EX-99.B(d)invima
INVESTMENT MANAGEMENT AGREEMENT
THIS AGREEMENT, made this 22nd day of August, 2001, by and between XXXXXXX
& XXXX INVESTED PORTFOLIOS, INC. (the "Fund"), and XXXXXXX & XXXX
INVESTMENT MANAGEMENT COMPANY (hereinafter called "WRIMCO"),
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 portfolios 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 one or
more of the portfolios of the Fund, and whether concerning the individual
companies whose securities are included in one or more of the Fund's
portfolios or the industries in which they engage, or with respect to
securities which WRIMCO considers desirable for inclusion in one or more of
the Fund's portfolios;
2. furnish continuously an investment program for each of the
portfolios 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 Investment Company Act of 1940 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
Investment Company Act of 1940.
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 affiliated with 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 WRIMCO or one of its affiliates
in its capacity as principal underwriter of the shares of the Fund, as
Administrative and 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 commissions
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 Xxxxxxx & Xxxx,
Inc.; (f) custodian fees and expenses; (g) fees payable by the Fund under
the Securities Act of 1933, the Investment Company Act of 1940, 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
nonrecurring 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 Administrative and 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 administrative and 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, "Administrative and Shareholder Servicing
Agreement" and/or "Accounting Services Agreement," covering such functions
between the Fund and WRIMCO, or such affiliate. The entity, whether WRIMCO,
or its affiliate, which is the party to either such Agreement with the Fund
is referred to as the "Agent." Each such Agreement shall provide in
substance that it shall go into effect, or be amended, or a new agreement
covering the same topics between the Fund and the Agent may be entered
into, only if 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 Investment Company Act of 1940, 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 (a) the Agreement,
amendment, new agreement or continuance in question is in the best
interests of the Fund and its shareholders; (b) 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; (c) 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 (d) 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 Investment
Company Act of 1940) of the outstanding shares of each class or series 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 Investment Company Act of 1940) of the
outstanding shares of each class or series 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 exercises "investment
discretion" (as that term is defined in Section 3(a)(35) of the Securities
Exchange 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 with
respect to the accounts for which it exercises 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 the Fund's shares and shares of other investment
companies distributed by Xxxxxxx & Xxxx, Inc. or one of 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
A. 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 fee specified in
Exhibit A hereto.
B. 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 Xxxxxxx & Xxxx, Inc.
VI. Undertakings of WRIMCO; Liabilities
A. WRIMCO shall give to the Fund the benefit of its best judgment,
efforts and facilities in rendering advisory services hereunder.
B. WRIMCO shall at all times be guided by and be subject to the Fund's
investment policies, the provisions of its 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.
C. This Agreement shall be performed in accordance with the
requirements of the Investment Company Act of 1940, 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 Investment Company Act of 1940, the Investment Advisers
Act of 1940 and the respective rules and regulations of the Securities and
Exchange Commission thereunder.
D. 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 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 become effective 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
Investment Company Act of 1940) 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 or series 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 Investment Company Act of 1940) 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 Investment Company Act of 1940 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 INVESTED PORTFOLIOS, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Vice President
ATTEST:
By: /s/Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Secretary
(Seal) XXXXXXX & XXXX INVESTMENT
MANAGEMENT COMPANY
By: /s/Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, President
ATTEST:
By: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Secretary
EXHIBIT A TO INVESTMENT MANAGEMENT AGREEMENT
XXXXXXX & XXXX INVESTED PORTFOLIOS, INC.
FEE SCHEDULE*
Growth Portfolio
A cash fee computed each day on the net assets of the Fund at the annual
rate of 0.05% of net assets.
Balanced Portfolio
A cash fee computed each day on the net assets of the Fund at the annual
rate of 0.05% of net assets.
Conservative Portfolio
A cash fee computed each day on the net assets of the Fund at the annual
rate of 0.05% of net assets.
*If a Portfolio's net assets are less than $25 million, WRIMCO has agreed
to waive the management fee, subject to its right to change or modify this
waiver.
