EX-99.B(d)rsima
INVESTMENT MANAGEMENT AGREEMENT
United Retirement Shares, Inc. and Xxxxxxx & Xxxx, Inc. ("W&R") entered
into an Investment Management Agreement on August 1, 1990. W&R assigned the
Investment Management Agreement to Xxxxxxx & Xxxx Investment Management
Company ("WRIMCO") on January 8, 1992, and the Investment Management
Agreement between Xxxxxxx & Xxxx Advisors Retirement Shares, Inc. ("Fund")
and WRIMCO, hereby amended and restated as of August 21, 2002, has been
approved, annually, by the Board of Directors, including separate approval
by the Disinterested Directors, as prescribed by Section 15(c) of the
Investment Company Act of 1940, as amended ("1940 Act").
WITNESSETH:
In consideration of the mutual promises and agreements herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, it is hereby agreed by and between the parties hereto as
follows:
I. In General
WRIMCO agrees to act as investment adviser to the Fund with respect to
the investment of its assets and in general to supervise the investments of
the Fund, subject at all times to the direction and control of the Board of
Directors of the Fund, all as more fully set forth herein.
II. Duties of WRIMCO with respect to investment of assets of the Fund
A. WRIMCO shall regularly provide investment advice to the Fund and
shall, subject to the succeeding provisions of this section, continuously
supervise the investment and reinvestment of cash, securities or other
property comprising the assets of the investment portfolio of the Fund; and
in furtherance thereof, WRIMCO shall:
1. obtain and evaluate pertinent information about significant
developments and economic, statistical and financial data, domestic,
foreign or otherwise, whether affecting the economy generally or the
portfolio of the Fund, and whether concerning the individual companies
whose securities are included in the Fund's portfolio or the industries in
which they engage, or with respect to securities which WRIMCO considers
desirable for inclusion in the Fund's portfolio;
2. furnish continuously an investment program for the portfolio of the
Fund;
3. determine what securities shall be purchased or sold by the Fund;
4. take, on behalf of the Fund, all actions which appear to WRIMCO
necessary to carry into effect such investment programs and supervisory
functions as aforesaid, including the placing of purchase and sale orders.
B. WRIMCO shall make appropriate and regular reports to the Board of
Directors of the Fund on the actions it takes pursuant to Section II.A.
above. Any investment programs furnished by WRIMCO under this section, or
any supervisory function taken hereunder by WRIMCO shall at all times
conform to and be in accordance with any requirements imposed by:
1. the provisions of the 1940 Act and any rules or regulations in
force thereunder;
2. any other applicable provision of law;
3. the provisions of the Articles of Incorporation of the Fund as
amended from time to time;
4. the provisions of the Bylaws of the Fund as amended from time to
time;
5. the terms of the registration statement of the Fund, as amended
from time to time, under the Securities Act of 1933 and the 1940 Act.
C. Any investment programs furnished by WRIMCO under this section or
any supervisory functions taken hereunder by WRIMCO shall at all times be
subject to any directions of the Board of Directors of the Fund, its
Executive Committee, or any committee or officer of the Fund acting
pursuant to authority given by the Board of Directors.
III. Allocation of Expenses
The expenses of the Fund and the expenses of WRIMCO in performing its
functions under this Agreement shall be divided into two classes, to wit:
(i) those expenses which will be paid in full by WRIMCO as set forth in
subparagraph "A" hereof, and (ii) those expenses which will be paid in full
by the Fund, as set forth in subparagraph "B" hereof.
A. With respect to the duties of WRIMCO under Section II above, it
shall pay in full, except as to the brokerage and research services
acquired through the allocation of commissions as provided in Section IV
hereinafter, for (a) the salaries and employment benefits of all employees
of WRIMCO who are engaged in providing these advisory services; (b)
adequate office space and suitable office equipment for such employees; and
(c) all telephone and communications costs relating to such functions. In
addition, WRIMCO shall pay the fees and expenses of all directors of the
Fund who are employees of WRIMCO or an affiliated corporation and the
salaries and employment benefits of all officers of the Fund who are
affiliated persons of WRIMCO.
B. The Fund shall pay in full for all of its expenses which are not
listed above (other than those assumed by W&R or its affiliates in their
respective capacities as principal underwriter of the shares of the Fund,
as Shareholder Servicing Agent or as Accounting Services Agent for the
Fund), including (a) the costs of preparing and printing prospectuses and
reports to shareholders of the Fund including mailing costs; (b) the costs
of printing all proxy statements and all other costs and expenses of
meetings of shareholders of the Fund (unless the Fund and WRIMCO shall
otherwise agree); (c) interest, taxes, brokerage commission and premiums on
fidelity and other insurance; (d) audit fees and expenses of independent
accountants and legal fees and expenses of attorneys, but not of attorneys
who are employees of WRIMCO or an affiliated company; (e) fees and expenses
of its directors not affiliated with WRIMCO or its affiliates; (f)
custodian fees and expenses; (g) fees payable by the Fund under the
Securities Act of 1933, the 1940 Act, and the securities or "Blue-Sky" laws
of any jurisdiction; (h) fees and assessments of the Investment Company
Institute or any successor organization; (i) such non recurring or
extraordinary expenses as may arise, including litigation affecting the
Fund and any indemnification by the Fund of its officers, directors,
employees and agents with respect thereto; (j) the costs and expenses
provided for in any Shareholder Servicing Agreement or Accounting Services
Agreement, including amendments thereto, contemplated by subsection C of
this Section III. In the event that any of the foregoing shall, in the
first instance, be paid by WRIMCO, the Fund shall pay the same to WRIMCO on
presentation of a statement with respect thereto.
C. WRIMCO, or an affiliate of WRIMCO, may also act as (i) transfer
agent or shareholder servicing agent of the Fund and/or as (ii) accounting
services agent of the Fund if at the time in question there is a separate
agreement, "Shareholder Servicing Agreement" and/or "Accounting Services
Agreement," covering such functions between the Fund and WRIMCO or such
affiliate. The corporation, whether WRIMCO or its affiliate, which is the
party to such Agreement with the Fund is referred to as the "Agent." Each
such Agreement shall provide in substance that it shall not go into effect,
or be amended, or a new agreement covering the same topics between the Fund
and the Agent be entered into unless the terms of such Agreement, such
amendment or such new agreement have been approved by the Board of
Directors of the Fund, including the vote of a majority of the directors
who are not "interested persons" as defined in the 1940 Act, of either
party to the Agreement, such amendment or such new agreement (considering
WRIMCO to be such a party even if at the time in question the Agent is an
affiliate of WRIMCO), cast in person at a meeting called for the purpose of
voting on such approval. Such a vote is referred to as a "disinterested
director" vote. Each such Agreement shall also provide in substance for its
continuance, unless terminated, for a specified period which shall not
exceed two years from the date of its execution and from year to year
thereafter only if such continuance is specifically approved at least
annually by a disinterested director vote, and that any disinterested
director vote shall include a determination that (i) the Agreement,
amendment, new agreement or continuance in question is in the best
interests of the Fund and its shareholders; (ii) the services to be
performed under the Agreement, the Agreement as amended, new agreement or
agreement to be continued are services required for the operation of the
Fund; (iii) the Agent can provide services the nature and quality of which
are at least equal to those provided by others offering the same or similar
services; and (iv) the fees for such services are fair and reasonable in
light of the usual and customary charges made by others for services of the
same nature and quality. Any such Agreement may also provide in substance
that any disinterested director vote may be conditioned on the favorable
vote of the holders of a majority (as defined in or under the 0000 Xxx) of
the outstanding shares of each class of the Fund. Any such Agreement shall
also provide in substance that it may be terminated by the Agent at any
time without penalty upon giving the Fund one hundred twenty (120) days'
written notice (which notice may be waived by the Fund) and may be
terminated by the Fund at any time without penalty upon giving the Agent
sixty (60) days' written notice (which notice may be waived by the Agent),
provided that such termination by the Fund shall be directed or approved by
the vote of a majority of the Board of Directors of the Fund in office at
the time or by the vote of the holders of a majority (as defined in or
under the 0000 Xxx) of the outstanding shares of each class of the Fund.
IV. Brokerage
(A) WRIMCO may select brokers to effect the portfolio transactions of
the Fund on the basis of its estimate of their ability to obtain, for
reasonable and competitive commissions, the best execution of particular
and related portfolio transactions. For this purpose, "best execution"
means prompt and reliable execution at the most favorable price obtainable.
Such brokers may be selected on the basis of all relevant factors including
the execution capabilities required by the transaction or transactions,
the importance of speed, efficiency, or confidentiality, and the
willingness of the broker to provide useful or desirable investment
research and/or special execution services. WRIMCO shall have no duty to
seek advance competitive commission bids and may select brokers based
solely on its current knowledge of prevailing commission rates.
(B) Subject to the foregoing, WRIMCO shall have discretion, in the
interest of the Fund, to direct the execution of its portfolio transactions
to brokers who provide brokerage and/or research services (as such services
are defined in Section 28(e) of the Securities Exchange Act of 1934) for
the Fund and/or other accounts for which WRIMCO and its affiliates exercise
"investment discretion" (as that term is defined in Section 3(a)(35) of the
Securities Act of 1934); and in connection with such transactions, to pay
commission in excess of the amount another adequately qualified broker
would have charged if WRIMCO 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, viewed in terms of either that
particular transaction or the overall responsibilities of WRIMCO and its
investment advisory affiliates with respect to the accounts for which they
exercise investment discretion. In reaching such determination, WRIMCO will
not be required to attempt to place a specified dollar amount on the
brokerage and/or research services provided by such broker; provided that
WRIMCO shall be prepared to demonstrate that such determinations were made
in good faith, and that all commissions paid by the Fund over a
representative period selected by its Board of Directors were reasonable in
relation to the benefits to the Fund.
(C) Subject to the foregoing provisions of this Paragraph "IV,"
WRIMCO may also consider sales of insurance policies funded by the Fund's
shares and sales of shares of investment companies distributed by W&R or
its affiliates, and portfolio valuation or pricing services as a factor in
the selection of brokers to execute brokerage and principal portfolio
transactions.
V. Compensation of WRIMCO
As compensation in full for services rendered and for the facilities
and personnel furnished under sections I, II, and IV of this Agreement, the
Fund will pay to WRIMCO for each day the fees specified in Exhibit A
hereto.
The amounts payable to WRIMCO shall be determined as of the close of
business each day; shall, except as set forth below, be based upon the
value of net assets computed in accordance with the Articles of
Incorporation of the Fund; and shall be paid in arrears whenever requested
by WRIMCO. In computing the value of the net assets of the Fund, there
shall be excluded the amount owed to the Fund with respect to shares which
have been sold but not yet paid to the Fund by W&R.
Notwithstanding the foregoing, if the laws, regulations or policies of
any state in which shares of the Fund are qualified for sale limit the
operation and management expenses of the Fund, WRIMCO will refund to the
Fund the amount by which such expenses exceed the lowest of such state
limitations.
VI. Undertakings of WRIMCO; Liabilities
WRIMCO shall give to the Fund the benefit of its best judgment,
efforts and facilities in rendering advisory services hereunder.
WRIMCO shall at all times be guided by and be subject to the Fund's
investment policies, the provisions of the Fund's Articles of Incorporation
and Bylaws as each shall from time to time be amended, and to the decision
and determination of the Fund's Board of Directors.
This Agreement shall be performed in accordance with the requirements
of the 1940 Act, the Investment Advisers Act of 1940, the Securities Act of
1933, and the Securities Exchange Act of 1934, to the extent that the
subject matter of this Agreement is within the purview of such Acts.
Insofar as applicable to WRIMCO as an investment adviser and affiliated
person of the Fund, WRIMCO shall comply with the provisions of the 1940
Act, the Investment Advisers Act of 1940 and the respective rules and
regulations of the Securities and Exchange Commission thereunder.
In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of obligations or duties hereunder on the part of
WRIMCO, it shall not be subject to liability to the Fund or to any
stockholder of the Fund (direct or beneficial) for any act or omission in
the course of or connected with rendering services thereunder or for any
losses that may be sustained in the purchase, holding or sale of any
security.
VII. Duration of this Agreement
This Agreement shall be renewed at the start of business on the date
hereof and shall continue in effect, unless terminated as hereinafter
provided, for a period of one year and from year-to-year thereafter only if
such continuance is specifically approved at least annually by the Board of
Directors, including the vote of a majority of the directors who are not
parties to this Agreement or "interested persons" (as defined in the 0000
Xxx) of any such party, cast in person at a meeting called for the purpose
of voting on such approval, or by the vote of the holders of a majority (as
so defined) of the outstanding voting securities of each class of the Fund
and by the vote of a majority of the directors who are not parties to this
Agreement or "interested persons" (as so defined) of any such party, cast
in person at a meeting called for the purpose of voting on such approval.
VIII. Termination
This Agreement may be terminated by WRIMCO at any time without penalty
upon giving the Fund one hundred twenty (120) days' written notice (which
notice may be waived by the Fund) and may be terminated by the Fund at any
time without penalty upon giving WRIMCO sixty (60) days' written notice
(which notice may be waived by WRIMCO), provided that such termination by
the Fund shall be directed or approved by the vote of a majority of the
Board of Directors of the Fund in office at the time or by the vote of a
majority (as defined in the 0000 Xxx) of the outstanding voting securities
of the Fund. This Agreement shall automatically terminate in the event of
its assignment, the term "assignment" for this purpose having the meaning
defined in Section 2(a)(4) of the 1940 Act and the rules and regulations
thereunder.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their corporate seal
to be hereunto affixed, all as of the day and year first above written.
(Seal) XXXXXXX & XXXX ADVISORS
RETIREMENT SHARES, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
ATTEST:
/s/Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Secretary
(Seal) XXXXXXX & XXXX INVESTMENT
MANAGEMENT COMPANY
By: /s/Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
President
ATTEST:
/s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Vice President
EXHIBIT A TO INVESTMENT MANAGEMENT AGREEMENT
XXXXXXX & XXXX ADVISORS RETIREMENT SHARES, INC.
FEE SCHEDULE
A cash fee computed each day on net asset value for the Fund at the annual
rates listed below:
Net Assets Fee
Up to $1 billion 0.70% of net assets
Over $1 billion and up to $2 billion 0.65% of net assets
Over $2 billion and up to $3 billion 0.60% of net assets
Over $3 billion 0.55% of net assets
As Amended and Effective August 21, 2002.
