1
EXHIBIT 99.B5C
INVESTMENT MANAGEMENT AGREEMENT
▇▇▇▇▇▇ Value Fund, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
December 31, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Investment Management Agreement
▇▇▇▇▇▇ Small Cap Value Fund
Ladies and Gentlemen:
▇▇▇▇▇▇ VALUE FUND, INC. (the "Corporation") has been established
as a Maryland corporation to engage in the business of an
investment company. Pursuant to the Corporation's Articles of
Incorporation, as amended from time-to-time (the "Articles"), the
Board of Directors is authorized to issue the Corporation's
shares (the "Shares"), in separate series, or funds. The Board of
Directors has authorized ▇▇▇▇▇▇ Small Cap Value Fund (the
"Fund"). Series may be abolished and dissolved, and additional
series established, from time to time by action of the Directors.
The Corporation, on behalf of the Fund, has selected you to act
as the 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 Corporation on behalf of
the Fund agrees with you as follows:
1. Delivery of Documents. The Corporation 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
Corporation's Registration Statement on Form N-1A, as amended
from time to time, (the "Registration Statement") filed by the
Corporation 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 Corporation. The Corporation
has also furnished you with copies properly certified or
authenticated of each of the following additional documents
related to the Corporation and the Fund:
2
(a) The Articles, as amended to date.
(b) By-Laws of the Corporation as in effect on the date
hereof (the "By-Laws").
(c) Resolutions of the Directors of the Corporation and the
shareholders of the Fund selecting you as investment manager and
approving the form of this Agreement.
(d) Establishment and Designation of Series of Shares of
Beneficial Interest relating to the Fund, as applicable.
The Corporation 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 of 1986, 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 Corporation's Board of
Directors. 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 Corporation. You shall also
make available to the Corporation promptly upon request all of
the Fund's investment records and ledgers as are necessary to
assist the Corporation 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
Corporation are being conducted in a manner consistent with
applicable laws and regulations.
You shall determine the securities, instruments, investments,
currencies, repurchase agreements, futures, options and other
contracts relating to investments to be purchased, sold or
entered into by the Fund and place orders with broker-dealers,
2
3
foreign currency dealers, futures commission merchants 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 Corporation's Board of Directors
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 Corporation's officers or Board of Directors 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 Corporation 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 Corporation's Board of Directors
and 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; overseeing the tabulation of
proxies by the Fund's transfer agent; assisting in the
preparation and filing of the Fund's federal, state and local tax
returns; preparing and filing the Fund's federal excise tax
return pursuant to Section 4982 of the Code; 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; assisting in establishing the accounting
policies of the Fund; assisting in the resolution of accounting
issues that may arise with respect to the Fund's operations and
3
4
consulting with the Fund s independent accountants, legal counsel
and the Fund's other agents as necessary in connection therewith;
establishing and monitoring the Fund s operating expense budgets;
reviewing the Fund's bills; processing the payment of bills that
have been approved by an authorized person; assisting the Fund in
determining the amount of dividends and distributions available
to be paid by the Fund to its shareholders, preparing and
arranging for the printing of dividend notices to shareholders,
and providing the transfer and dividend paying agent, the
custodian, and the accounting agent with such information as is
required for such parties to effect the payment of dividends and
distributions; and otherwise assisting the Corporation as it may
reasonably request in the conduct of the Fund's business, subject
to the direction and control of the Corporation's Board of
Directors. 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 obligated
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 Directors, officers and
executive employees of the Corporation (including the Fund's
share of payroll taxes) 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 Corporation, 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 Directors 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
Corporation; 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 for which the Corporation is
responsible pursuant to the terms of the Fund Accounting Services
Agreement, custodians, subcustodians, transfer agents, dividend
4
5
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 Corporation business) of Directors, officers and employees of
the Corporation 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 Directors and officers of the
Corporation; and costs of shareholders' and other meetings.
You shall not 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 (i) such expenses are required to be borne
by a principal underwriter which acts as the distributor of the
Fund's Shares pursuant to an underwriting agreement which
provides that the underwriter shall assume some or all of such
expenses, or (ii) the Corporation on behalf of the Fund shall
have adopted a plan in conformity with Rule 12b-1 under the 1940
Act providing that the Fund (or some other party) shall assume
some or all of such expenses. You shall be required to pay such
of the foregoing sales expenses as are not required to be paid by
the principal underwriter pursuant to the underwriting agreement
or are not permitted to be paid by the Fund (or some other party)
pursuant to such a plan.
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 Corporation 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 the excess of (a)1/12 of .75 of
1 percent of the average daily net assets as defined below of the
Fund for such month; provided that, for any calendar month during
which the average of such values exceeds $250,000,000, the fee
payable for that month based on the portion of the average of
such values in excess of $250,000,000 shall be 1/12 of .72 of 1
percent of such portion; provided that, for any calendar month
during which the average of such values exceeds $1,000,000,000,
the fee payable for that month based on the portion of the
average of such values in excess of $1,000,000,000 shall be 1/12
of .70 of 1 percent of such portion; provided that, for any
5
6
calendar month during which the average of such values exceeds
$2,500,000,000, the fee payable for that month based on the
portion of the average of such values in excess of $2,500,000,000
shall be 1/12 of .68 of 1 percent of such portion; provided
that, for any calendar month during which the average of such
values exceeds $5,000,000,000, the fee payable for that month
based on the portion of the average of such values in excess of
$5,000,000,000 shall be 1/12 of .65 of 1 percent of such portion;
provided that, for any calendar month during which the average of
such values exceeds $7,500,000,000, the fee payable for that
month based on the portion of the average of such values in
excess of $7,500,000,000 shall be 1/12 of .64 of 1 percent of
such portion; provided that, for any calendar month during which
the average of such values exceeds $10,000,000,000, the fee
payable for that month based on the portion of the average of
such values in excess of $10,000,000,000 shall be 1/12 of .63 of
1 percent of such portion; and provided that, for any calendar
month during which the average of such values exceeds
$12,500,000,000, the fee payable for that month based on the
portion of the average of such values in excess of
$12,500,000,000 shall be 1/12 of .62 of 1 percent of such
portion; over (b) any compensation waived by you from time to
time (as more fully described below). You shall be entitled to
receive during any month such interim payments of your fee
hereunder as you shall request, provided that no such payment
shall exceed 75 percent of the amount of your fee then accrued on
the books of the Fund and unpaid.
The "average daily net assets" of the Fund shall mean the average
of the values placed on the Fund's net assets as of 4:00 p.m.
(New York time) 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
Articles 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 4:00 p.m. (New York time), or as of such
other time as the value of the net assets of the Fund's portfolio
may be lawfully determined on that day. If the Fund determines
the value of the net assets of its portfolio more than once on
any day, then the last such determination thereof on that day
shall be deemed to be the sole determination thereof on that day
for the purposes of this section 5.
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
6
7
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 Corporation. 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. Limitation of Liability of Manager. As an inducement to your
undertaking to render services pursuant to this Agreement, the
Corporation 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 Corporation, 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.
8. Duration and Termination of This Agreement. This Agreement
shall remain in force until April 1, 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 Directors 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 Directors of the Corporation, or by
7
8
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 Corporation's Board of Directors on 60 days' written notice
to you, or by you on 60 days' written notice to the Corporation.
This Agreement shall terminate automatically in the event of its
assignment.
This Agreement may be terminated with respect to the Fund at any
time without the payment of any penalty by the Board of Directors
or by vote of a majority of the outstanding voting securities of
the Fund in the event that it shall have been established by a
court of competent jurisdiction that you or any of your officers
or directors has taken any action which results in a breach of
your covenants set forth herein.
9. 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.
10. 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 Commonwealth of Massachusetts, 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.
8
9
This Agreement shall supersede all prior investment advisory or
management agreements entered into between you and the
Corporation 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 Corporation, whereupon this
letter shall become a binding contract effective as of the date
of this Agreement.
Yours very truly,
▇▇▇▇▇▇ VALUE FUND, INC., on behalf of
▇▇▇▇▇▇ Small Cap Value Fund
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Vice President
The foregoing Agreement is hereby accepted as of the date hereof.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Vice President
9