Exhibit 77q-1
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT made this 30th day of
June, 2009 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, as of November 1, 2004, the Current Investment Advisory Agreement
was amended and restated (the "AMENDED INVESTMENT ADVISORY AGREEMENT") to reduce
the fee payable with respect to certain series of the Fund; and
WHEREAS, this Agreement amends and restates, in its entirety, the Amended
Investment Advisory Agreement to incorporate amendments thereto and to make
other ministerial changes designed to facilitate the administration of 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 series of the Fund set forth on Schedule A hereto, as
such Schedule A may be amended from time to time (each a "PORTFOLIO" and,
collectively, the "PORTFOLIOS"), for the period and on such terms as 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
AMR #120045-v2A
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 annual percentage rates
set forth on Schedule A to this Agreement attached hereto, to the average daily
net assets of each of the Portfolios for the quarter.
In the event of termination of this Agreement, the fee set forth in
Schedule A to this Agreement 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 in effect with respect to each Portfolio for a
period of up to one year from the effective date hereof (except with respect to
any Portfolio added to Schedule A of this Agreement after the date hereof, for
an initial period of two years from the date that such Portfolio is added) and
thereafter
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provided 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.
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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 XXXXXX XXXXXXX INSTITUTIONAL
MANAGEMENT INC. FUND, INC.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxxx
Title: Director Title: President and Principal
Executive Officer
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SCHEDULE A
AS OF JUNE 30, 2009
EFFECTIVE DATE OF AGREEMENT AND
ANY AMENDMENTS ENTERED INTO
PORTFOLIO PRIOR TO JUNE 30, 2009 CONTRACTUAL RATE OF ADVISORY FEES
------------------------------------- ------------------------------- ---------------------------------------
Active International Allocation Effective Date: 05/01/97 0.65% of the portion of the daily net
Portfolio Amendments: 11/01/04, 06/01/05 assets not exceeding $1 billion; 0.60%
of the portion of the daily net assets
exceeding $1 billion.
Capital Growth Portfolio Effective Date: 05/01/97 0.50% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
Emerging Markets Portfolio Effective Date: 05/01/97 1.25% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
Emerging Markets Debt Portfolio Effective Date: 05/01/97 0.75% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
Focus Growth Portfolio Effective Date: 05/01/97 0.50% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
Sch. A-1
EFFECTIVE DATE OF AGREEMENT AND
ANY AMENDMENTS ENTERED INTO
PORTFOLIO PRIOR TO JUNE 30, 2009 CONTRACTUAL RATE OF ADVISORY FEES
------------------------------------- ------------------------------- ---------------------------------------
Global Franchise Portfolio Effective Date: 05/01/97 0.80% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
Global Real Estate Portfolio Effective Date: 04/25/06 0.85% of daily net assets.
Global Value Equity Portfolio Effective Date: 05/01/97 0.67% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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
portion of the daily net assets
exceeding $4.5 billion.
International Equity Portfolio Effective Date: 05/01/97 0.80% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 assets not exceeding $10 billion; 0.75%
of the portion of the daily net assets
exceeding $10 billion.
International Growth Equity Portfolio Effective Date: 12/16/05 0.75% of the portion of the daily net
assets not exceeding $1 billion; and
0.70% of the portion of the daily net
assets exceeding $1 billion.
International Real Estate Portfolio Effective Date: 05/01/97 0.80% of daily net assets.
Amendments: 11/01/04, 06/01/05
International Small Cap Portfolio Effective Date: 05/01/97 0.95% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 assets not exceeding $1.5 billion;
0.90% of the portion of the daily net
assets exceeding $1.5 billion.
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EFFECTIVE DATE OF AGREEMENT AND
ANY AMENDMENTS ENTERED INTO
PORTFOLIO PRIOR TO JUNE 30, 2009 CONTRACTUAL RATE OF ADVISORY FEES
------------------------------------- ------------------------------- --------------------------------------
Large Cap Relative Value Portfolio Effective Date: 05/01/97 0.50% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
Small Company Growth Portfolio Effective Date: 05/01/97 0.92% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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. Real Estate Portfolio Effective Date: 05/01/97 0.80% of the portion of the daily net
Amendments: 11/01/04, 06/01/05 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.
U.S. Small/Mid Cap Value Portfolio Effective Date: 06/20/07 0.67% of daily net assets
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