EXHIBIT (d)
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, made as of this 3rd day of August, 2004, by and between
The ▇▇▇▇▇ Growth Fund, Inc., a Minnesota corporation (the "Fund") and ▇▇▇▇▇
Associates, Inc., a Minnesota corporation (the "Adviser").
1. INVESTMENT ADVISORY SERVICES
The Fund hereby engages the Adviser, and the Adviser hereby agrees to
act as investment adviser for, and to manage the affairs, business and the
investment of the assets of the Fund.
The investment of the assets of the Fund shall at all times be subject
to the applicable provisions of the Articles of Incorporation, By-Laws,
Registration Statement on Form N-1A and any representations contained in the
Prospectus of the Fund and shall conform to the policies and purposes of the
Fund as set forth in such Registration Statement and Prospectus and (i) as
interpreted from time to time by the Board of Directors of the Fund and (ii) as
may be amended from time to time by the Board of Directors and/or the
shareholders of the Fund as permitted by the Investment Company Act of 1940, as
amended. Within the framework of the investment policies of the Fund, the
Adviser shall have the sole and exclusive responsibility for the management of
the Fund's assets and making and execution of all investment decisions for the
Fund. The Adviser shall report to the Board of Directors of the Fund regularly
at such times and in such detail as the Board may from time to time determine to
be appropriate, in order to permit the Board to determine the adherence of the
Adviser to the investment policies of the Fund.
The Adviser shall, at its own expense, furnish the Fund with suitable
office space, and all necessary office facilities, equipment and personnel for
servicing the investments of the Fund. The Adviser shall arrange, if requested
by the Fund, for officers, employees or other Affiliated Persons (as defined in
Section 2(a)(3) of the Investment Company Act of 1940, as amended and the rules,
regulations and releases relating thereto) of the Adviser to serve without
compensation from the Fund as directors, officers, or employees of the Fund if
duly elected to such positions by the shareholders or directors of the Fund.
The Adviser hereby acknowledges that all records necessary in the
operation of the Fund, including records pertaining to its shareholders and
investments, are the property of the Fund, and in the event that a transfer of
management or investment advisory services to someone other than the Adviser
should ever occur, the Adviser will promptly, and at its own cost, take all
steps necessary to segregate such records and deliver them to the Fund.
2. COMPENSATION FOR SERVICES
In payment for all services, facilities, equipment and personnel, and
for other costs of the Adviser hereunder, the Fund shall pay to the Adviser a
monthly investment advisory fee determined by applying the annual rate of 1.00%
to the Fund's average daily net assets.
For purposes of the calculation of such fee, the Fund's net assets
shall be computed at the times and in the manner specified in the Fund's
Registration Statement on Form N-1A. Such fee shall be payable on the fifth day
of each calendar month for service performed hereunder during the preceding
month. Such fee shall commence upon conversion of the Fund to an open-end
management investment company. If the Fund's conversion to an open-end
management investment company occurs after the beginning of a month or this
Agreement terminates prior to the end of a month, such fee shall be prorated
according to the proportion which such portion of the month bears to the full
month.
3. ALLOCATION OF EXPENSES
(a) In addition to the fees described in Section 2 hereof, the Fund
shall pay all its expenses which are not assumed by the Adviser in its capacity
as the Fund's investment adviser. These Fund expenses include, by way of
example, but not by way of limitation, (a) brokerage and commission expenses;
(b) interest charges on borrowings; (c) fees and expenses of legal counsel and
independent auditors; (d) the Fund's organizational and offering expenses,
whether or not advanced by the Adviser; (e) Federal, state, local and foreign
taxes, including issue and transfer taxes incurred by or levied on the Fund; (f)
cost of certificates representing common shares of the Fund and any other
expenses (including clerical expenses) of issuance, sale or repurchase of the
common shares of the Fund; (g) association membership dues; (h) fees and
expenses of registering the Fund's shares under the appropriate Federal
securities laws and of qualifying the Fund's shares under applicable state
securities laws; (i) expenses of printing and distributing reports, notices and
proxy materials to shareholders; (j) costs of annual and special shareholders'
meetings; (k) expenses of filing reports and other documents with governmental
agencies; (l) charges and expenses of the Fund's Administrator, custodian and
registrar, transfer agent and dividend disbursing agent; (m) expenses of
disbursing dividends and distributions; (n) compensation of the Fund's officers,
directors and employees that are not Affiliated Persons or Interested Persons
(as defined in Section 2(a) of the Investment Company Act of 1940, as amended
and the rules, regulations and releases relating thereto) of the Adviser; (o)
the cost of other personnel providing services to the Fund; (p) travel expenses
for attendance of Board of Directors meetings by all members of the Board of
Directors of the Fund; (q) insurance expenses; (r) costs of stationery and
supplies; and (s) any extraordinary expenses of a nonrecurring nature.
(b) Notwithstanding the foregoing, if the aggregate expenses incurred
by, or allocated to, the Fund in any fiscal year shall exceed the expense
limitations applicable to the Fund imposed by state securities laws or
regulations thereunder, as such limitations may be raised or lowered from time
to time, the Adviser shall reimburse the Fund for such excess, provided that
Adviser's reimbursement obligation will be limited to the amount of fees it
receives from the Fund during the period in which such expense limitations were
exceeded, unless otherwise required by applicable laws or regulations. With
respect to portions of a fiscal year in which this contract shall be in effect,
the foregoing limitations shall be prorated according to the proportion which
that portion of the fiscal year bears to the full fiscal year. Any payments
required to be made by this Paragraph 3(b) shall be made once a year promptly
after the end of the Fund's fiscal year.
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4. FREEDOM TO DEAL WITH THIRD PARTIES
The Adviser shall be free to render services to others similar to those
rendered under this Agreement or of a different nature except as such services
may conflict with the services to be rendered or the duties to be assumed
hereunder.
5. EFFECTIVE DATE, DURATION AND TERMINATION OF AGREEMENT
This Agreement shall become effective upon conversion of the Fund to an
open-end management investment company (the "Effective Date"). Wherever referred
to in this Agreement, the vote or approval of the holders of a majority of the
outstanding shares of the Fund shall mean the vote of 67% or more of such shares
if the holders of more than 50% of such shares are present in person or by proxy
or the vote of more than 50% of such shares, whichever is less.
Unless sooner terminated as hereinafter provided, this Agreement shall
continue in effect through August 15, 1995, and thereafter shall continue in
effect for successive periods of 12 months thereafter, provided that each
continuance is specifically approved annually by (a) the vote of a majority of
the Fund's Board of Directors who are not parties to the Agreement or interested
persons (as defined in the Investment Company Act of 1940, as amended and the
rules, regulations and releases relating thereto), cast in person at a meeting
called for the purpose of voting on approval and (b) either (i) the vote of a
majority of the outstanding voting securities of the Fund or (ii) the vote of a
majority of the Fund's Board of Directors.
This Agreement may be terminated at any time without the payment of any
penalty by the vote of the Board of Directors of the Fund or by the vote of the
holders of a majority of the outstanding shares of the Fund, upon sixty (60)
days written notice to the Adviser. The Adviser may terminate this Agreement
without penalty on ninety (90) days written notice to the Fund. This Agreement
shall automatically terminate in the event of its assignment as defined in the
Investment Company Act of 1940 and the rules thereunder. This Agreement shall
automatically terminate upon completion of the dissolution, liquidation and
winding up of the Fund.
6. LIMITATION OF LIABILITY
The Adviser will not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund or its shareholders in connection with
the performance of its duties under this Agreement, except a loss resulting from
willful misfeasance, bad faith or negligence on its part in the performance of
its duties or from reckless disregard by it of its duties under this Agreement.
Notwithstanding the above, the Adviser acknowledges that federal and state
securities laws impose liability under certain circumstances when a person acts
in good faith, and nothing herein shall be construed as a limitation or waiver
on any rights that the Fund may have under federal or state securities laws.
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7. AMENDMENTS TO AGREEMENT
No material amendment to this Agreement shall be effective until
approved by vote of the holders of a majority of the outstanding shares of the
Fund.
8. NOTICES
Any notice under this Agreement shall be in writing, addressed,
delivered or mailed, postage prepaid, to the other party at such address as such
other party may designate in writing for receipt of such notice.
9. NAME
The Fund may use "▇▇▇▇▇" as part of its name for so long as the Adviser
serves as investment adviser to the Fund. The Adviser may at any time permit
others, including companies registered under the Investment Company Act of 1940,
as amended, to use the name "▇▇▇▇▇".
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IN WITNESS WHEREOF, the Fund and the Adviser have caused this Agreement
to be executed by their duly authorized officers as of the day and year first
above written.
THE ▇▇▇▇▇ GROWTH FUND, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman of the Board
▇▇▇▇▇ ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Vice Chairman
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