MANAGEMENT AGREEMENT
This MANAGEMENT AGREEMENT ("Agreement") is made this 22nd day
of December, 2006, by and between Institutional Portfolio (the
"Trust" and Xxxx Xxxxx Partners Fund Advisor, LLC, a Delaware
limited liability company (the "Manager").
WHEREAS, the Trust is registered as a management investment
company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Manager is engaged primarily in rendering
investment advisory, management and administrative services and
is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended;
WHEREAS, the Trust wishes to retain the Manager to provide
investment advisory, management, and administrative services to
the Trust with respect to the series of the Trust designated in
Schedule A annexed hereto (the "Fund"); and
WHEREAS, the Manager is willing to furnish such services on
the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed as follows:
1. The Trust hereby appoints the Manager to act as
investment adviser and administrator of the Fund for the period
and on the terms set forth in this Agreement. The Manager
accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. The Fund shall at all times keep the Manager fully
informed with regard to the securities owned by it, its funds
available, or to become available, for investment, and generally
as to the condition of its affairs. It shall furnish the Manager
with such other documents and information with regard to its
affairs as the Manager may from time to time reasonably request.
3. (a) Subject to the supervision of the Trust's Board of
Trustees (the "Board"), the Manager shall regularly provide the
Fund with investment research, advice, management and supervision
and shall furnish a continuous investment program for the Fund's
portfolio of securities and other investments consistent with the
Fund's investment objectives, policies and restrictions, as
stated in the Fund's current Prospectus and Statement of
Additional Information. The Manager shall determine from time to
time what securities and other investments will be purchased
(including, as permitted in accordance with this paragraph, swap
agreements, options and futures), retained, sold or exchanged by
the Fund and what portion of the assets of the Fund's portfolio
will be held in the various securities and other investments in
which the Fund invests, and shall implement those decisions
(including the execution of investment documentation), all
subject to the provisions of the Trust's Declaration of Trust and
By-Laws (collectively, the "Governing Documents"), the 1940 Act,
and the applicable rules and regulations promulgated thereunder
by the Securities and Exchange Commission (the "SEC") and
interpretive guidance issued thereunder by the SEC staff and any
other applicable federal and state law, as well as the investment
objectives, policies and restrictions of the Fund referred to
above, and any other specific policies adopted by the Board and
disclosed to the Manager. The Manager is authorized as the agent
of the Trust to give instructions to the custodian of the Fund as
to deliveries of securities and other investments and payments of
cash for the account of the Fund. Subject to applicable
provisions of the 1940 Act and direction from the Board, the
investment program to be provided hereunder may entail the
investment of all or substantially all of the assets of the Fund
in one or more investment companies. The Manager will place
orders pursuant to its investment determinations for the Fund
either directly with the issuer or with any broker or dealer,
foreign currency dealer, futures commission merchant or others
selected by it. In connection with the selection of such brokers
or dealers and the placing of such orders, subject to applicable
law, brokers or dealers may be selected who also provide
brokerage and research services (as those terms are defined in
Section 28(e) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) to the Funds and/or the other accounts over
which the Manager or its affiliates exercise investment
discretion. The Manager is authorized to pay a broker or dealer
who provides such brokerage and research services a commission
for executing a portfolio transaction for the Fund which is in
excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if the Manager
determines in good faith that such amount of commission is
reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer. This determination
may be viewed in terms of either that particular transaction or
the overall responsibilities which the Manager and its affiliates
have with respect to accounts over which they exercise investment
discretion. The Board may adopt policies and procedures that
modify and restrict the Manager's authority regarding the
execution of the Fund's portfolio transactions provided herein.
The Manager shall also provide advice and recommendations with
respect to other aspects of the business and affairs of the Fund,
shall exercise voting rights, rights to consent to corporate
action and any other rights pertaining to the Fund's portfolio
securities subject to such direction as the Board may provide,
and shall perform such other functions of investment management
and supervision as may be directed by the Board. The Manager may
execute on behalf of the Fund certain agreements, instruments and
documents in connection with the services performed by it under
this Agreement. These may include, without limitation, brokerage
agreements, clearing agreements, account documentation, futures
and options agreements, swap agreements, other investment related
agreements, and any other agreements, documents or instruments
the Manager believes are appropriate or desirable in performing
its duties under this Agreement.
(b) Subject to the direction and control of the Board, the
Manager shall perform such administrative and management services
as may from time to time be reasonably requested by the Fund as
necessary for the operation of the Fund, such as (i) supervising
the overall administration of the Fund, including negotiation of
contracts and fees with and the monitoring of performance and
xxxxxxxx of the Fund's transfer agent, investor servicing agents,
custodian and other independent contractors or agents, (ii)
providing certain compliance, fund accounting, regulatory
reporting, and tax reporting services, (iii) preparing or
participating in the preparation of Board materials, registration
statements, proxy statements and reports and other communications
to investors, (iv) maintaining the Fund's existence, and (v)
during such times as beneficial interests are publicly offered,
maintaining the registration and qualification of the Fund's
beneficial interests under federal and state laws.
Notwithstanding the foregoing, the Manager shall not be deemed to
have assumed any duties with respect to, and shall not be
responsible for, the distribution of interests in any Fund, nor
shall the Manager be deemed to have assumed or have any
responsibility with respect to functions specifically assumed by
any transfer agent, fund accounting agent, custodian, investor
servicing agent or other agent, in each case employed by the Fund
to perform such functions.
(c) The Fund hereby authorizes any entity or person
associated with the Manager which is a member of a national
securities exchange to effect any transaction on the exchange for
the account of the Fund which is permitted by Section 11(a) of
the Exchange Act and Rule 11a2-2(T) thereunder, and the Fund
hereby consents to the retention of compensation for such
transactions in accordance with Rule 11a2-2(T)(a)(2)(iv).
Notwithstanding the foregoing, the Manager agrees that it will
not deal with itself, or with members of the Board or any
principal underwriter of the Fund, as principals or agents in
making purchases or sales of securities or other property for the
account of the Fund, nor will it purchase any securities from an
underwriting or selling group in which the Manager or its
affiliates is participating, or arrange for purchases and sales
of securities between the Fund and another account advised by the
Manager or its affiliates, except in each case as permitted by
the 1940 Act and in accordance with such policies and procedures
as may be adopted by the Fund from time to time, and will comply
with all other provisions of the Governing Documents and the
Fund's then-current Prospectus and Statement of Additional
Information relative to the Manager and its directors and
officers.
4. Subject to the Board's approval, the Manager or the Fund
may enter into contracts with one or more investment subadvisers
or subadministrators, including without limitation, affiliates of
the Manager, in which the Manager delegates to such investment
subadvisers or subadministrators any or all its duties specified
hereunder, on such terms as the Manager will determine to be
necessary, desirable or appropriate, provided that in each case
the Manager shall supervise the activities of each such
subadviser or subadministrator and further provided that such
contracts impose on any investment subadviser or subadministrator
bound thereby all the conditions to which the Manager is subject
hereunder and that such contracts are entered into in accordance
with and meet all applicable requirements of the 1940 Act.
5. (a) The Manager, at its expense, shall supply the
Board and officers of the Trust with all information and reports
reasonably required by them and reasonably available to the
Manager and shall furnish the Fund with office facilities,
including space, furniture and equipment and all personnel
reasonably necessary for the operation of the Fund. The Manager
shall oversee the maintenance of all books and records with
respect to the Fund's securities transactions and the keeping of
the Fund's books of account in accordance with all applicable
federal and state laws and regulations. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, the Manager hereby
agrees that any records that it maintains for the Fund are the
property of the Fund, and further agrees to surrender promptly to
the Fund any of such records upon the Fund's request. The
Manager further agrees to arrange for the preservation of the
records required to be maintained by Rule 31a-1 under the 1940
Act for the periods prescribed by Rule 31a-2 under the 1940 Act.
The Manager shall authorize and permit any of its directors,
officers and employees, who may be elected as Board members or
officers of the Fund, to serve in the capacities in which they
are elected.
(b) The Manager shall bear all expenses, and shall furnish
all necessary services, facilities and personnel, in connection
with its responsibilities under this Agreement. Other than as
herein specifically indicated, the Manager shall not be
responsible for the Fund's expenses, including, without
limitation, advisory fees; distribution fees; interest; taxes;
governmental fees; voluntary assessments and other expenses
incurred in connection with membership in investment company
organizations; organization costs of the Fund; the cost
(including brokerage commissions, transaction fees or charges, if
any) in connection with the purchase or sale of the Fund's
securities and other investments and any losses in connection
therewith; fees and expenses of custodians, transfer agents,
registrars, independent pricing vendors or other agents; legal
expenses; loan commitment fees; expenses relating to certificates
representing beneficial interests; expenses relating to the
issuing and redemption or repurchase of the Fund's beneficial
interests and servicing investor accounts; expenses of
registering and qualifying the Fund's beneficial interests for
sale under applicable federal and state law; expenses of
preparing, setting in print, printing and distributing
prospectuses and statements of additional information and any
supplements thereto, reports, proxy statements, notices and
distributions to investors in the Fund; costs of stationery;
website costs; costs of meetings of the Board or any committee
thereof, meetings of investors and other meetings of the Fund;
Board fees; audit fees; travel expenses of officers, members of
the Board and employees of the Fund, if any; and the Fund's pro
rata portion of premiums on any fidelity bond and other insurance
covering the Fund and its officers, Board members and employees;
litigation expenses and any non-recurring or extraordinary
expenses as may arise, including, without limitation, those
relating to actions, suits or proceedings to which the Fund is a
party and the legal obligation which the Fund may have to
indemnify the Fund's Board members and officers with respect
thereto.
6. No member of the Board, officer or employee of the Trust
or Fund shall receive from the Trust or Fund any salary or other
compensation as such member of the Board, officer or employee
while he is at the same time a director, officer, or employee of
the Manager or any affiliated company of the Manager, except as
the Board may decide. This paragraph shall not apply to Board
members, executive committee members, consultants and other
persons who are not regular members of the Manager's or any
affiliated company's staff.
7. The Fund shall not pay the Manager any fee hereunder.
The Manager acknowledges and agrees that the Fund is an integral
part of separately managed account programs, and that the Manager
will be compensated directly or indirectly by separately managed
account sponsors for services rendered hereunder. The Manager
acknowledges and agrees that such compensation is sufficient
consideration hereunder.
8. The Manager assumes no responsibility under this
Agreement other than to render the services called for hereunder,
in good faith, and shall not be liable for any error of judgment
or mistake of law, or for any loss arising out of any investment
or for any act or omission in the execution of securities
transactions for the Fund, provided that nothing in this
Agreement shall protect the Manager against any liability to the
Fund to which the Manager would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the
performance of its duties or by reason of its reckless disregard
of its obligations and duties hereunder. As used in this Section
8, the term "Manager" shall include any affiliates of the Manager
performing services for the Trust or the Fund contemplated hereby
and the partners, investors, directors, officers and employees of
the Manager and such affiliates.
9. Nothing in this Agreement shall limit or restrict the
right of any director, officer, or employee of the Manager who
may also be a Board member, officer, or employee of the Trust or
the Fund, to engage in any other business or to devote his time
and attention in part to the management or other aspects of any
other business, whether of a similar nature or a dissimilar
nature, nor to limit or restrict the right of the Manager to
engage in any other business or to render services of any kind,
including investment advisory and management services, to any
other fund, firm, individual or association. If the purchase or
sale of securities consistent with the investment policies of the
Fund or one or more other accounts of the Manager is considered
at or about the same time, transactions in such securities will
be allocated among the accounts in a manner deemed equitable by
the Manager. Such transactions may be combined, in accordance
with applicable laws and regulations, and consistent with the
Manager's policies and procedures as presented to the Board from
time to time.
10. For the purposes of this Agreement, the terms
"assignment," "interested person," and "majority of the
outstanding voting securities" shall have the meanings given to
them by Section 2(a) of the 1940 Act, subject to such exemptions
as may be granted by the SEC by any rule, regulation or order.
11. This Agreement will become effective with respect to the
Fund on the date set forth opposite the Fund's name on Schedule A
annexed hereto, provided that it shall have been approved by the
Trust's Board and by the investors in the Fund in accordance with
the requirements of the 1940 Act and, unless sooner terminated as
provided herein, will continue in effect for an initial two year
term. Thereafter, if not terminated, this Agreement shall
continue in effect with respect to the Fund, so long as such
continuance is specifically approved at least annually (i) by the
Board or (ii) by a vote of a majority of the outstanding voting
securities of the Fund, provided that in either event the
continuance is also approved by a majority of the Board members
who are not interested persons of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting
on such approval.
12. This Agreement is terminable with respect to the Fund
without penalty by the Board or by vote of a majority of the
outstanding voting securities of the Fund, in each case on not
more than 60 days' nor less than 30 days' written notice to the
Manager, or by the Manager upon not less than 90 days' written
notice to the Fund, and will be terminated upon the mutual
written consent of the Manager and the Trust. This Agreement
shall terminate automatically in the event of its assignment by
the Manager and shall not be assignable by the Trust without the
consent of the Manager.
13. The Manager agrees that for services rendered to the
Fund, or for any claim by it in connection with services rendered
to the Fund, it shall look only to assets of the Fund for
satisfaction and that it shall have no claim against the assets
of any other portfolios of the Trust. The undersigned officer of
the Trust has executed this Agreement not individually, but as an
officer under the Trust's Declaration of Trust and the
obligations of this Agreement are not binding upon any of the
Trustees, officers or investors of or in the Trust individually.
14. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, and no
material amendment of the Agreement shall be effective until
approved, if so required by the 1940 Act, by vote of the holders
of a majority of the Fund's outstanding voting securities.
15. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all
prior agreements and understandings relating to the subject
matter hereof. Should any part of this Agreement be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. This
Agreement shall be binding on and shall inure to the benefit of
the parties hereto and their respective successors.
16. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the
State of New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly
authorized.
INSTITUTIONAL PORTFOLIO
By:
Name:
Title:
XXXX XXXXX PARTNERS FUND ADVISOR,
LLC
By:
Name:
Title:
Schedule A
SMASh SERIES C PORTFOLIO Date:
9
DCDOCS/672545.2
DCDOCS/672545.2
