EXHIBIT (g)(3)
[FORM OF AMENDED AND RESTATED MANAGEMENT AGREEMENT]
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Amended and Restated Agreement dated and effective as of [ ],
2004 between The India Fund, Inc., a Maryland corporation (herein referred to as
the "Fund"), and Advantage Advisers, Inc., a Delaware corporation (herein
referred to as the "Investment Manager") (this "Agreement").
1. APPOINTMENT OF INVESTMENT MANAGER. The Investment Manager hereby
undertakes and agrees, upon the terms and conditions herein set forth, to
provide overall investment management services for the Fund and in connection
therewith to: (i) supervise the Fund's investment program, including advising
and consulting with the Fund's Board of Directors regarding the Fund's overall
investment strategy; (ii) make, in consultation with the Fund's Board of
Directors, investment strategy decisions for the Fund; (iii) manage the
investing and reinvesting of the Fund's assets; (iv) place purchase and sale
orders on behalf of the Fund; (v) advise the Fund with respect to all matters
relating to the Fund's use of leveraging techniques; (vi) provide or procure the
provision of research and statistical data to the Fund in relation to investing
and other matters within the scope of the investment objective and limitations
of the Fund; (vii) monitor the performance of the Fund's outside service
providers, including the Fund's administrator, transfer agent and custodian;
(viii) be responsible for compliance by the Fund with U.S. federal, state and
other applicable laws and regulations; and (ix) pay the salaries, fees and
expenses of such of the Fund's directors, officers or employees who are
directors, officers or employees of the Investment Manager or any of its
affiliates, except that the Fund will bear travel expenses or an appropriate
portion thereof of directors and officers of the Fund who are directors,
officers or employees of the Investment Manager to the extent that such expenses
relate to attendance at meetings of the Board of Directors or any committees
thereof. The Investment Manager may delegate any of the foregoing
responsibilities to a third party with the consent of the Fund.
2. EXPENSES. In connection herewith, the Investment Manager agrees to
maintain a staff within its organization to furnish the above services to the
Fund. The Investment Manager shall bear all expenses arising out of its duties
hereunder.
Except as provided in Section 1 hereof, the Fund shall be responsible for
all of the Fund's expenses and liabilities, including organizational and
offering expenses (which include out-of-pocket expenses, but not overhead or
employee costs of the Investment Manager); expenses for legal, accounting and
auditing services; taxes and governmental fees; dues and expenses incurred in
connection with membership in investment company organizations; fees and
expenses incurred in connection with listing the Fund's shares on any stock
exchange; costs of printing and distributing shareholder reports, proxy
materials, prospectuses, stock certificates and distribution of dividends;
charges of the Fund's custodians and sub-custodians, administrators and
sub-administrators, registrars, transfer agents, dividend disbursing agents and
dividend reinvestment plan agents; payment for portfolio pricing services to a
pricing agent, if any; registration and filing fees of the Securities and
Exchange Commission; expenses of registering or qualifying securities of the
Fund for sale in the various states; freight and other charges in connection
with the shipment of the Fund's portfolio securities; fees and expenses of
non-interested directors or non-interested members of any advisory or investment
board, committee or panel of the Fund; travel expenses or an appropriate portion
thereof of directors
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and officers of the Fund, or members of any advisory or investment board,
committee or panel of the Fund, to the extent that such expenses relate to
attendance at meetings of the Board of Directors or any committee thereof, or of
any such advisory or investment board, committee or panel; salaries of
shareholder relations personnel; costs of shareholders meetings; insurance;
interest; brokerage costs; and litigation and other extraordinary or
non-recurring expenses.
3. TRANSACTIONS WITH AFFILIATES. The Investment Manager is authorized on
behalf of the Fund, from time to time when deemed to be in the best interests of
the Fund and to the extent permitted by applicable law, to purchase and/or sell
securities in which the Investment Manager or any of its affiliates underwrites,
deals in and/or makes a market and/or may perform or seek to perform investment
banking services for issuers of such securities. The Investment Manager is
further authorized, to the extent permitted by applicable law, to select brokers
(including ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. or any other brokers affiliated with the
Investment Manager) for the execution of trades for the Fund.
4. BEST EXECUTION; RESEARCH SERVICES. The Investment Manager is
authorized, for the purchase and sale of the Fund's portfolio securities, to
employ such dealers and brokers as may, in the judgment of the Investment
Manager, implement the policy of the Fund to obtain the best results, taking
into account such factors as price, including dealer spread, the size, type and
difficulty of the transaction involved, the firm's general execution and
operational facilities and the firm's risk in positioning the securities
involved. Consistent with this policy, the Investment Manager is authorized to
direct the execution of the Fund's portfolio transactions to dealers and brokers
furnishing statistical information or research deemed by the Investment Manager
to be useful or valuable to the performance of its investment advisory functions
for the Fund. It is understood that in these circumstances, as contemplated by
Section 28(e) of the Securities Exchange Act of 1934, as amended, the
commissions paid may be higher than those which the Fund might otherwise have
paid to another broker if those services had not been provided. Information so
received will be in addition to and not in lieu of the services required to be
performed by the Investment Manager. It is understood that the expenses of the
Investment Manager will not necessarily be reduced as a result of the receipt of
such information or research. Research services furnished to the Investment
Manager by brokers who effect securities transactions for the Fund may be used
by the Investment Manager in servicing other investment companies and accounts
which it manages. Similarly, research services furnished to the Investment
Manager by brokers who effect securities transactions for other investment
companies and accounts which the Investment Manager manages may be used by the
Investment Manager in servicing the Fund. It is understood that not all of these
research services are used by the Investment Manager in managing any particular
account, including the Fund.
5. REMUNERATION. In consideration of the services to be rendered by the
Investment Manager under this Agreement, the Fund shall pay the Investment
Manager a monthly fee in United States dollars on the fifth business day of each
month for the previous month at an annual rate of: (i) 1.10% of the Fund's
average weekly net assets up to and including $600,000,000 and (ii) 0.95% of the
Fund's average weekly net assets in excess of $600,000,000. If the fee payable
to the Investment Manager pursuant to this paragraph 5 begins to accrue before
the end of any month or if this Agreement terminates before the end of any
month, the fee for the period from such date to the end of such month or from
the beginning of such month to the date of termination, as the case may be,
shall be prorated according to the proportion which such period bears to the
full month in which such effectiveness or termination occurs. For purposes of
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calculating each such monthly fee, the value of the Fund's net assets shall be
computed at the time and in the manner specified in the Registration Statement.
6. REPRESENTATIONS AND WARRANTIES. The Investment Manager represents and
warrants that it is duly registered and authorized as an investment adviser
under the Investment Advisers Act of 1940, as amended, and the Investment
Manager agrees to maintain effective all requisite registrations, authorizations
and licenses, as the case may be, until the termination of this Agreement.
7. SERVICES NOT DEEMED EXCLUSIVE. The services provided hereunder by the
Investment Manager are not to be deemed exclusive, and the Investment Manager
and any of its affiliates or related persons are free to render similar services
to others and to use the research developed in connection with this Agreement
for other clients or affiliates. Nothing herein shall be construed as
constituting the Investment Manager an agent of the Fund.
8. LIMIT OF LIABILITY. The Investment Manager shall exercise its best
judgment in rendering the services in accordance with the terms of this
Agreement. The Investment Manager shall not be liable for any error of judgment
or mistake of law or for any act or omission or any loss suffered by the Fund in
connection with the matters to which this Agreement relates, provided that
nothing herein shall be deemed to protect or purport to protect the Investment
Manager against any liability to the Fund or its shareholders to which the
Investment Manager would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this Agreement
("disabling conduct"). The Fund will indemnify the Investment Manager against,
and hold it harmless from, any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses), including any amounts
paid in satisfaction of judgments, in compromise or as fines or penalties, not
resulting from disabling conduct by the Investment Manager. Indemnification
shall be made only following: (i) a final decision on the merits by a court or
other body before which the proceeding was brought that the Investment Manager
was not liable by reason of disabling conduct or (ii) in the absence of such a
decision, a reasonable determination, based upon a review of the facts, that the
Investment Manager was not liable by reason of disabling conduct by (a) the vote
of a majority of a quorum of directors of the Fund who are neither "interested
persons" of the Fund nor parties to the proceeding ("disinterested non-party
directors") or (b) an independent legal counsel in a written opinion. The
Investment Manager shall be entitled to advances from the Fund for payment of
the reasonable expenses (including reasonable counsel fees and expenses)
incurred by it in connection with the matter as to which it is seeking
indemnification in the manner and to the fullest extent permissible under law.
Prior to any such advance, the Investment Manager shall provide to the Fund a
written affirmation of its good faith belief that the standard of conduct
necessary for indemnification by the Fund has been met and a written undertaking
to repay any such advance if it should ultimately be determined that the
standard of conduct has not been met. In addition, at least one of the following
additional conditions shall be met: (a) the Investment Manager shall provide a
security in form and amount acceptable to the Fund for its undertaking; (b) the
Fund is insured against losses arising by reason of the advance; or (c) a
majority of a quorum of disinterested non-party directors or independent legal
counsel, in a written opinion, shall have determined, based on a review of facts
readily available to the Fund at the time the advance is proposed to be made,
that there is reason to believe that the Investment Manager will ultimately be
found to be entitled to indemnification.
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9. DURATION AND TERMINATION. This Agreement shall remain in effect until
June 4, 2005 and shall continue in effect thereafter for successive annual
periods, but only so long as such continuance is specifically approved at least
annually by the affirmative vote of (i) a majority of the members of the Fund's
Board of Directors who are not parties to this Agreement or "interested persons"
(as defined in the Investment Company Act of 1940, as amended ("1940 Act")) of
any such party, cast in person at a meeting called for the purpose of voting on
such approval, and (ii) the Fund's Board of Directors or the holders of a
majority of the outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of
the Fund.
Notwithstanding the above, this Agreement (a) may nevertheless be
terminated at any time, without penalty, by the Fund's Board of Directors, by
vote of the holders of a majority of the outstanding voting securities (as
defined in the ▇▇▇▇ ▇▇▇) of the Fund or by the Investment Manager, upon 60 days'
written notice delivered to each party hereto, and (b) shall automatically be
terminated in the event of its assignment (as defined in the 1940 Act). Any such
notice shall be deemed given when received by the addressee.
10. GOVERNING LAW. This Agreement shall be governed, construed and
interpreted in accordance with the laws of the State of New York, PROVIDED,
HOWEVER, that nothing herein shall be construed as being inconsistent with the
1940 Act.
11. NOTICES. Any notice hereunder shall be in writing and shall be
delivered in person or by telex or facsimile (followed by delivery in person) to
the parties at the addresses set forth below.
If to the Fund:
The India Fund, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman
If to the Investment Manager:
Advantage Advisers, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
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or to such other address as to which the recipient shall have informed the other
party in writing.
Unless specifically provided elsewhere, notice given as provided above
shall be deemed to have been given, if by personal delivery, on the day of such
delivery, and, if by facsimile and mail, on the date on which such facsimile or
mail is sent.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto caused their duly authorized
signatories to execute this Agreement as of the day and year first written
above.
THE INDIA FUND, INC.
By: ________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
ADVANTAGE ADVISERS, INC.
By: ________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: