Exhibit 99.23(d)(i)
INVESTMENT ADVISORY AGREEMENT
THE RISA INVESTMENT TRUST
AGREEMENT made this __th day of __________, 1999, by and between RISA
Investment Advisers, LLC (the "Adviser") and The RISA Investment Trust (the
"Trust").
WHEREAS, the Trust is an open-end, management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), which is authorized to issue one or more series of shares, each having
its own investment policies; and
WHEREAS, the Trust desires to retain the Adviser to render investment
management services on behalf of The RISA Fund series, and such other series as
the Trust and the Adviser may agree upon (the "Portfolios"), and the Adviser is
willing to render such services:
NOW, THEREFORE, in consideration of mutual covenants herein contained, the
parties hereto agree as follows:
1. DUTIES OF THE ADVISER. The Trust employs the Adviser to manage the
investment and reinvestment of the assets, to hire (subject to the
approval of the Trust's Board of Trustees and, except as otherwise
permitted under the terms of any exemptive relief obtained by the Adviser
from the Securities and Exchange Commission, or by rule or regulation, a
majority of the outstanding voting securities of any affected
Portfolio(s)) and thereafter supervise the investment activities of one or
more sub-advisers deemed necessary to carry out the investment program of
any Portfolios of the Trust, and to continuously review, supervise and
(where appropriate) administer the investment program of the Portfolios,
to determine in its discretion (where appropriate) the securities to be
purchased or sold, to provide the Fund's administrator (the
"Administrator") and the Trust with records concerning the Adviser's
activities which the Trust is required to maintain, and to render regular
reports to the Administrator and to the Trust's officers and Trustees
concerning the Adviser's discharge of the foregoing responsibilities. The
retention of a sub-adviser by the Adviser shall not relieve the Adviser of
its responsibilities under this Agreement.
The Adviser shall discharge the foregoing responsibilities subject to the
control of the Board of Trustees of the Trust and in compliance with such
policies as the Trustees may from time to time establish, and in
compliance with the objectives, policies, and limitations for each such
Portfolio set forth in the Trust's prospectus and statement of additional
information, as amended from time to time (referred to collectively as the
"Prospectus"), and applicable laws and regulations. The Trust will furnish
the Adviser from time to time with copies of all amendments or supplements
to the Prospectus, if any. The Adviser accepts such employment and agrees,
at its own expense, to render the services and to provide the office
space, furnishings and equipment and the personnel (including any
sub-advisers) required by it to perform the services on the terms and for
the compensation provided herein. The Adviser will not, however, pay for
the cost of securities, commodities, and other investments (including
brokerage commissions and other transaction charges, if any) purchased or
sold for the Trust.
2. DELIVERY OF DOCUMENTS. The Trust has furnished the Adviser with copies
properly certified or authenticated of each of the following:
(a) The Trust's Agreement and Declaration of Trust, as filed with the
Secretary of State of the State of Delaware (such Agreement and
Declaration of Trust, as presently in effect and as it shall from
time to time be amended, is herein called the "Declaration of
Trust");
(b) By-Laws of the Trust (such By-Laws, as in effect on the date of this
Agreement and as amended from time to time, are herein called the
"By-Laws");
(c) Prospectus(es) of the Portfolio(s).
3. OTHER COVENANTS. The Adviser agrees that it:
(a) will comply with all applicable Rules and Regulations of the
Securities and Exchange Commission and will in addition conduct its
activities under this Agreement in accordance with other applicable
laws;
(b) will place orders pursuant to its investment determinations for the
Portfolios either directly with the issuer or with any broker or
dealer. In executing Portfolio transactions and selecting brokers or
dealers, the Adviser will use its best efforts to seek on behalf of
the Portfolio the best overall terms available. In assessing the
best overall terms available for any transaction, the Adviser shall
consider all factors that it deems relevant, including the breadth
of the market in the security, the price of the security, the
financial condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if any, both for
the specific transaction and on a continuing basis. In evaluating
the best overall terms available, and in selecting the broker-dealer
to execute a particular transaction the Adviser may also consider
the brokerage and research services (as those terms are defined in
Section 28(e) of the Securities Exchange Act of 1934) provided to
the Portfolio and/or other accounts over which the Adviser or an
affiliate of the Adviser may exercise investment discretion. The
Adviser is authorized, subject to the prior approval of the Trust's
Board of Trustees, to pay to a broker or dealer who provides such
brokerage and research services a commission for executing a
portfolio transaction for any of the Portfolios which is in excess
of the amount of commission another broker or dealer would have
charged for effecting that transaction if, but only if, the Adviser
determines in good faith that such commission was reasonable in
relation to the value of the brokerage and research services
provided by such broker or dealer - - viewed in terms of that
particular transaction or terms of the overall responsibilities of
the Adviser to the Portfolio. In addition, the Adviser is authorized
to allocate purchase and sale orders for portfolio securities to
brokers or dealers (including brokers and dealers that are
affiliated with the Adviser or the Trust's principal underwriter) to
take into account the sale of shares of the Trust if the Adviser
believes that the quality of the transaction and the commission are
comparable to what they would be with other qualified firms. In no
instance, however, will any Portfolio's securities be purchased from
or sold to the Adviser, any sub-adviser engaged with respect to that
Portfolio, the Trust's principal underwriter, or any affiliated
person of either the Trust, the Adviser, and sub-adviser or the
principal underwriter, acting as principal in the transaction,
except to the extent permitted by the Securities and Exchange
Commission and the 1940 Act.
4. COMPENSATION OF THE ADVISER. For the services to be rendered by the
Adviser as provided in Sections 1 and 3 of this Agreement, the Trust shall
pay to the Adviser compensation at the rate(s) specified in Schedule A
which is attached hereto and made a part of this Agreement. Such
compensation shall be paid to the Adviser at the end of each month, and
calculated by applying a daily rate, based on the annual percentage rates
as specified in the attached Schedule(s), to the assets of the Portfolio.
The fee shall be based on the average daily net assets for the month
involved. The Adviser may, in its discretion and from time to time, waive
a portion of its fee. All rights of compensation under this Agreement for
services performed as of the termination date shall survive the
termination of this Agreement.
5. REPORTS. The Trust and the Adviser agree to furnish to each other, if
applicable, current prospectuses, proxy statements, reports to
shareholders, certified copies of their financial statements, and such
other information with regard to their affairs as each may reasonably
request. The Adviser further agrees to furnish to the Trust, if
applicable, the same such documents and information pertaining to any
sub-adviser as the Trust may reasonably request.
6. STATUS OF THE ADVISER. The services of the Adviser to the Trust are not to
be deemed exclusive, and the Adviser shall be free to render similar
services to others so long as its services to the Trust are not impaired
thereby. The Adviser shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Trust in any way or otherwise be
deemed an agent of the Trust. To the extent that the purchase or sale of
securities or other investments of any issuer may be deemed by the Adviser
to be suitable for two or more accounts managed by the Adviser, the
available securities or investments may be
allocated in a manner believed by the Adviser to be equitable to each
account. It is recognized that in some cases this may adversely affect
the price paid or received by the Trust or the size or position
obtainable for or disposed by the Trust or any Portfolio.
7. CERTAIN RECORDS. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under
the 1940 Act which are prepared or maintained by the Adviser (or any
sub-adviser) on behalf of the Trust are the property of the Trust and will
be surrendered promptly to the Trust on request. The Adviser further
agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940
Act the records required to be maintained under Rule 31a-1 under the 1940
Act.
8. LIMITATION OF LIABILITY OF THE ADVISER. The duties of the Adviser shall be
confined to those expressly set forth herein, and no implied duties are
assumed by or may be asserted against the Adviser hereunder. The Adviser
shall not be liable for any error of judgment or mistake of law or for any
loss arising out of any investment or for any act or omission in carrying
out its duties hereunder, except a loss resulting from willful
misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of
applicable state law which cannot be waived or modified hereby. (As used
in this Section 8, the term "Adviser" shall include members, officers,
managers, employees and other corporate agents of the Adviser as well as
that corporation itself).
9. PERMISSIBLE INTERESTS. Trustees, agents, and shareholders of the Trust are
or may be interested in the Adviser (or any successor thereof) as members,
officers, managers or partners, or otherwise; members, officers, managers
or partners of the Adviser are or may be interested in the Trust as
Trustees, officers, shareholders or otherwise; and the Adviser (or any
successor) is or may be interested in the Trust as a shareholder or
otherwise subject to the provisions of applicable law. All such interests
shall be fully disclosed between the parties on an ongoing basis and in
the Trust's Prospectus as required by law. In addition, brokerage
transactions for the Trust may be effected through affiliates of the
Adviser or any sub-adviser if approved by the Board of Trustees, subject
to the rules and regulations of the Securities and Exchange Commission.
10. DURATION AND TERMINATION. This Agreement, unless sooner terminated as
provided herein, shall remain in effect until two years from date of
execution, and thereafter, for periods of one year so long as such
continuance thereafter is specifically approved at least annually (a) by
the vote of a majority of those Trustees of the Trust who are not parties
to this Agreement or interested persons of any such party, cast in person
at a meeting called for the purpose of voting on such approval, and (b) by
the Trustees of the Trust or by vote of a majority of the outstanding
voting securities of each Portfolio; provided, however, that if the
shareholders of any Portfolio fail to approve the Agreement as provided
herein, the Adviser may continue to serve hereunder in the manner and to
the extent permitted by the 1940 Act and rules and regulations thereunder.
The foregoing 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.
This Agreement may be terminated as to any Portfolio at any time, without
the payment of any penalty by vote of a majority of the Trustees of the
Trust or by vote of a majority of the outstanding voting securities of the
Portfolio on not less than 30 days nor more than 60 days written notice to
the Adviser, or by the Adviser at any time without the payment of any
penalty, on 90 days written notice to the Trust. This Agreement will
automatically and immediately terminate in the event of its assignment. As
used in this Section 10, the terms "assignment", "interested persons", and
a "vote of a majority of the outstanding voting securities" shall have the
respective meanings set forth in the 1940 Act and the rules and
regulations thereunder, subject to such exemptions as may be granted by
the Securities and Exchange Commission.
11. GOVERNING LAW. This Agreement shall be governed by the internal laws of
the State of Delaware, without regard to conflict of law principles;
provided, however that nothing herein shall be construed as being
inconsistent with the 1940 Act.
12. NOTICE. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by registered,
certified or overnight mail, postage prepaid addressed by the party giving
notice to the other party at the last address furnished by the other
party:
To the Adviser at: RISA Investment Advisers, LLC
Xxxxx Tower
000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: O. Xxx Xxxxx
To the Trust at: RISA Investment Advisers, LLC
Xxxxx Tower
000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: O. Xxx Xxxxx
13. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to this Agreement's subject matter.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument. A copy of the Declaration of
Trust of the Trust is on file with the Secretary of State of the State of
Delaware, and notice is hereby given that this instrument is executed on
behalf of the Trustees of the Trust as Trustees, and is not binding upon
any of the Trustees, officers, or shareholders of the Trust individually
but binding only upon the assets and property of the Trust. No Portfolio
of the Trust shall be liable for the obligations of any other Portfolio of
the Trust. Without limiting the generality of the foregoing, the Adviser
shall look only to the assets of a particular Portfolio for payment of
fees for services rendered to that Portfolio.
Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order of
the Commission, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, regulation or
order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first written above.
The RISA Investment Trust RISA Investment Advisers, LLC
By: By:
--------------------------- ---------------------------
Name: Name:
Title: Title:
Schedule A
to the
Investment Advisory Agreement
between
THE RISA INVESTMENT TRUST
and
KEARSARGE CONSULTING, LLC
Pursuant to Article 4, the Trust shall pay the Adviser compensation at an annual
rate as follows:
The RISA Fund 1.25%
