▇, shall acquire no interest in the Dodge & ▇▇▇ ▇▇▇▇ other than the rights
granted herein, that all of the Trust's uses of the Dodge & ▇▇▇ ▇▇▇▇ shall
inure to the benefit of Dodge & ▇▇▇ as owner and licensor of the Dodge & ▇▇▇
▇▇▇▇ (the "Trademark Owner"), and that the Trust shall not challenge the
validity of the Dodge & ▇▇▇ ▇▇▇▇ or the Trademark Owner's ownership thereof.
The Trust further agrees that all services and products it offers in
connection with the Dodge & ▇▇▇ ▇▇▇▇ shall meet commercially reasonable
standards of quality, as may be determined by you or the Trademark Owner from
time to time, provided that you acknowledge that the services and products the
Trust rendered during the one-year period preceding the date of this Agreement
are acceptable. At your reasonable request, the Trust shall cooperate with you
and the Trademark Owner and shall execute and deliver any and all documents
necessary to maintain and protect (including but not limited to in connection
with any trademark infringement action) the Dodge & ▇▇▇ ▇▇▇▇ and/or enter the
Trust as a registered user thereof. At such time as this Agreement or any
other investment management agreement shall no longer be in effect between you
(or your successor) and the Trust, or you no longer are a licensee of the
Dodge & ▇▇▇ ▇▇▇▇, the Trust shall (to the extent that, and as soon as, it
lawfully can) cease to use the Fund Name or any other name indicating that it
is advised by, managed by or otherwise connected with you (or any organization
which shall have succeeded to your business as investment manager) or the
Trademark Owner. In no event shall the Trust use the Dodge & ▇▇▇ ▇▇▇▇ or any
other name or ▇▇▇▇ confusingly similar thereto (including, but not limited to,
any name or ▇▇▇▇ that includes the name "Dodge & ▇▇▇") if this Agreement or
any other investment advisory agreement between you (or your successor) and
the Fund is terminated.
8. LIMITATION OF LIABILITY OF MANAGER. As an inducement to your
undertaking to render services pursuant to this Agreement, the Trust agrees
that you shall not be liable under this Agreement for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, provided that nothing in this
Agreement shall be deemed to protect or purport to protect you against any
liability to the Trust, the Fund or its shareholders to which you would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your duties, or by reason of your reckless
disregard of your obligations and duties hereunder. Any person, even though
also employed by you, who may be or become an employee of and paid by the Fund
shall be deemed, when acting within the scope of his or her employment by the
Fund, to be acting in such employment solely for the Fund and not as your
employee or agent.
9. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
remain in force until December 31, 1998, and continue in force from year to
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities of the Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the 1940 Act
and the rules and regulations thereunder and any applicable SEC exemptive
order therefrom. This Agreement may be terminated with respect to the Fund at
any time, without the payment of any penalty, by the vote of a majority of the
outstanding voting securities of the Fund or by the Trust's Board of Trustees
on 60 days' written notice to you, or
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by you on 60 days' written notice to the Trust. This Agreement shall terminate
automatically in the event of its assignment.
10. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall
be effective until approved in a manner consistent with the 1940 Act and rules
and regulations thereunder and any applicable SEC exemptive order therefrom.
11. LIMITATION OF LIABILITY FOR CLAIMS. The Trust Instrument, a copy of
which, together with all amendments thereto, is on file in the Office of the
Secretary of the State of Delaware, provides that the name "Dodge & ▇▇▇
Funds" refers to the Trustees under the Trust Instrument collectively as
Trustees and not as individuals or personally, and that no shareholder of the
Fund, or Trustee, officer, employee or agent of the Trust, shall be subject to
claims against or obligations of the Trust or of the Fund to any extent
whatsoever, but that the Trust estate only shall be liable. You are hereby
expressly put on notice of the limitation of liability as set forth in the
Trust Instrument and you agree that the obligations assumed by the Trust on
behalf of the Fund pursuant to this Agreement shall be limited in all cases to
the Fund and its assets, and you shall not seek satisfaction of any such
obligation from the shareholders or any shareholder of the Fund or any other
series of the Trust, or from any Trustee, officer, employee or agent of the
Trust. You understand that the rights and obligations of each Fund, or series,
under the Trust Instrument are separate and distinct from those of any and all
other series.
12. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
In interpreting the provisions of this Agreement, the definitions contained in
Section 2(a) of the 1940 Act (particularly the definitions of "affiliated
person," "assignment" and "majority of the outstanding voting securities"),
as from time to time amended, shall be applied, subject, however, to such
exemptions as may be granted by the SEC by any rule, regulation or order.
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This Agreement shall be construed in accordance with the laws of the State of
Delaware, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, or in a manner which would cause the Fund to
fail to comply with the requirements of Subchapter M of the Code.
This Agreement shall supersede all prior investment advisory or management
agreements entered into between you and the Trust on behalf of the Fund.
If you are in agreement with the foregoing, please execute the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Trust, whereupon this letter shall become a binding contract
effective as of the date of this Agreement.
Yours very truly,
DODGE & ▇▇▇ FUNDS,
on behalf of DODGE & ▇▇▇ STOCK FUND
By:
President
The foregoing Agreement is hereby accepted as of the date hereof.
DODGE & ▇▇▇
Incorporated
By:
Chairman & Chief Executive Officer
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EX-99.B5
Dodge & ▇▇▇ Balanced Fund
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
May 1, 1998
Dodge & ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INVESTMENT MANAGEMENT AGREEMENT
DODGE & ▇▇▇ BALANCED FUND
Ladies and Gentlemen:
Dodge & ▇▇▇ Funds (the "Trust") has been established as a Delaware business
trust to engage in the business of an investment company. Pursuant to the
Trust's Trust Instrument, as amended from time-to-time (the "Trust
Instrument"), the Board of Trustees has divided the Trust's shares of
beneficial interest, par value $.01 per share, (the "Shares") into separate
series, or funds, including Dodge & ▇▇▇ Balanced Fund (the "Fund"). The Fund
may be abolished and dissolved, and additional series established, from time to
time by action of the Trustees. The Trust, on behalf of the Fund, has selected
you to act as the sole investment manager of the Fund and to provide certain
other services, as more fully set forth below, and you have indicated that you
are willing to act as such investment manager and to perform such services under
the terms and conditions hereinafter set forth. Accordingly, the Trust on behalf
of the Fund agrees with you as follows:
1. DELIVERY OF DOCUMENTS. The Trust engages in the business of
investing and reinvesting the assets of the Fund in the manner and in
accordance with the investment objectives, policies and restrictions specified
in the currently effective Prospectus (the "Prospectus") and Statement of
Additional Information (the "SAI") relating to the Fund included in the
Trust's Registration Statement on Form N-1A, as amended from time to time,
(the "Registration Statement") filed by the Trust under the Investment
Company Act of 1940, as amended, (the "1940 Act") and the Securities Act of
1933, as amended. Copies of the documents referred to in the preceding
sentence have been furnished to you by the Trust. The Trust has also furnished
you with copies properly certified or authenticated of each of the following
additional documents related to the Trust and the Fund:
(a) The Trust Instrument dated February 13, 1998, as amended to date;
(a) By-Laws of the Trust as in effect on the date hereof (the "By-
Laws"); and
(a) Resolutions of the Trustees of the Trust and the shareholders of the
Fund selecting you as investment manager and approving the form of this
Agreement.
The Trust will furnish you from time to time with copies, properly certified
or authenticated, of all amendments of or supplements, if any, to the foregoing,
including the Prospectus, the SAI and the Registration Statement.
2. PORTFOLIO MANAGEMENT SERVICES. As manager of the assets of the Fund,
you shall provide continuing investment management of the assets of the Fund
in accordance with the investment objectives, policies and restrictions set
forth in the Prospectus and SAI; the applicable provisions of the 1940 Act and
the Internal Revenue Code, as amended (the "Code") relating to regulated
investment companies and all rules and regulations thereunder; and all other
applicable federal and state laws and regulations of which you have knowledge;
subject always to policies and instructions adopted by the Trust's Board of
Trustees. In connection therewith, you shall use reasonable efforts to manage
the Fund so that it will qualify as a regulated investment company under
Subchapter M of the Code and regulations issued thereunder. The Fund shall
have the benefit of the investment analysis and research, the review of
current economic conditions and trends and the consideration of long-range
investment policy generally available to your investment advisory clients. In
managing the Fund in accordance with the requirements set forth in this
section 2, you shall be entitled to receive and act upon advice of counsel to
the Trust or counsel to you. You shall also make available to the Trust
promptly upon request all of the Fund's investment records and ledgers as are
necessary to assist the Trust in complying with the requirements of the 1940
Act and other applicable laws. To the extent required by law, you shall
furnish to regulatory authorities having the requisite authority any
information or reports in connection with the services provided pursuant to
this Agreement which may be requested in order to ascertain whether the
operations of the Trust are being conducted in a manner consistent with
applicable laws and regulations.
You shall determine the securities, instruments, investments, currencies,
repurchase agreements and other contracts relating to investments to be
purchased, sold or entered into by the Fund and place orders with broker-
dealers, foreign currency dealers or others pursuant to your determinations and
all in accordance with Fund policies as expressed in the Registration Statement.
You shall determine what portion of the Fund's portfolio shall be invested in
securities and other assets and what portion, if any, should be held uninvested.
You shall furnish to the Trust's Board of Trustees periodic reports on the
investment performance of the Fund and on the performance of your obligations
pursuant to this Agreement, and you shall supply such additional reports and
information as the Trust's officers or Board of Trustees shall reasonably
request.
3. ADMINISTRATIVE SERVICES. In addition to the portfolio management
services specified above in section 2, you shall furnish at your expense for
the use of the Fund such office space and facilities in the United States as
the Fund may require for its reasonable needs, and you (or one or more of your
affiliates designated by you) shall render to the Trust administrative
services on behalf of the Fund necessary for operating as an open-end
investment company and not provided by persons not parties to this Agreement
including,
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but not limited to: preparing reports to and meeting materials for the Trust's
Board of Trustees and overseeing reports and notices to Fund shareholders;
supervising, negotiating contractual arrangements with, to the extent
appropriate, and monitoring the performance of, accounting agents, custodians,
depositories, transfer agents and pricing agents, accountants, attorneys,
printers, underwriters, brokers and dealers, insurers and other persons in any
capacity deemed to be necessary or desirable to Fund operations; preparing and
making filings with the Securities and Exchange Commission (the "SEC") and
other regulatory and self-regulatory organizations, including, but not limited
to, preliminary and definitive proxy materials, post-effective amendments to
the Registration Statement, semi-annual reports on Form N-SAR and notices
pursuant to Rule 24f-2 under the 1940 Act; filing of the Fund's federal, state
and local tax returns; providing assistance with investor and public relations
matters; monitoring the valuation of portfolio securities and the calculation
of net asset value; monitoring the registration of Shares of the Fund under
applicable federal and state securities laws; maintaining or causing to be
maintained for the Fund all books, records and reports and any other
information required under the 1940 Act, to the extent that such books,
records and reports and other information are not maintained by the Fund's
custodian or other agents of the Fund; and otherwise assisting the Trust as it
may reasonably request in the conduct of the Fund's business, subject to the
direction and control of the Trust's Board of Trustees. Nothing in this
Agreement shall be deemed to shift to you or to diminish the obligations of
any agent of the Fund or any other person not a party to this Agreement which
is employed to provide services to the Fund.
4. ALLOCATION OF CHARGES AND EXPENSES. Except as otherwise specifically
provided in this section 4, you shall pay the compensation and expenses of all
Trustees and officers who are affiliated persons of you, and you shall make
available, without expense to the Fund, the services of such of your
directors, officers and employees as may duly be elected officers of the
Trust, subject to their individual consent to serve and to any limitations
imposed by law. You shall provide at your expense the portfolio management
services described in section 2 hereof and the administrative services
described in section 3 hereof. You shall not be required to pay any expenses
of the Fund other than those specifically allocated to you in this section 4.
In particular, but without limiting the generality of the foregoing, you shall
not be responsible, except to the extent of the reasonable compensation of
such of the Fund's Trustees and officers as are directors, officers or
employees of you whose services may be involved, for the following expenses of
the Fund: organization expenses of the Fund (including out-of-pocket expenses,
but not including your overhead or employee costs); fees payable to you and to
any other Fund advisors or consultants; legal expenses; auditing and
accounting expenses; maintenance of books and records which are required to be
maintained by the Fund's custodian or other agents of the Trust; telephone,
telex, facsimile, postage and other communications expenses; taxes and
governmental fees; fees, dues and expenses incurred by the Fund in connection
with membership in investment company trade organizations; fees and expenses
of the Fund's accounting agent, custodians, subcustodians, transfer agents,
dividend disbursing agents and registrars; payment for portfolio pricing or
valuation services to pricing agents, accountants, bankers and other
specialists, if any; expenses of preparing share certificates and, except as
provided below in this section 4, other expenses in connection with the
issuance, offering, distribution, sale, redemption or
3
repurchase of securities issued by the Fund; expenses relating to investor and
public relations; expenses and fees of registering or qualifying Shares of the
Fund for sale; interest charges, bond premiums and other insurance expense;
freight, insurance and other charges in connection with the shipment of the
Fund's portfolio securities; the compensation and all expenses (specifically
including travel expenses relating to Trust business) of Trustees, officers
and employees of the Trust who are not affiliated persons of you; brokerage
commissions or other costs of acquiring or disposing of any portfolio
securities of the Fund; expenses of printing and distributing reports, notices
and dividends to shareholders; expenses of printing and mailing Prospectuses
and SAIs of the Fund and supplements thereto; costs of stationery; any
litigation expenses; indemnification of Trustees and officers of the Trust;
and costs of shareholders' and other meetings. You shall be required to pay
expenses of any activity which is primarily intended to result in sales of
Shares of the Fund if and to the extent that such expenses are generally
required to be borne by a principal underwriter which acts as the distributor
of the Fund's Shares pursuant to an underwriting agreement.
5. MANAGEMENT FEE. For all services to be rendered, payments to be made
and costs to be assumed by you as provided in sections 2, 3 and 4 hereof, the
Trust on behalf of the Fund shall pay you in United States Dollars on the last
day of each month the unpaid balance of a fee equal to an annual rate of 0.50%
of the average daily net assets as defined below of the Fund for such month.
The "average daily net assets" of the Fund shall mean the average of the
values placed on the Fund's net assets on each day on which the net asset
value of the Fund is determined consistent with the provisions of Rule 22c-1
under the 1940 Act or, if the Fund lawfully determines the value of its net
assets as of some other time on each business day, as of such time. The value
of the net assets of the Fund shall always be determined pursuant to the
applicable provisions of the Trust Instrument and the Registration Statement.
If the determination of net asset value does not take place for any particular
day, then for the purposes of this section 5, the value of the net assets of
the Fund as last determined shall be deemed to be the value of its net assets
as of such time as the value of the net assets of the Fund's portfolio may be
lawfully determined on that day. You may waive all or a portion of your fees
provided for hereunder and such waiver shall be treated as a reduction in
purchase price of your services. You shall be contractually bound hereunder by
the terms of any publicly announced waiver of your fee, or any limitation of
the Fund's expenses, as if such waiver or limitation were fully set forth
herein.
6. AVOIDANCE OF INCONSISTENT POSITION; SERVICES NOT EXCLUSIVE. In
connection with purchases or sales of portfolio securities and other
investments for the account of the Fund, neither you nor any of your
directors, officers or employees shall act as a principal or agent or receive
any commission. You or your agent shall arrange for the placing of all orders
for the purchase and sale of portfolio securities and other investments for
the Fund's account with brokers or dealers selected by you in accordance with
Fund policies as expressed in the Registration Statement. If any occasion
should arise in which you give any advice to clients of yours concerning the
Shares of the Fund, you shall act solely as investment counsel for such
clients and not in any way on behalf of the Fund. Your services to the Fund
pursuant to this Agreement are not to be deemed to be exclusive and it is
understood that you may render investment advice, management and services to
others. In acting under this Agreement, you
4
shall be an independent contractor and not an agent of the Trust. Whenever the
Fund and one or more other accounts or investment companies advised by you
have available funds for investment, investments suitable and appropriate for
each shall be allocated in accordance with procedures believed by you to be
equitable to each entity. Similarly, opportunities to sell securities shall be
allocated in a manner believed by you to be equitable. The Fund recognizes
that in some cases this procedure may adversely affect the size of the
position that may be acquired or disposed of for the Fund.
7. SUBLICENSE TO USE THE DODGE & ▇▇▇ TRADEMARK. As exclusive licensee
of the rights to use and sublicense the use of the "Dodge & ▇▇▇" trademark
("Dodge & ▇▇▇ ▇▇▇▇"), you hereby grant the Trust a nonexclusive right and
sublicense to use (i) the "Dodge & ▇▇▇" name and ▇▇▇▇ as part of the Trust's
name (the "Fund Name"), and (ii) the Dodge & ▇▇▇ ▇▇▇▇ in connection with the
Trust's investment products and services, in each case only for so long as
this Agreement, any other investment management agreement between you and the
Trust, or any extension, renewal or amendment hereof or thereof remains in
effect, and only for so long as you are a licensee of the Dodge & ▇▇▇ ▇▇▇▇,
provided however, that you agree to use your best efforts to maintain your
license to use and sublicense the Dodge & ▇▇▇ ▇▇▇▇. The Trust agrees that it
shall have no right to sublicense or assign rights to use the Dodge & ▇▇▇
▇▇▇▇, shall acquire no interest in the Dodge & ▇▇▇ ▇▇▇▇ other than the rights
granted herein, that all of the Trust's uses of the Dodge & ▇▇▇ ▇▇▇▇ shall
inure to the benefit of Dodge & ▇▇▇ as owner and licensor of the Dodge & ▇▇▇
▇▇▇▇ (the "Trademark Owner"), and that the Trust shall not challenge the
validity of the Dodge & ▇▇▇ ▇▇▇▇ or the Trademark Owner's ownership thereof.
The Trust further agrees that all services and products it offers in
connection with the Dodge & ▇▇▇ ▇▇▇▇ shall meet commercially reasonable
standards of quality, as may be determined by you or the Trademark Owner from
time to time, provided that you acknowledge that the services and products the
Trust rendered during the one-year period preceding the date of this Agreement
are acceptable. At your reasonable request, the Trust shall cooperate with you
and the Trademark Owner and shall execute and deliver any and all documents
necessary to maintain and protect (including but not limited to in connection
with any trademark infringement action) the Dodge & ▇▇▇ ▇▇▇▇ and/or enter the
Trust as a registered user thereof. At such time as this Agreement or any
other investment management agreement shall no longer be in effect between you
(or your successor) and the Trust, or you no longer are a licensee of the
Dodge & ▇▇▇ ▇▇▇▇, the Trust shall (to the extent that, and as soon as, it
lawfully can) cease to use the Fund Name or any other name indicating that it
is advised by, managed by or otherwise connected with you (or any organization
which shall have succeeded to your business as investment manager) or the
Trademark Owner. In no event shall the Trust use the Dodge & ▇▇▇ ▇▇▇▇ or any
other name or ▇▇▇▇ confusingly similar thereto (including, but not limited to,
any name or ▇▇▇▇ that includes the name "Dodge & ▇▇▇") if this Agreement or
any other investment advisory agreement between you (or your successor) and
the Fund is terminated.
8. LIMITATION OF LIABILITY OF MANAGER. As an inducement to your
undertaking to render services pursuant to this Agreement, the Trust agrees
that you shall not be liable under this Agreement for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, provided that nothing in this
5
Agreement shall be deemed to protect or purport to protect you against any
liability to the Trust, the Fund or its shareholders to which you would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your duties, or by reason of your reckless
disregard of your obligations and duties hereunder. Any person, even though
also employed by you, who may be or become an employee of and paid by the Fund
shall be deemed, when acting within the scope of his or her employment by the
Fund, to be acting in such employment solely for the Fund and not as your
employee or agent.
9. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
remain in force until December 31, 1998, and continue in force from year to
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities of the Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the 1940 Act
and the rules and regulations thereunder and any applicable SEC exemptive
order therefrom. This Agreement may be terminated with respect to the Fund at
any time, without the payment of any penalty, by the vote of a majority of the
outstanding voting securities of the Fund or by the Trust's Board of Trustees
on 60 days' written notice to you, or by you on 60 days' written notice to the
Trust. This Agreement shall terminate automatically in the event of its
assignment.
10. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall
be effective until approved in a manner consistent with the 1940 Act and rules
and regulations thereunder and any applicable SEC exemptive order therefrom.
11. LIMITATION OF LIABILITY FOR CLAIMS. The Trust Instrument, a copy of
which, together with all amendments thereto, is on file in the Office of the
Secretary of the State of Delaware, provides that the name "Dodge & ▇▇▇
Funds" refers to the Trustees under the Trust Instrument collectively as
Trustees and not as individuals or personally, and that no shareholder of the
Fund, or Trustee, officer, employee or agent of the Trust, shall be subject to
claims against or obligations of the Trust or of the Fund to any extent
whatsoever, but that the Trust estate only shall be liable. You are hereby
expressly put on notice of the limitation of liability as set forth in the
Trust Instrument and you agree that the obligations assumed by the Trust on
behalf of the Fund pursuant to this Agreement shall be limited in all cases to
the Fund and its assets, and you shall not seek satisfaction of any such
obligation from the shareholders or any shareholder of the Fund or any other
series of the Trust, or from any Trustee, officer, employee or agent of the
Trust. You understand that the rights and obligations of each Fund, or series,
under the Trust Instrument are separate and distinct from those of any and all
other series.
6
12. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
In interpreting the provisions of this Agreement, the definitions contained in
Section 2(a) of the 1940 Act (particularly the definitions of "affiliated
person," "assignment" and "majority of the outstanding voting securities"),
as from time to time amended, shall be applied, subject, however, to such
exemptions as may be granted by the SEC by any rule, regulation or order.
This Agreement shall be construed in accordance with the laws of the State of
Delaware, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, or in a manner which would cause the Fund to
fail to comply with the requirements of Subchapter M of the Code.
This Agreement shall supersede all prior investment advisory or management
agreements entered into between you and the Trust on behalf of the Fund.
If you are in agreement with the foregoing, please execute the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Trust, whereupon this letter shall become a binding contract
effective as of the date of this Agreement.
Yours very truly,
DODGE & ▇▇▇ FUNDS,
on behalf of DODGE & ▇▇▇ BALANCED FUND
By:
President
The foregoing Agreement is hereby accepted as of the date hereof.
DODGE & ▇▇▇
Incorporated
By:
Chairman & Chief Executive Officer
7
EX-99.B5
Dodge & ▇▇▇ Income Fund
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
May 1, 1998
Dodge & ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
INVESTMENT MANAGEMENT AGREEMENT
DODGE & ▇▇▇ INCOME FUND
Ladies and Gentlemen:
Dodge & ▇▇▇ Funds (the "Trust") has been established as a Delaware business
trust to engage in the business of an investment company. Pursuant to the
Trust's Trust Instrument, as amended from time-to-time (the "Trust Instrument"),
the Board of Trustees has divided the Trust's shares of beneficial interest, par
value $.01 per share, (the "Shares") into separate series, or funds, including
Dodge & ▇▇▇ Income Fund (the "Fund"). The Fund may be abolished and dissolved,
and additional series established, from time to time by action of the Trustees.
The Trust, on behalf of the Fund, has selected you to act as the sole investment
manager of the Fund and to provide certain other services, as more fully set
forth below, and you have indicated that you are willing to act as such
investment manager and to perform such services under the terms and conditions
hereinafter set forth. Accordingly, the Trust on behalf of the Fund agrees with
you as follows:
1. DELIVERY OF DOCUMENTS. The Trust engages in the business of
investing and reinvesting the assets of the Fund in the manner and in
accordance with the investment objectives, policies and restrictions specified
in the currently effective Prospectus (the "Prospectus") and Statement of
Additional Information (the "SAI") relating to the Fund included in the
Trust's Registration Statement on Form N-1A, as amended from time to time,
(the "Registration Statement") filed by the Trust under the Investment
Company Act of 1940, as amended, (the "1940 Act") and the Securities Act of
1933, as amended. Copies of the documents referred to in the preceding
sentence have been furnished to you by the Trust. The Trust has also furnished
you with copies properly certified or authenticated of each of the following
additional documents related to the Trust and the Fund:
(a) The Trust Instrument dated February 13, 1998, as amended to date;
(a) By-Laws of the Trust as in effect on the date hereof (the "By-
Laws"); and
(a) Resolutions of the Trustees of the Trust and the shareholders of the
Fund selecting you as investment manager and approving the form of this
Agreement.
The Trust will furnish you from time to time with copies, properly certified
or authenticated, of all amendments of or supplements, if any, to the foregoing,
including the Prospectus, the SAI and the Registration Statement.
2. PORTFOLIO MANAGEMENT SERVICES. As manager of the assets of the Fund,
you shall provide continuing investment management of the assets of the Fund
in accordance with the investment objectives, policies and restrictions set
forth in the Prospectus and SAI; the applicable provisions of the 1940 Act and
the Internal Revenue Code, as amended (the "Code") relating to regulated
investment companies and all rules and regulations thereunder; and all other
applicable federal and state laws and regulations of which you have knowledge;
subject always to policies and instructions adopted by the Trust's Board of
Trustees. In connection therewith, you shall use reasonable efforts to manage
the Fund so that it will qualify as a regulated investment company under
Subchapter M of the Code and regulations issued thereunder. The Fund shall
have the benefit of the investment analysis and research, the review of
current economic conditions and trends and the consideration of long-range
investment policy generally available to your investment advisory clients. In
managing the Fund in accordance with the requirements set forth in this
section 2, you shall be entitled to receive and act upon advice of counsel to
the Trust or counsel to you. You shall also make available to the Trust
promptly upon request all of the Fund's investment records and ledgers as are
necessary to assist the Trust in complying with the requirements of the 1940
Act and other applicable laws. To the extent required by law, you shall
furnish to regulatory authorities having the requisite authority any
information or reports in connection with the services provided pursuant to
this Agreement which may be requested in order to ascertain whether the
operations of the Trust are being conducted in a manner consistent with
applicable laws and regulations.
You shall determine the securities, instruments, investments, currencies,
repurchase agreements and other contracts relating to investments to be
purchased, sold or entered into by the Fund and place orders with broker-
dealers, foreign currency dealers or others pursuant to your determinations and
all in accordance with Fund policies as expressed in the Registration Statement.
You shall determine what portion of the Fund's portfolio shall be invested in
securities and other assets and what portion, if any, should be held uninvested.
You shall furnish to the Trust's Board of Trustees periodic reports on the
investment performance of the Fund and on the performance of your obligations
pursuant to this Agreement, and you shall supply such additional reports and
information as the Trust's officers or Board of Trustees shall reasonably
request.
3. ADMINISTRATIVE SERVICES. In addition to the portfolio management
services specified above in section 2, you shall furnish at your expense for
the use of the Fund such office space and facilities in the United States as
the Fund may require for its reasonable needs, and you (or one or more of your
affiliates designated by you) shall render to the Trust administrative
services on behalf of the Fund necessary for operating as an open-end
investment company and not provided by persons not parties to this Agreement
including,
2
but not limited to: preparing reports to and meeting materials for the Trust's
Board of Trustees and overseeing reports and notices to Fund shareholders;
supervising, negotiating contractual arrangements with, to the extent
appropriate, and monitoring the performance of, accounting agents, custodians,
depositories, transfer agents and pricing agents, accountants, attorneys,
printers, underwriters, brokers and dealers, insurers and other persons in any
capacity deemed to be necessary or desirable to Fund operations; preparing and
making filings with the Securities and Exchange Commission (the "SEC") and
other regulatory and self-regulatory organizations, including, but not limited
to, preliminary and definitive proxy materials, post-effective amendments to
the Registration Statement, semi-annual reports on Form N-SAR and notices
pursuant to Rule 24f-2 under the 1940 Act; filing of the Fund's federal, state
and local tax returns; providing assistance with investor and public relations
matters; monitoring the valuation of portfolio securities and the calculation
of net asset value; monitoring the registration of Shares of the Fund under
applicable federal and state securities laws; maintaining or causing to be
maintained for the Fund all books, records and reports and any other
information required under the 1940 Act, to the extent that such books,
records and reports and other information are not maintained by the Fund's
custodian or other agents of the Fund; and otherwise assisting the Trust as it
may reasonably request in the conduct of the Fund's business, subject to the
direction and control of the Trust's Board of Trustees. Nothing in this
Agreement shall be deemed to shift to you or to diminish the obligations of
any agent of the Fund or any other person not a party to this Agreement which
is employed to provide services to the Fund.
4. ALLOCATION OF CHARGES AND EXPENSES. Except as otherwise specifically
provided in this section 4, you shall pay the compensation and expenses of all
Trustees and officers who are affiliated persons of you, and you shall make
available, without expense to the Fund, the services of such of your
directors, officers and employees as may duly be elected officers of the
Trust, subject to their individual consent to serve and to any limitations
imposed by law. You shall provide at your expense the portfolio management
services described in section 2 hereof and the administrative services
described in section 3 hereof. You shall not be required to pay any expenses
of the Fund other than those specifically allocated to you in this section 4.
In particular, but without limiting the generality of the foregoing, you shall
not be responsible, except to the extent of the reasonable compensation of
such of the Fund's Trustees and officers as are directors, officers or
employees of you whose services may be involved, for the following expenses of
the Fund: organization expenses of the Fund (including out-of-pocket expenses,
but not including your overhead or employee costs); fees payable to you and to
any other Fund advisors or consultants; legal expenses; auditing and
accounting expenses; maintenance of books and records which are required to be
maintained by the Fund's custodian or other agents of the Trust; telephone,
telex, facsimile, postage and other communications expenses; taxes and
governmental fees; fees, dues and expenses incurred by the Fund in connection
with membership in investment company trade organizations; fees and expenses
of the Fund's accounting agent, custodians, subcustodians, transfer agents,
dividend disbursing agents and registrars; payment for portfolio pricing or
valuation services to pricing agents, accountants, bankers and other
specialists, if any; expenses of preparing share certificates and, except as
provided below in this section 4, other expenses in connection with the
issuance, offering, distribution, sale, redemption or
3
repurchase of securities issued by the Fund; expenses relating to investor and
public relations; expenses and fees of registering or qualifying Shares of the
Fund for sale; interest charges, bond premiums and other insurance expense;
freight, insurance and other charges in connection with the shipment of the
Fund's portfolio securities; the compensation and all expenses (specifically
including travel expenses relating to Trust business) of Trustees, officers
and employees of the Trust who are not affiliated persons of you; brokerage
commissions or other costs of acquiring or disposing of any portfolio
securities of the Fund; expenses of printing and distributing reports, notices
and dividends to shareholders; expenses of printing and mailing Prospectuses
and SAIs of the Fund and supplements thereto; costs of stationery; any
litigation expenses; indemnification of Trustees and officers of the Trust;
and costs of shareholders' and other meetings. You shall be required to pay
expenses of any activity which is primarily intended to result in sales of
Shares of the Fund if and to the extent that such expenses are generally
required to be borne by a principal underwriter which acts as the distributor
of the Fund's Shares pursuant to an underwriting agreement.
5. MANAGEMENT FEE. For all services to be rendered, payments to be made
and costs to be assumed by you as provided in sections 2, 3 and 4 hereof, the
Trust on behalf of the Fund shall pay you in United States Dollars on the last
day of each month the unpaid balance of a fee equal to an annual rate of 0.50%
of the average daily net assets as defined below of the Fund up to $100
million and 0.40% of the average daily net assets of the Fund in excess of
$100 million for such month. You agree to waive your rights to compensation
under this Agreement, for any calendar year, to the extent that the
compensation plus all other expenses of the Fund exceeds 1.00% of the Fund's
average daily net assets. The "average daily net assets" of the Fund shall
mean the average of the values placed on the Fund's net assets on each day on
which the net asset value of the Fund is determined consistent with the
provisions of Rule 22c-1 under the 1940 Act or, if the Fund lawfully
determines the value of its net assets as of some other time on each business
day, as of such time. The value of the net assets of the Fund shall always be
determined pursuant to the applicable provisions of the Trust Instrument and
the Registration Statement. If the determination of net asset value does not
take place for any particular day, then for the purposes of this section 5,
the value of the net assets of the Fund as last determined shall be deemed to
be the value of its net assets as of such time as the value of the net assets
of the Fund's portfolio may be lawfully determined on that day. You may waive
all or a portion of your fees provided for hereunder and such waiver shall be
treated as a reduction in purchase price of your services. You shall be
contractually bound hereunder by the terms of any publicly announced waiver of
your fee, or any limitation of the Fund's expenses, as if such waiver or
limitation were fully set forth herein.
6. AVOIDANCE OF INCONSISTENT POSITION; SERVICES NOT EXCLUSIVE. In
connection with purchases or sales of portfolio securities and other
investments for the account of the Fund, neither you nor any of your
directors, officers or employees shall act as a principal or agent or receive
any commission. You or your agent shall arrange for the placing of all orders
for the purchase and sale of portfolio securities and other investments for
the Fund's account with brokers or dealers selected by you in accordance with
Fund policies as expressed in the Registration Statement. If any occasion
should arise in which you give any advice to clients
4
of yours concerning the Shares of the Fund, you shall act solely as investment
counsel for such clients and not in any way on behalf of the Fund. Your
services to the Fund pursuant to this Agreement are not to be deemed to be
exclusive and it is understood that you may render investment advice,
management and services to others. In acting under this Agreement, you shall
be an independent contractor and not an agent of the Trust. Whenever the Fund
and one or more other accounts or investment companies advised by you have
available funds for investment, investments suitable and appropriate for each
shall be allocated in accordance with procedures believed by you to be
equitable to each entity. Similarly, opportunities to sell securities shall be
allocated in a manner believed by you to be equitable. The Fund recognizes
that in some cases this procedure may adversely affect the size of the
position that may be acquired or disposed of for the Fund.
7. SUBLICENSE TO USE THE DODGE & ▇▇▇ TRADEMARK. As exclusive licensee
of the rights to use and sublicense the use of the "Dodge & ▇▇▇" trademark
("Dodge & ▇▇▇ ▇▇▇▇"), you hereby grant the Trust a nonexclusive right and
sublicense to use (i) the "Dodge & ▇▇▇" name and ▇▇▇▇ as part of the Trust's
name (the "Fund Name"), and (ii) the Dodge & ▇▇▇ ▇▇▇▇ in connection with the
Trust's investment products and services, in each case only for so long as
this Agreement, any other investment management agreement between you and the
Trust, or any extension, renewal or amendment hereof or thereof remains in
effect, and only for so long as you are a licensee of the Dodge & ▇▇▇ ▇▇▇▇,
provided however, that you agree to use your best efforts to maintain your
license to use and sublicense the Dodge & ▇▇▇ ▇▇▇▇. The Trust agrees that it
shall have no right to sublicense or assign rights to use the Dodge & ▇▇▇
▇▇▇▇, shall acquire no interest in the Dodge & ▇▇▇ ▇▇▇▇ other than the rights
granted herein, that all of the Trust's uses of the Dodge & ▇▇▇ ▇▇▇▇ shall
inure to the benefit of Dodge & ▇▇▇ as owner and licensor of the Dodge & ▇▇▇
▇▇▇▇ (the "Trademark Owner"), and that the Trust shall not challenge the
validity of the Dodge & ▇▇▇ ▇▇▇▇ or the Trademark Owner's ownership thereof.
The Trust further agrees that all services and products it offers in
connection with the Dodge & ▇▇▇ ▇▇▇▇ shall meet commercially reasonable
standards of quality, as may be determined by you or the Trademark Owner from
time to time, provided that you acknowledge that the services and products the
Trust rendered during the one-year period preceding the date of this Agreement
are acceptable. At your reasonable request, the Trust shall cooperate with you
and the Trademark Owner and shall execute and deliver any and all documents
necessary to maintain and protect (including but not limited to in connection
with any trademark infringement action) the Dodge & ▇▇▇ ▇▇▇▇ and/or enter the
Trust as a registered user thereof. At such time as this Agreement or any
other investment management agreement shall no longer be in effect between you
(or your successor) and the Trust, or you no longer are a licensee of the
Dodge & ▇▇▇ ▇▇▇▇, the Trust shall (to the extent that, and as soon as, it
lawfully can) cease to use the Fund Name or any other name indicating that it
is advised by, managed by or otherwise connected with you (or any organization
which shall have succeeded to your business as investment manager) or the
Trademark Owner. In no event shall the Trust use the Dodge & ▇▇▇ ▇▇▇▇ or any
other name or ▇▇▇▇ confusingly similar thereto (including, but not limited to,
any name or ▇▇▇▇ that includes the name "Dodge & ▇▇▇") if this Agreement or
any other investment advisory agreement between you (or your successor) and
the Fund is terminated.
5
8. LIMITATION OF LIABILITY OF MANAGER. As an inducement to your
undertaking to render services pursuant to this Agreement, the Trust agrees
that you shall not be liable under this Agreement for any error of judgment or
mistake of law or for any loss suffered by the Fund in connection with the
matters to which this Agreement relates, provided that nothing in this
Agreement shall be deemed to protect or purport to protect you against any
liability to the Trust, the Fund or its shareholders to which you would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of your duties, or by reason of your reckless
disregard of your obligations and duties hereunder. Any person, even though
also employed by you, who may be or become an employee of and paid by the Fund
shall be deemed, when acting within the scope of his or her employment by the
Fund, to be acting in such employment solely for the Fund and not as your
employee or agent.
9. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
remain in force until December 31, 1998, and continue in force from year to
year thereafter, but only so long as such continuance is specifically approved
at least annually (a) by the vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of any party to this
Agreement, cast in person at a meeting called for the purpose of voting on
such approval, and (b) by the Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities of the Fund. The aforesaid
requirement that continuance of this Agreement be "specifically approved at
least annually" shall be construed in a manner consistent with the 1940 Act
and the rules and regulations thereunder and any applicable SEC exemptive
order therefrom. This Agreement may be terminated with respect to the Fund at
any time, without the payment of any penalty, by the vote of a majority of the
outstanding voting securities of the Fund or by the Trust's Board of Trustees
on 60 days' written notice to you, or by you on 60 days' written notice to the
Trust. This Agreement shall terminate automatically in the event of its
assignment.
10. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought, and no amendment of this Agreement shall
be effective until approved in a manner consistent with the 1940 Act and rules
and regulations thereunder and any applicable SEC exemptive order therefrom.
11. LIMITATION OF LIABILITY FOR CLAIMS. The Trust Instrument, a copy of
which, together with all amendments thereto, is on file in the Office of the
Secretary of the State of Delaware, provides that the name "Dodge & ▇▇▇
Funds" refers to the Trustees under the Trust Instrument collectively as
Trustees and not as individuals or personally, and that no shareholder of the
Fund, or Trustee, officer, employee or agent of the Trust, shall be subject to
claims against or obligations of the Trust or of the Fund to any extent
whatsoever, but that the Trust estate only shall be liable. You are hereby
expressly put on notice of the limitation of liability as set forth in the
Trust Instrument and you agree that the obligations assumed by the Trust on
behalf of the Fund pursuant to this Agreement shall be limited in all cases to
the Fund and its assets, and you shall not seek satisfaction of any such
obligation from the shareholders or any shareholder of the Fund or any other
series of the Trust, or from any
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Trustee, officer, employee or agent of the Trust. You understand that the
rights and obligations of each Fund, or series, under the Trust Instrument are
separate and distinct from those of any and all other series.
12. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
In interpreting the provisions of this Agreement, the definitions contained in
Section 2(a) of the 1940 Act (particularly the definitions of "affiliated
person," "assignment" and "majority of the outstanding voting securities"),
as from time to time amended, shall be applied, subject, however, to such
exemptions as may be granted by the SEC by any rule, regulation or order.
This Agreement shall be construed in accordance with the laws of the State of
Delaware, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, or in a manner which would cause the Fund to
fail to comply with the requirements of Subchapter M of the Code.
This Agreement shall supersede all prior investment advisory or management
agreements entered into between you and the Trust on behalf of the Fund.
If you are in agreement with the foregoing, please execute the form of
acceptance on the accompanying counterpart of this letter and return such
counterpart to the Trust, whereupon this letter shall become a binding contract
effective as of the date of this Agreement.
Yours very truly,
DODGE & ▇▇▇ FUNDS,
on behalf of DODGE & ▇▇▇ INCOME FUND
By:
President
The foregoing Agreement is hereby accepted as of the date hereof.
DODGE & ▇▇▇
Incorporated
By:
Chairman & Chief Executive Officer
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