AMENDED AND RESTATED
INVESTMENT ADVISORY AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT made as of the 1ST day of January,
2005, by and between ▇▇▇▇▇▇▇▇▇▇▇ EQUITY FUND, INC. (formerly known as
▇▇▇▇▇▇▇▇▇▇▇ Total Return Fund, Inc.)(hereinafter the "Fund"), and
OPPENHEIMERFUNDS, INC. (hereinafter the "Manager"):
WHEREAS, the Fund is an open-end, diversified investment company
registered as such with the Securities and Exchange Commission (the
"Commission") pursuant to the Investment Company Act of 1940, as amended (the
"Investment Company Act") and the Manager is a registered investment adviser;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, it is agreed by and between the parties, as follows:
1. GENERAL PROVISION.
The Fund hereby employs the Manager and the Manager hereby undertakes to
act as the investment adviser of the Fund and to perform for the Fund such other
duties and functions as are hereinafter set forth. The Manager shall, in all
matters, give to the Fund and its Board of Directors the benefit of its best
judgment, effort, advice and recommendations and shall, at all times conform to,
and use its best efforts to enable the Fund to conform to (i) the provisions of
the Investment Company Act and any rules and regulations thereunder; (ii) any
other applicable provisions of state or federal law; (iii) the provisions of the
Certificate of Incorporation and By-Laws of the Fund as amended from time to
time; (iv) policies and determinations of the Board of Directors of the Fund;
(v) the fundamental policies and investment restrictions of the Fund as
reflected in its registration statement under the Investment Company Act and the
Fund's By-Laws, or as such policies may, from time to time, be amended by the
Fund's shareholders; and (vi) the Prospectus of the Fund in effect from time to
time. The appropriate officers and employees of the Manager shall be available
upon reasonable notice for consultation with any of the Directors and officers
of the Fund with respect to any matters dealing with the business and affairs of
the Fund including the valuation of any of the Fund's portfolio securities which
are either not registered for public sale or not being traded on any securities
market.
2. INVESTMENT MANAGEMENT.
(a) The Manager shall, subject to the direction and control by the Fund's
Board of Directors (i) regularly provide investment advice and recommendations
to the Fund with respect to its investments, investment policies and the
purchase and sale of securities; (ii) supervise continuously the investment
program of the Fund and the composition of its portfolio and determine what
securities shall be purchased or sold by the Fund; and (iii) arrange, subject to
the provisions of paragraph "6" hereof, for the purchase of securities and other
investments for the Fund and the sale of securities and other investments held
in the portfolio of the Fund. The Manager shall also conduct investigations and
research in the securities field and furnish to the Fund's Board of Directors
statistical and other factual information and reports on industries, businesses
or corporations, to assist the Manager and the Fund's Board of Directors in
furthering the investment policies of the Fund; and the Manager shall compile,
for its use and that of the Fund, and furnish to the Fund's Board of Directors,
information and advice on economic and business trends, and render such other
complete investment management services as may be necessary or appropriate to
effectuate the investment of the resources of the Fund through the acquisition,
holding and disposition of portfolio securities.
(b) Provided that the Fund shall not be required to pay any compensation
other than as provided by the terms of this Agreement and subject to the
provisions of paragraph 6 hereof, the Manager may obtain investment information,
research or assistance from any other person, firm or corporation to supplement,
update or otherwise improve its investment management services.
(c) So long as it shall have acted with due care and in good faith, the
Manager shall not be liable for any loss sustained by reason of any investment,
the adoption of any investment policy, or the purchase, sale or retention of any
security irrespective of whether the determinations of the Manager relative
thereto shall have been based, wholly or partly, upon the investigation or
research of any other individual, firm or corporation believed by it to be
reliable. Nothing herein contained shall, however, be construed to protect the
Manager against any liability to the Fund or its shareholders by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and duties
under this Agreement.
(d) Nothing in this Agreement shall prevent the manager or any officer
thereof from acting as investment adviser or performing management services for
any other person, firm or corporation and shall not in any way limit or restrict
the Manager or any of its directors, officers, shareholders or employees from
buying, selling or trading any securities for its or their own account or for
the account of others for whom it or they may be acting, provided that such
activities will not adversely affect or otherwise impair the performance by the
Manager of its duties and obligations under this Agreement, nor adversely affect
the Fund.
3. OTHER DUTIES OF THE MANAGER.
The Manager shall, at its own expense, provide and supervise the
activities of all executive, administrative and clerical personnel as shall be
required to provide effective corporate administration for the Fund, including
the compilation and maintenance of such records with respect to its operations
as may reasonably be required; the preparation and filing of such reports with
respect thereto as shall be required by the Commission, and the laws of any
state, territory or possession of the United States or any foreign country;
composition of periodic reports with respect to its operations for the
shareholders of the Fund; composition of proxy materials for meetings of the
Fund's shareholders; and the composition of such registration statements as may
be required by federal securities laws and the laws of any state, territory or
possession of the United States or any foreign country for continuous public
sale of shares of the Fund. The Manager shall, at its own cost and expense,
provide such officers for the Fund as the Fund's Board may request and shall
also provide the Fund's Directors, at their request, with adequate office space,
and normal office equipment and secretarial assistance as may be necessary for
them to perform their functions as such, and the Manager shall, at its own cost
and expense, calculate the daily net asset value of the Fund's shares and
maintain the Fund's general accounting books and records. The cost and expenses
of the Manager set forth in this paragraph 3 do not include the transfer agent
and other costs and expenses set forth in paragraph 4 following.
4. ALLOCATION OF EXPENSES TO THE FUND.
All other costs and expenses not expressly assumed by the Manager under
this Agreement, or to be paid by the General Distributor of the shares of the
Fund, shall be paid by the Fund, including but not limited to (i) interest and
taxes; (ii) brokerage commissions; (iii) insurance premiums on fidelity and
other coverage requisite to its operations; (iv) compensation and expenses of
its Directors except as qualified further in this paragraph 4; (v) legal and
audit expenses; (vi) custodian and transfer agent fees and expenses; (vii)
expenses incident to the redemption of its shares; (viii) expenses incident to
the issuance of its shares against payment therefor by or on behalf of the
subscribers thereto; (ix) fees and expenses, other than as hereinabove provided,
incident to the registration of the Fund's shares for public sale under federal
securities laws or the laws of any state, territory or possession of the United
States or any foreign country; (x) expenses of printing and mailing reports and
notices and proxy material to shareholders of the Fund; (xi) except as noted in
paragraph 3 hereof, all other expenses incidental to holding meetings of the
Fund's shareholders; and (xii) such extraordinary non-recurring expenses as may
arise, including litigation, affecting the Fund and the legal obligation or
right which the Fund may have to indemnify its officers and Directors with
respect thereto unless the Fund has the right to recover said indemnity payments
from the Manager. Any officers or employees of the Manager or any entity
controlling, controlled by or under common control with the Manager who may also
serve as officers, Directors or employees of the Fund shall not receive any
compensation by the Fund for their services.
5. COMPENSATION OF THE MANAGER.
The Fund agrees to pay the Manager and the Manager agrees to accept as
full compensation for the performance of all functions and duties on its part to
be performed pursuant to the provisions hereof, a fee computed on the net asset
value of the Fund as of the close of each business day and payable monthly at
the following annual rates:
.75% of the first $100 million of net assets; .70% of the next
$100 million; .65% of the next $100 million; .60% of the next
$100 million; .55% of the next $100 million; .50% of net assets
in excess of $500 million.
6. PORTFOLIO TRANSACTIONS AND BROKERAGE.
(a) The Manager will render all services for the Fund in connection with
placing orders with brokers and dealers for the purchase, sale or trade of
securities for the Fund's portfolio.
(b) The Manager is authorized, in arranging the purchase and sale of the
Fund's portfolio securities, to employ or deal with such members of securities
exchanges, brokers or dealers (hereinafter "broker-dealers"), including
"affiliated" broker-dealers (as that term is defined in the Investment Company
Act), as may, in its best judgment, implement the policy of the Fund to obtain,
at reasonable expense, the "best execution" (prompt and reliable execution at
the most favorable securities price obtainable) of the Fund's portfolio
transactions as well as to obtain, consistent with provisions of subparagraph
(c) of this paragraph 6, the benefit of such investment information or research
as will be of significant assistance to the performance by the Manager of its
investment management functions.
(c) The Manager shall select broker-dealers to effect the Fund's portfolio
transactions on the basis of its estimate of their ability to obtain best
execution of particular and related portfolio transactions. The abilities of a
broker-dealer to obtain best execution of particular portfolio transaction(s)
will be judged by the Manager on the basis of all relevant factors and
considerations including, insofar as feasible, the execution capabilities
required by the transaction or transactions; the ability and willingness of the
broker-dealer to facilitate the Fund's portfolio transactions by, participating
therein for its own account; the importance to the Fund of speed, efficiency or
confidentiality; the broker-dealer's apparent familiarity with sources from or
to whom particular securities might be purchased or sold; as well as any other
matters relevant to the selection of a broker-dealer for particular and related
transactions of the Fund.
(d) The Manager shall have discretion, in the interests of the Fund, to
allocate brokerage on the Fund's portfolio transactions to broker-dealers, other
than an affiliated broker-dealer, qualified to obtain best execution of such
transactions and who provide "brokerage and/or research services" (as such
services are defined in Section 28 (e) (3) of the Securities Exchange Act of
1934) for the Fund and/or other accounts for which the Manager exercises
"investment discretion" (as that term is defined in Section 3 (a) (35) of the
Securities Exchange Act of 1934) and to cause the Fund to pay such
broker-dealers a commission for effecting a portfolio transaction for the Fund
that is in excess of the amount of commission another broker-dealer adequately
qualified to effect such transaction would have charged for effecting that
transaction, if the Manager determines, in good faith, that such commission is
reasonable in relation to the value of the brokerage and/or research services
provided by such broker-dealer, viewed in terms of either that particular
transaction or the Manager's overall responsibilities with respect to the
accounts as to which it exercises investment discretion. In reaching such
determination, the Manager will not be required to place or attempt to place a
specific dollar value on the brokerage and/or research services provided or
being provided by such broker-dealer. In demonstrating that such determinations
were made in good faith, the Manager shall be prepared to show that all
commissions were allocated for purposes contemplated by this Agreement and that
the total commissions paid by the Fund over a representative period selected by
the Fund's Directors were reasonable in relation to the benefits to the Fund.
(e) The Manager shall have no duty or obligation to seek advance
competitive bidding for the most favorable commission rate applicable to any
particular portfolio transactions or to select any broker-dealer on the basis of
its purported or "posted" commission rate but will, to the best of its ability,
endeavor to be aware of the current level of the charges of eligible
broker-dealers and to minimize the expense incurred by, the Fund for effecting
its portfolio transactions to the extent consistent with the interests and
policies of the Fund as established by the determinations of its Board of
Directors and the provisions of this paragraph 6.
(f) The Fund recognizes that an affiliated broker (i) may act as one of
the Fund's regular brokers so long as it is lawful for it so to act; (ii) may be
a major recipient of brokerage commissions paid by the Fund, and (iii) may
effect portfolio transactions for the Fund only if the commissions, fees or
other remuneration received or to be received by it are determined in accordance
with procedures contemplated in any rule, regulation or order adopted under the
Investment Company Act for determining the permissible level of such
commissions.
7. USE OF NAME "▇▇▇▇▇▇▇▇▇▇▇".
The Manager hereby grants to the Fund a royalty-free, non-exclusive
license to use the name "▇▇▇▇▇▇▇▇▇▇▇" in the name of the Fund for the duration
of this Agreement and any extensions or renewals thereof. To the extent
necessary to protect the Manager's rights to the name "▇▇▇▇▇▇▇▇▇▇▇" under
applicable law, such license shall allow the Manager to inspect and, subject to
control by the Fund's Board, control the nature and quality of services offered
by the Fund under such name. Such license may, upon termination of this
Agreement, be terminated by the Manager, in which event the Fund shall promptly
take whatever action may be necessary to change its name and discontinue any
further use of the name "▇▇▇▇▇▇▇▇▇▇▇" in the name of the Fund or otherwise. The
name "▇▇▇▇▇▇▇▇▇▇▇" may be used by the Manager in connection with any of its
activities, or licensed by the Manager to any other party.
8. DURATION.
This Agreement will take effect on the date first set forth above and
shall continue in effect from year to year, so long as such continuance shall be
approved at least annually by the Fund's Board of Directors, including the vote
of a majority of the Directors of the Fund who are not parties to this Agreement
or interested persons of any such party, cast in person at a meeting called for
the purpose of voting on such approval, or by the holders of a majority of the
outstanding voting securities of the Fund and by such a vote of the Fund's Board
of Directors.
9. TERMINATION.
This Agreement may be terminated (i) by the Manager at any time without
penalty by giving sixty days' written notice (which notice may be waived by the
Fund); or (ii) by the Fund at any time without penalty upon sixty days' written
notice to the Manager (which notice may be waived by the Manager), provided that
such termination by the Fund shall be directed or approved by the Board of
Directors of the Fund or by the vote of the holders of a majority of the
outstanding voting securities of the Fund.
10. ASSIGNMENT OR AMENDMENT.
This Agreement may not be amended or the rights of the Manager thereunder
sold, transferred, pledged or otherwise in any manner encumbered without the
affirmative vote or written consent of the holders of the majority of the
outstanding voting securities of the Fund; this Agreement shall automatically
and immediately terminate in the event of its assignment.
11. DEFINITIONS.
The terms and provisions of this Agreement shall be interpreted and
defined in a manner consistent with the provisions and definitions of the
Investment Company Act and other applicable laws.
▇▇▇▇▇▇▇▇▇▇▇ EQUITY, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President & Secretary
OPPENHEIMERFUNDS, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman, President & Chief Executive Officer