Exhibit (d-2)
THE XXXXX INSTITUTIONAL FUNDS
XXXXX LARGECAP GROWTH INSTITUTIONAL FUND
AMENDED & RESTATED
INVESTMENT MANAGEMENT AGREEMENT
September 12, 2006
Xxxx Xxxxx Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The Xxxxx Institutional Funds (the "Fund"), an unincorporated business
trust organized under the laws of the Commonwealth of Massachusetts, on behalf
of its Xxxxx LargeCap Growth Institutional Fund (the "Portfolio") has previously
entered into an Investment Management Agreement dated as of October 15, 1993
(the ("Original Agreement") with you ("Xxxxx Management"). The parties hereto
desire to amend and restate the Original Agreement to remove Fund administrative
responsibilities to a separate Fund administration agreement between the Fund,
acting on behalf of the Portfolio, and Xxxxx Management. Accordingly, the Fund
hereby confirms the Original Agreement, as amended hereby, as follows:
1. INVESTMENT DESCRIPTION; APPOINTMENT
The Fund desires to employ the capital of the Portfolio by investing
and reinvesting in investments of the kind and in accordance with the
limitations specified in its Agreement and Declaration of Trust and in
its Prospectus and Statement of Additional Information, as from time to
time in effect, and in such manner and to such extent as may from time
to time be approved by the Board of Trustees of the Fund. Copies of the
Fund's Prospectus, Statement of Additional Information and Agreement
and Declaration of Trust, as each may from time to time be amended,
have been or will be submitted to Xxxxx Management. The Fund desires to
employ and hereby appoints Xxxxx Management to act as the investment
manager for the Portfolio. Xxxxx Management accepts the appointment and
agrees to furnish the services for the compensation set forth below.
2. SERVICES AS INVESTMENT MANAGER
Subject to the supervision and direction of the Board of Trustees of
the Fund, Xxxxx Management will (a) act in strict conformity with the
Fund's Agreement and Declaration of Trust, the Investment Company Act
of 1940 (the "Act") and the Investment Advisers Act of 1940, as the
same may from time to time be amended; (b) manage the Portfolio in
accordance with the Portfolio's investment objective and policies as
stated in the Fund's Prospectus and Statement of Additional Information
as from time to time in effect; (c) make general investment decisions
for the Portfolio involving decisions concerning (i) the specific types
of securities to be held by the Portfolio and the proportion of the
Portfolio's assets that should be allocated to such investments during
particular market cycles and (ii) the specific issuers whose securities
will be purchased or sold by the Portfolio; and (d) supply statistical
and research data; and general assistance in all aspects of the Fund's
operations with respect to the Portfolio. In providing those services,
Xxxxx Management will supervise the Portfolio's
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investments generally and conduct a continual program of evaluation of
the Portfolio's assets.
In connection with the performance of its duties under this Agreement,
it is understood that Xxxxx Management may from time to time employ or
associate with itself such person or persons as Xxxxx Management may
believe to be particularly fitted to assist it in the performance of
this Agreement, it being understood that the compensation of such
person or persons shall be paid by Xxxxx Management and that no
obligation may be incurred on the Fund's behalf in any such respect.
3. BROKERAGE
In executing transactions for the Portfolio and selecting brokers or
dealers, Xxxxx Management will use its best efforts to seek the best
overall terms available. In assessing the best overall terms available
for any Portfolio transactions, Xxxxx Management will consider all
factors it deems relevant including, but not limited to, 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 any commission for the specific transaction and on an
continuing basis. In selecting brokers or dealers to execute a
particular transaction and in evaluating the best overall terms
available, Xxxxx Management may 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 Xxxxx Management or an affiliate exercises investment
discretion.
4. INFORMATION PROVIDED TO THE FUND
Xxxxx Management will keep the Fund informed of developments materially
affecting the Portfolio, and will, on its own initiative, furnish the
Fund from time to time with whatever information Xxxxx Management
believes is appropriate for this purpose.
In compliance with the requirements of Rule 31a-3 under the Act, Xxxxx
Management hereby agrees that all records that it maintains for the
Fund in respect of the Portfolio are the property of the Fund and
further agrees to surrender promptly to the Fund any of such records
upon the Fund's request.
5. STANDARD OF CARE
Xxxxx Management shall exercise its best judgment in rendering the
services listed in paragraph 2 above. Xxxxx Management shall not be
liable for any error of judgment or mistake of law or for any loss
suffered by the Portfolio in connection with the matters to which this
Agreement relates, provided that nothing herein shall be deemed to
protect or purport to protect Xxxxx Management against any liability to
the Portfolio or to its shareholders to which Xxxxx Management would
otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence on its part in the performance of its duties or by
reason of Xxxxx Management's reckless disregard of its obligations and
duties under this Agreement.
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6. COMPENSATION
In consideration of the services rendered pursuant to this Agreement,
the Portfolio will pay Xxxxx Management on the first business day of
each month a fee for the previous month at the annual rate of .71 of
1.00% of the Portfolio's average daily net assets. The fee for the
period from the effective date of this Agreement to the end of the
month in which such date occurs shall be prorated according to the
proportion that such period bears to the full monthly period. Upon any
termination of this Agreement before the end of a month, the fee for
such part of that month shall be prorated according to the proportion
that such period bears to the full monthly period and shall be payable
upon the date of termination of this Agreement. For the purpose of
determining fees payable to Xxxxx Management, the value of the
Portfolio's net assets shall be computed at the times and in the manner
specified in the Fund's Prospectus and Statement of Additional
Information as from time to time in effect.
7. EXPENSES
Xxxxx Management will bear all expenses in connection with the
performance of its services under this Agreement. The Portfolio will
bear certain other expenses to be incurred in its operation, including:
taxes, interest, brokerage fees and commissions, if any; fees of
Trustees of the Fund who are not officers, directors or employees of
Xxxxx Management or any of its affiliates; SEC fees and state Blue Sky
qualification fees; charges of custodians and transfer and dividend
disbursing agents; charges of any independent pricing service retained
to assist in valuing the assets of the Portfolio; the Fund's
proportionate share of the insurance premiums; outside auditing and
legal expenses; costs of maintenance of the Fund's existence, costs
attributable to shareholder services, including, without limitation,
telephone and personnel expenses; costs of preparing and printing
prospectuses and statements of additional information for regulatory
purposes and for distribution to existing shareholders; costs of
shareholders' reports and meetings of the shareholders of the Fund and
of the officers or Board of Trustees of the Fund; and any extraordinary
expenses. Fund-wide expenses not specifically identifiable to the
Portfolio or any other portfolio of the Fund will be allocated to all
portfolios pro rata on the basis of their relative net assets.
8. REIMBURSEMENT TO THE PORTFOLIO
If in any fiscal year the aggregate expenses of the Portfolio
(including fees pursuant to this Agreement, but excluding interest,
taxes, brokerage expenses and distribution expenses and, if permitted
by state securities commissions, extraordinary expenses) exceed the
expense limitation imposed by any state having jurisdiction over the
Portfolio, Xxxxx Management will reimburse the Portfolio for such
excess expense. Such expense reimbursement, if any, will be estimated,
reconciled and paid on a monthly basis.
9. SERVICES TO OTHER COMPANIES OR ACCOUNTS
The Fund understands that Xxxxx Management now acts, will continue to
act and may act in the future as investment adviser to fiduciary and
other managed accounts and as investment manager to one or more other
investment companies (including other portfolios of the Fund), and the
Fund has no objection to Xxxxx Management so acting, provided that
whenever the Portfolio and one or more other accounts or investment
companies advised by Xxxxx Management have available funds for
investment,
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investments suitable and appropriate for each will be allocated in
accordance with a formula believed to be equitable to each entity. The
Fund recognizes that in some case this procedure may adversely affect
the size of the position obtainable for the Portfolio. In addition, the
Fund understands that the persons employed by Xxxxx Management to
assist in the performance of Xxxxx Management's duties hereunder will
not devote their full time to such service and nothing contained herein
shall be deemed to limit or restrict the right of Xxxxx Management or
any affiliate of Xxxxx Management to engage in and devote time and
attention to other businesses or to render services of whatever kind or
nature.
10. TERM OF AGREEMENT
This Agreement shall become effective as of the date first set firth
above and shall continue until October 15, 2007 and thereafter shall
continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Board
of Trustees of the Fund or (ii) a vote of a "majority" (as defined in
the Act) of the Portfolio's outstanding voting securities, provided
that in either event the continuance is also approved by a majority of
the Board of Trustees who are not "interested persons" (as defined in
the Act) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This
Agreement is terminable, without penalty, on sixty (60) days' written
notice, by the Board of Trustees of the Fund or by vote of holders of a
majority of the portfolio's outstanding voting securities, or upon
sixty (60) days' written notice, by Xxxxx Management. This Agreement
will also terminate automatically in the event of its assignment (as
defined in the Act and the rules thereunder).
11. REPRESENTATION BY THE FUND
The fund represents that a copy of its Agreement and Declaration of
Trust, dated July 14, 1993, together with all amendments thereto, is on
file in the office of the Secretary of the Commonwealth of
Massachusetts.
12. LIMITATION OF LIABILITY
This Agreement has been executed on behalf of the Fund in respect of
the Portfolio by the undersigned officer of the Fund in his capacity as
an officer of the Fund. The obligations of this Agreement shall be
binding on the assets and property of the Portfolio only and shall not
be binding on any other portfolio of the Fund or any Trustee, officer
or shareholder of the Fund individually.
13. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws (except the conflict-of-law rules) of the State of New York.
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If the foregoing is in accordance with your understanding, kindly indicate your
acceptance hereof by signing and returning the enclosed copy hereof.
Very truly yours,
THE XXXXX INSTITUTIONAL FUNDS
By: /s/ Xxx Xxxxxx
____________________________
Authorized Officer
Agreed and Accepted:
XXXX XXXXX MANAGEMENT, INC.
By: /s/ Xxx Xxxxxx
____________________________
Authorized Officer
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