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
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 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.
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: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
XXXXXX XXXXXXX
INSTITUTIONAL FUND,
INC.
By: /s Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President and
Principal Executive
Officer
SCHEDULE A
As of December 13, 2016
PORTFOLIO
EFFECTIVE
DATE OF
AGREEMENT
AND ANY
AMENDMENTS
ENTERED INTO
PRIOR TO JUNE
30, 2009
CONTRACTUAL
RATE OF
ADVISORY FEES
Active
International
Allocation
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
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.
Advantage
Portfolio
Asia
Opportunity
Portfolio
Effective Date:
12/10/09
Effective Date:
09/17/15
0.65% of the
portion of the daily
net assets not
exceeding $750
million; 0.60% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.55%
of the portion of
the daily net assets
exceeding $1.5
billion.
0.80% of the
portion of the daily
net assets not
exceeding $750
million; 0.75% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.70%
of the portion of
the daily net assets
exceeding $1.5
billion.
Emerging
Markets
Breakout
Nations
Portfolio
Effective Date:
12/13/16
0.90% 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.
Emerging
Markets Fixed
Income
Opportunities
Portfolio
Effective Date:
03/01/12
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; and 0.65%
of the portion of
the daily net assets
exceeding $1
billion.
Emerging
Markets Leaders
Portfolio
Effective Date:
09/17/14
0.90% of the
portion of the daily
net assets not
exceeding $1
billion; and 0.85%
of the portion of
the daily net assets
exceeding $1
billion.
Emerging
Markets
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
0.85% 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 but not
exceeding $2.5
billion; and 0.65%
of the daily net
assets exceeding
$2.5 billion.
Emerging
Markets Small
Cap Portfolio
Effective Date:
09/17/15
1.25% of daily net
assets.
Fundamental
Multi-Cap Core
Portfolio
Effective Date:
05/11/16
0.65% of the
portion of the daily
net assets not
exceeding $750
million; 0.60% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.55%
of the portion of
the
daily net assets
exceeding $1.5
billion.
Frontier
Emerging
Markets
Portfolio
Effective Date:
04/25/12
1.25% of daily net
assets.
Global
Advantage
Portfolio
Effective Date:
12/08/10
0.80% of the
portion of the daily
net assets not
exceeding $1
billion; and 0.75%
of the portion of
the daily net assets
exceeding $1
billion.
Global
Concentrated
Portfolio
Effective Date:
05/11/16
0.75% of the
portion of the daily
net assets not
exceeding $750
million; 0.70% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.65%
of
the portion of the
daily assets
exceeding $1.5
billion.
Global Core
Portfolio
Effective Date:
05/11/16
0.75% of the
portion of the daily
net assets not
exceeding $750
million; 0.70% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.65%
of the portion of
the daily assets
exceeding $1.5
billion.
Global
Discovery
Portfolio
Effective Date:
12/08/10
0.90% of the
portion of the daily
net assets not
exceeding $1
billion; and 0.85%
of the portion of
the daily net assets
exceeding $1
billion.
Global
Franchise
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
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.
Global
Infrastructure
Portfolio
Effective Date:
06/18/10
0.85% of daily net
assets.
Global Insight
Portfolio
Effective Date:
09/28/11
1.00% of the
portion of the daily
net assets not
exceeding $1
billion; and 0.95%
of the portion of
the daily net assets
exceeding $1
billion.
Global
Opportunity
Portfolio
Effective Date:
12/10/09
0.80% of the
portion of the daily
net assets not
exceeding $750
million; 0.75% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.70%
of the portion of
the daily net assets
exceeding $1.5
billion.
Global Quality
Portfolio
Effective Date:
05/30/13
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; and 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 the
portion of the daily
net assets not
exceeding $2.5
billion; and 0.80%
of the portion of
the daily net assets
exceeding $2.5
billion.
Growth
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
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.
Insight Portfolio
Effective Date:
09/28/11
0.80% of the
portion of the daily
net assets not
exceeding $750
million; 0.75% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.70%
of the portion of
the daily net assets
exceeding $1.5
billion.
International
Advantage
Portfolio
Effective Date:
12/08/10
0.80% of the
portion of the daily
net assets not
exceeding $1
billion; and 0.75%
of the portion of
the daily net assets
exceeding $1
billion.
International
Equity Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
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
Opportunity
Portfolio
Effective Date:
12/10/09
0.80% of the
portion of the daily
net assets not
exceeding $1
billion; 0.75% of
the portion of the
daily net assets
exceeding $1
billion.
International
Real Estate
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
0.80% of daily net
assets.
Multi-Asset
Portfolio
Effective Date:
03/01/12
0.85% of the
portion of the daily
net assets not
exceeding $750
million; 0.80% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.75%
of the portion of
the daily net assets
exceeding $1.5
billion.
Small Company
Growth
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
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 but not
exceeding $2
billion; and 0.75%
of the portion of
the daily net assets
exceeding $2
billion.
US Core
Portfolio
Effective Date:
05/11/16
0.60% of the
portion of the daily
net assets not
exceeding $750
million; 0.55% of
the portion of the
daily net assets
exceeding $750
million but not
exceeding $1.5
billion; and 0.50%
of the portion of
the daily assets
exceeding $1.5
billion.
U.S. Real Estate
Portfolio
Effective Date:
05/01/97
Amendments:
11/01/04,
06/01/05
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.
11
Sch. A-1
AMR #120045-v2A
