Exhibit 99.(d)(i)
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT
AMENDED AND RESTATED INVESTMENT ADVISORY AGREEMENT made this 1st day of
November, 2004 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%
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%
Focus Equity Portfolio 0.80%
Global Value Equity Portfolio 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
PORTFOLIO CONTRACTUAL RATE OF ADVISORY FEES
--------- ---------------------------------
daily net assets exceeding $3.5 billion but not exceeding
$4.5 billion; 0.545% of the daily net assets exceeding $4.5
billion.
Global Franchise 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.
Gold Portfolio 1.00%
International Equity Portfolio 0.80%
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%
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.
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 XXXXXX XXXXXXX
MANAGEMENT INC. INSTITUTIONAL FUND, INC.
By: /s/ Xxxxxxxx X. Xxxxx By: Xxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
