AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT made
this 1st day of June,
2005 by and between Xxxxxx Xxxxxxx Institutional Fund,
Inc., a Maryland
corporation (the "Fund"), and Xxxxxx Xxxxxxx Investment
Management Inc.
(formerly, Xxxxxx Xxxxxxx Asset Management Inc.), a
Delaware corporation
(the "Adviser").
RECITALS
WHEREAS, the Fund entered into an Investment Advisory
Agreement to provide
investment advisory services with the Adviser,
effective as of May 1, 1997,
as amended (the "Current Investment Advisory Agreement");
and
WHEREAS, this Agreement amends and restates, in its
entirety, the Current
Investment Advisory Agreement to reduce the fee
payable with respect to
certain portfolios of the Fund under this Agreement;
AGREEMENTS
Now, Therefore, the Fund and the Adviser agree as
follows:
1.Duties of Adviser. The Fund hereby appoints the
Adviser to act as
investment adviser to the Fund's Active International
Allocation Portfolio,
China Growth Portfolio, Emerging Markets Debt Portfolio,
Emerging Markets
Portfolio, Equity Growth Portfolio, European Real Estate
Portfolio, Focus
Equity Portfolio, Global Franchise Portfolio, Global
Value Equity Portfolio,
Gold Portfolio,International Equity Portfolio,
International Magnum Portfolio,
International Small Cap Portfolio, Large Cap
Relative Value Portfolio,
MicroCap Portfolio, Money Market Portfolio,
Mortgage-Backed Securities
Portfolio,Municipal Bond Portfolio, Municipal
Money Market Portfolio, Small
Company Growth Portfolio, U.S. Equity Plus Portfolio,
U.S. Real Estate
Portfolio and Value Equity Portfolio and such other
portfolios as may be
offered by the Fund (collectively, the "Portfolios"),
for the period and on
such terms set forth in this Agreement. The Fund
employs the Adviser to
manage the investment and reinvestment of the
assets of the Fund's
Portfolios, to continuously review, supervise and
administer the investment
program of each of the Portfolios, to determine in
its discretion the
securities to be purchased or sold and the portion
of each such Portfolio's
assets to be held uninvested, to provide the Fund
with records concerning the
Adviser's activities which the Fund is required to
maintain, and to render
regular reports to the Fund's officers and Board of
Directors concerning the
Adviser's discharge of the foregoing responsibilities.
The Adviser shall
discharge the foregoing responsibilities subject
to the control of the
officers and the Board of Directors of the Fund,
and in compliance with
the objectives, policies and limitations set
forth in the Fund's prospectus
and applicable laws and regulations. The Adviser
accepts such employment
and agrees to render the services and to provide,
at its own expense, the
office space, furnishings and equipment and the
personnel required by it
to perform the services on the terms and for the
compensation provided
herein.
2.Portfolio Transactions. The Adviser is
authorized to select the
brokers or dealers that will execute the
purchases and sales of securities
for each of the Fund's Portfolios and is
directed to use its best efforts
to obtain the best available price and most
favorable execution, except as
prescribed herein. Unless and until otherwise
directed by the Board of
Directors of the Fund, the Adviser may also be
authorized to effect
individual securities transactions at commission
rates in excess of the
minimum commission rates available, if the
Adviser determines in good
\faith that such amount of commission is
reasonable in relation to the
value of the brokerage or research services
provided by such broker or
dealer,
viewed in terms of either that particular transaction
or the Adviser's
overall responsibilities with respect to the Fund.
The execution of
such transactions shall not be deemed to represent an
unlawful act or
breach of any duty created by this Agreement or
otherwise. The Adviser
will promptly communicate to the officers and
Directors of the Fund such
information relating to portfolio transactions as
they may reasonably
request.
3.Compensation of the Adviser. For the services to
be rendered
by the Adviser as provided in Section 1 of this
Agreement, the Fund shall
pay to the Adviser at the end of each of the Fund's
fiscal quarters, an
advisory fee calculated by applying a quarterly rate,
based on the
following annual percentage rates, to each Portfolio's
average daily net
assets for the quarter:
Portfolio Contractual Rate of Advisory Fees
Active International Allocation Portfolio 0.65% of
the portion of
the daily net assets not exceeding $1 billion;0.60% of
the portion of
the daily net assets exceeding $1 billion.
China Growth Portfolio 1.25%
Emerging Markets Debt Portfolio 0.75% of the portion
of the daily net
assets not exceeding $500 million; 0.70% of the portion
of the daily net
assets exceeding $500 million but not exceeding $1
billion; 0.65% of the
portion of the daily net assets exceeding $1 billion.
Emerging Markets Portfolio 1.25% of the portion of the
daily net
assets not exceeding $500 million; 1.20% of the portion of
the daily net
assets exceeding $500 million but not exceeding $1 billion;
1.15% of the
portion of the daily net assets exceeding $1 billion but
not exceeding
$2.5 billion; 1.00% of the daily net assets exceeding $2.5
billion.
Equity Growth Portfolio 0.50% of the portion of the daily
net assets not
exceeding $1 billion; 0.45% of the portion of the daily net
assets
exceeding $1 billion but not exceeding $2 billion;
0.40% of the portion
of the daily net assets exceeding $2 billion but not
exceeding $3 billion;
0.35% of the portion of the daily net assets exceeding
$3 billion.
European Real Estate Portfolio 0.80%
Global Franchise Portfolio
Global Value Equity Portfolio
0.80% of the portion of the daily net assets not
exceeding $500
million; 0.75% of the portion of the daily net assets
exceeding $500
million but not exceeding $1 billion; 0.70% of the
portion of the daily
net assets exceeding $1 billion.
0.67% of the portion of the daily net assets not
exceeding $1 billion;
0.645% of the portion of the daily net assets
exceeding $1 billion but
not exceeding $1.5 billion; 0.62% of the portion of
the daily net assets
exceeding $1.5 billion but not exceeding $2.5 billion;
0.595% of the
portion of the daily net assets exceeding $2.5 billion
but not exceeding
$3.5 billion; 0.57% of the portion of the daily net
assets exceeding $3.5
billion but not exceeding $4.5 billion; 0.545% of the
daily net assets
exceeding $4.5 billion.
Gold Portfolio 1.00%
International Equity Portfolio 0.80% of the portion
of the daily net
assets not exceeding $10 billion; 0.75% of the portion
of the daily net
assets exceeding $10 billion.
International Magnum Portfolio 0.80% of the portion of
the daily net
assets not exceeding $500 million; 0.75% of the portion
of the daily net
assets exceeding $500 million but not exceeding $1
billion; 0.70% of the
portion of the daily net assets exceeding $1 billion.
International Small Cap Portfolio 0.95% of the portion
of the daily
net assets not exceeding $1.5 billion; 0.90% of the
portion of the daily
net assets exceeding $1.5 billion.
Large Cap Relative Value Portfolio 0.50%
MicroCap Portfolio 1.00%
Money Market Portfolio 0.30%
Mortgage Backed Securities Portfolio 0.35%
Municipal Bond Portfolio 0.35%
Municipal Money Market Portfolio 0.30%
Small Company Growth Portfolio 0.92% of the portion of
the daily net
assets not exceeding $1 billion; 0.85% of the portion
of the daily net
assets exceeding $1 billion but not exceeding $1.5
billion; 0.80% of the
portion of the daily net assets exceeding $1.5 billion.
U.S. Equity Plus Portfolio 0.45%
U.S. Real Estate Portfolio 0.80% of the portion of the
daily net
assets not exceeding $500 million; 0.75% of the portion
of the daily net
assets exceeding $500 million but not exceeding $1
billion;0.70% of the
portion of the daily net assets exceeding $1 billion.
Value Equity Portfolio 0.50% of the portion of the
daily net assets not
exceeding $150 million; 0.45% of the portion of the
daily net assets
exceeding $150 million but not exceeding $250 million;
0.40% of the portion
of the daily net assets exceeding $250 million but not
exceeding $350
million;0.35% of the portion of the daily net assets
exceeding $350 million.
In the event of termination of this Agreement, the fee
provided in this
Section shall be computed on the basis of the period
ending on the last
business day on which this Agreement is in effect
subject to a pro rata
\adjustment based on the number of days elapsed in
the current fiscal
quarter as a percentage of the total number of days
in such quarter.
4. Other Services. At the request of the Fund, the
Adviser in its
discretion may make available to the Fund office
facilities, equipment,
personnel and other services. Such office facilities,
equipment, personnel
and services shall be provided for or rendered by the
Adviser and billed to
the Fund at the Adviser's cost.
5. Reports. The Fund and the Adviser agree to furnish
to each other
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.
6. Status of Adviser. The services of the Adviser to
the Fund are not
to be deemed exclusive, and the Adviser shall be free
to render similar
services to others.
7. Liability of Adviser. In the absence of (i) willful
misfeasance, bad
faith or gross negligence on the part of the Adviser
in performance of its
obligations and duties hereunder, (ii) reckless
disregard by the Adviser of
its obligations and duties hereunder, or (iii) a
loss resulting from a breach
of fiduciary duty with respect to the receipt of
compensation for services
(in which case any award of damages shall be
limited to the period and the
amount set forth in Section 36(b)(3) of the Investment
Company Act of 1940
("1940 Act"), the Adviser shall not be subject to any
liability whatsoever
to the Fund, or to any shareholder of the Fund, for
any error or judgment,
mistake of law or any other act or omission in the
course of, or connected
with, rendering services hereunder including, without
limitation, for any
losses that may be sustained in connection with the
purchase, holding,
redemption or sale of any security on behalf of any
Portfolio of the Fund.
8.Permissible Interests. Subject to and in accordance
with the Articles
of Incorporation of the Fund and the Certificate of
Incorporation of the
Adviser,Directors, officers, agents and shareholders of
the Fund are or may
be interested in the Adviser (or any successor thereof)as
Directors,officers,
agents, shareholders or otherwise;Directors, officers,
agents and shareholders
of the Adviser are or may be interested in the Fund as
Directors, officers,
shareholders or otherwise; and the Adviser (or any successor)
is or may be
interested in the Fund as a shareholder or otherwise;
and that the effect of
any such interrelationships shall be governed by said
Articles of
Incorporation, Certificate of Incorporation and the
provisions of the 1940
Act.
9.Duration and Termination. This Agreement,unless sooner
terminated as
provided herein, shall continue so long as such continuance
is specifically
approved at least annually (a) by the vote of a majority
of those members of
the Board of Directors of the Fund 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
Board of Directors of
the Fund or by vote of a majority of the outstanding
voting securities of
each Portfolio of the Fund; provided however, that if
the holders of any
Portfolio fail to approve the Agreement as provided
herein, the Adviser may
continue to serve in such capacity in the manner and
to the extent permitted
by the 1940 Act and Rules thereunder. This Agreement
may be terminated by
any Portfolio of the Fund at any time, without the
payment of any penalty,
by vote of a majority of the entire Board of Directors
of the Fund or by vote
of a majority of the outstanding voting securities of the
Portfolio on 60 days'
written notice to the Adviser. This Agreement may be
terminated by the Adviser
at any time, without the payment of any penalty,
upon 90 days' written notice
to the Fund. This agreement will automatically and
immediately terminate in
the event of its assignment, provided that an
assignment to a corporate
successor to all or substantially all of the
Adviser's business or to a wholly
owned subsidiary of such corporate successor which
does not result in a change
of actual control of the Adviser's business shall
not be deemed to be an
assignment for the purposes of this Agreement.
Any notice under this Agreement
shall be given in writing, addressed and delivered
or mailed postpaid, to the
other party at any office of such party and shall be
deemed given when received
by the addressee.
As used in this Section 9, the terms "assignment," "interested persons,
" and
"a vote of a majority of the outstanding voting securities"
shall have the
respective meanings set forth in Section 2(a)(4), Section 2(a)(19)
and Section
2(a)(42) of the 1940 Act.
10.Amendment of Agreement. This Agreement may be
amended by mutual
consent, but the consent of the Fund must be approved
(a) by vote of a majority
of those members of the Board of Directors of the Fund 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 amendment,
and (b) by vote of
a majority of the outstanding voting securities of each
Portfolio of the Fund.
11.Use of Name. The Fund agrees that if this Agreement is
terminated and the
Adviser shall no longer be the adviser to the Fund, the
Fund will, within a
reasonable period of time,change its name to delete
reference to "Xxxxxx Xxxxxxx."
12.Severability. If any provisions 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.
13. Applicable Law. This Agreement shall be construed 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.
14. Counterparts. This Agreement may be executed in one
or more counterparts,
each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed
by their officers thereunto duly authorized as of the
day and year first written
above.
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC.
By:
Name:
Title: XXXXXX XXXXXXX INSTITUTIONAL FUND, INC.
By:
Name:
Title:
