Money Manager Agreement
Exhibit (d9)
This agreement (the “Money Manager Agreement”) is between TIFF Investment Program (“TIP”), a Delaware statutory trust, for its TIFF Multi-Asset Fund (the “Fund”), and Xxxxxxxxx Xxxxxx Asia Limited (the “Manager”), a registered investment adviser under the Investment Advisers Act of 1940, as amended (the “Advisers Act”) and is effective as of June 13, 2016 (the “Effective Date”).
Recitals
TIP is an open-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”); and
TIP wishes to retain the Manager to render advisory services to the Fund and the Manager is willing to render those services.
The parties therefore agree as follows:
| 1. | Managed Assets |
The Manager will provide investment management services with respect to assets placed with the Manager on behalf of the Fund from time to time. Such assets, as changed by investment, reinvestment, additions, disbursements of expenses, and withdrawals, are referred to in this Agreement as the “Managed Assets.” The Fund may make additions to or withdraw all or any portion of the Managed Assets from this management arrangement at any time.
| 2. | Appointment and Powers of Manager; Investment Approach |
(a) Appointment. TIP, acting on behalf of the Fund, hereby appoints the Manager to manage the Managed Assets for the period and on the terms set forth in this Agreement. The Manager hereby accepts this appointment and agrees to render the services herein described in accordance with the requirements described in Section 3(a).
(b) Powers. Subject to the supervision of the board of trustees of TIP and subject to the supervision of TIFF Advisory Services, Inc. (“TAS”) as Investment Adviser to the Fund, the Manager shall direct investment of the Managed Assets in accordance with the requirements of Section 3(a). TIP, acting on behalf of the Fund, grants the Manager authority to:
| (i) | acquire (by purchase, exchange, subscription, or otherwise), hold, and dispose of (by sale, exchange, or otherwise) securities and other investments and provide the necessary instructions on behalf of the Fund to brokers and custodians to effect the transactions; |
| (ii) | determine what portion of the Managed Assets will be held uninvested; and |
| (iii) | enter into such agreements and make such representations (including representations regarding the purchase of securities and other instruments for investment) as may be necessary or proper in connection with the performance by the Manager of its duties hereunder. |
(c) Power of Attorney. To enable the Manager to exercise fully the discretion granted hereunder, TIP appoints the Manager as its attorney-in-fact to invest, sell, and reinvest the Managed Assets as fully as TIP itself could do. The Manager hereby accepts this appointment.
(d) Voting. The Manager shall be authorized to vote on behalf of the Fund any proxies relating to the Managed Assets, provided, however, that the Manager shall comply with any instructions received from the Fund as to the voting of securities and handling of proxies.
(e) Independent Contractor. Except as expressly authorized herein, the Manager shall for all purposes be deemed to be an independent contractor and shall have no authority to act for or to represent TIP, the Fund, or TAS in any way, or otherwise to be an agent of any of them.
(f) Reporting. The Manager shall furnish to TIP upon reasonable request such information that TIP may reasonably require to complete documents, reports, or regulatory filings.
| 3. | Requirements; Duties |
(a) Requirements. In performing services for the Fund and otherwise discharging its obligations under this Agreement, the Manager shall act in conformity with the following requirements (the “Requirements”):
| (i) | the 1940 Act, the Internal Revenue Code of 1986, as amended, and all other applicable federal and state laws and regulations which apply to the Manager in conjunction with performing services for the Fund, if any; |
| (ii) | TIP’s Registration Statement under the 1940 Act and the Securities Act of 1933, as amended, on Form N-1A as filed with the Securities and Exchange Commission relating to the Fund and the shares of beneficial interest in the Fund, as such Registration Statement may be amended from time to time (the “Registration Statement”). TIP shall deliver or otherwise make available to the Manager any amendments or supplements to the Registration Statement that contain changes that pertain to the Manager’s provision of services under this Agreement prior to the effectiveness thereof (or as soon as reasonably practicable thereafter); |
| (iii) | the Manager’s Investment Guidelines, which may be amended from time to time through mutual agreement by TAS and the Manager in writing; |
| (iv) | written instructions and directions of the board of trustees of TIP; |
| (v) | the laws and regulations of the Hong Kong Special Administrative Region and the People’s Republic of China (the “PRC”), the Hong Kong and PRC regulations applicable to their respective stock exchanges and the Shanghai-Hong Kong Stock Connect program (including any future Shenzhen-Hong Kong Stock Connect program), including, but not limited to, requirements limiting off-exchange transfers of shares and prohibitions against overselling of shares, subject to paragraph 3(b) of this Agreement. To the extent required by PRC law or any representative of the PRC government, the Manager will comply with PRC requirements relating to short-swing profits, disclosure of interests, and foreign ownership limits, subject to paragraph 3(b) of this Agreement; and |
| (vi) | written instructions and directions of TAS. |
(b) Responsibility with Respect to Actions of Others. TIP may place the investment portfolio of each of its funds, including the Fund, with one or more investment managers. To the extent the applicability of, or conformity with, the Requirements depends upon investments made by, or activity of, the managers other than the Manager, the Manager agrees to comply with such Requirements: (i) to the extent that such compliance is within the Manager’s Investment Guidelines; and (ii) to the extent that the Manager is provided with information sufficient to ascertain the applicability of such Requirements. If it appears to the Fund at any time that the Fund may not be in compliance with any Requirement and the Fund or TAS so notifies the Manager, the Manager shall promptly take such actions not inconsistent with applicable law or regulation as the Fund or TAS may reasonably specify to effect compliance. The Fund further acknowledges and agrees that certain requirements under applicable laws in China (including but not limited to the intraday trading restriction, foreign ownership limits, disclosure of interests requirements and short swing profit rule) may be calculated and applied on an aggregate basis across all investment portfolios of the Fund, including any investment portfolios and assets managed by other investment managers of the Fund. The Manager acknowledges and agrees that such requirements may be required to be calculated and applied on an aggregate basis across all investment portfolios and assets managed by the Manager and, in certain circumstances, its affiliates. The Manager’s responsibility to ensure compliance with such applicable laws shall be limited to the trading and investment activities of (i) the Managed Assets only, calculated and applied on an individual account basis without reference to any other investment portfolios or assets managed by other investment managers of the Fund and (ii) to the extent required by law, such other portfolios and assets managed by the Manager and its affiliates if such portfolios and assets are aggregated with the Managed Assets.
(c) Responsibility with Respect to Performance of Duties. In performing its duties under this Agreement, the Manager will act solely in the interests of the Fund and shall use reasonable care and its best judgment in matters relating to the Fund. The Manager will not deal with the Managed Assets in its own interest or for its own account; provided however that nothing in this paragraph shall be construed as a limitation on Section 7 below.
(d) Valuation. The Manager shall not be responsible for calculating the Net Asset Value of the Fund’s portfolio or making final decisions on the value of portfolio securities used to calculate such net asset value but must review regularly the pricing of the Managed Assets as made available by or on behalf of the Fund. The Manager agrees to notify the Fund as soon as reasonably practicable if the Manager reasonably believes that the value of any portfolio security comprising the Managed Assets may not reflect fair value. The Manager agrees to provide upon reasonable request any pricing information of which the Manager is aware to the Fund, to TAS, or to the Fund’s administrator to assist in the determination of the fair value of any portfolio security comprising the Managed Assets for which market quotations are not readily available or as otherwise required in accordance with the 1940 Act or the Fund’s valuation procedures for the purpose of calculating the Fund’s Net Asset value in accordance with procedures and methods established by the board of trustees of TIP.
| 4. | Recordkeeping and Reporting |
(a) Records. The Manager shall maintain proper and complete records relating to the furnishing of investment management services under this Agreement, including records with respect to the securities transactions for the Managed Assets required by Rule 31a-1 under the 1940 Act. All records maintained pursuant to this Agreement shall be subject to examination by the Fund and by persons authorized by it during reasonable business hours upon reasonable notice. Records required by Rule 31a-1 maintained as specified above shall be the property of the Fund; the Manager will preserve such records for the periods prescribed by Rule 31a-2 under the 1940 Act and shall surrender such records promptly at the Fund's request. Upon termination of this Agreement, the Manager shall promptly return records that are the Fund's property and, upon demand, shall make and deliver to the Fund true and complete and legible copies of such other records maintained as required by this Section 4(a) as the Fund may reasonably request. The Manager may retain copies of records furnished to the Fund.
(b) Reports to Custodian. The Manager shall provide to the Fund's custodian and to the Fund, on each business day, information relating to all transactions concerning the Managed Assets.
(c) Other Reports. The Manager shall render to the board of trustees of TIP and to TAS such periodic and special reports as the board or TAS may reasonably request.
| 5. | Purchase and Sale of Securities |
(a) Selection of Brokers. The Manager shall place all orders for the purchase and sale of securities on behalf of the Fund with brokers or dealers selected by the Manager in conformity with the policy respecting brokerage set forth in the Registration Statement. Neither the Manager nor any of its officers, employees, nor any of its "affiliated persons," as defined in the 1940 Act, will act as principal with respect to the Managed Assets nor will the Manager execute any portfolio transactions for the Managed Assets with a broker or dealer which is (i) an affiliated person of the Fund; (ii) principal underwriter of the Fund's shares; or (iii) an affiliated person of such an affiliated person, unless such transactions are: (a) exempt under applicable law or regulation, including under Rule 10f-3(b) or Rule 17a-10; (b) exempt under applicable law or regulation and executed in accordance with the Fund’s procedures adopted thereunder, including the exemptions provided by Rule 10f-3(c) or Rule 17a-7, and the Fund’s Rule 10f-3 procedures or Rule 17a-7 procedures, as the case may be; or (c) executed in accordance applicable law or regulation and executed in accordance with the Fund’s procedures adopted thereunder, including Rule 17e-1 and the Fund's Rule 17e-1 procedures. TIP agrees that it will provide the Manager with a written list of such brokers and dealers and will, from time to time, update such list as necessary. The Manager agrees that it will provide TIP or TAS with a written list of brokers and dealers that are affiliates of the Manager and will, from time to time, update such list as necessary.
In placing such orders, the Manager will give primary consideration to obtaining the most favorable price and efficient execution reasonably available under the circumstances and in accordance with applicable law. The Fund acknowledges and accepts that certain operational constraints and regulatory restrictions in China may limit the number of brokers, dealers or derivative counter parties the Manager may engage. In evaluating the terms available for executing particular transactions for the Fund and in selecting broker-dealers (including derivative counter parties) to execute such transactions, the Manager may consider, in addition to commission cost and execution capabilities, those factors that it deems relevant, such as the financial stability and reputation of broker-dealers (including derivative counter parties) and the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934, as amended) provided by such broker-dealers. The Manager is authorized to pay a broker-dealer who provides such brokerage and research services a commission for executing a transaction which is in excess of the amount of commission another broker-dealer would have charged for effecting that transaction if the Manager determines in good faith that such commission is reasonable in relation to the value of the brokerage and research services provided by such broker-dealer in discharging responsibilities with respect to the Fund or to other client accounts as to which it exercises investment discretion.
(b) Aggregating Orders. On occasions when the Manager deems the purchase or sale of a security to be in the best interest of the Fund as well as other advisory clients of the Manager, the Manager, to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be so sold or purchased in order to obtain the most favorable price or lower brokerage commissions and efficient execution. In such event, allocation of securities so purchased or sold, as well as the expense incurred in the transaction, will be made by the Manager in the manner it considers to be most equitable and consistent with its fiduciary obligations to the Fund and its other clients.
| 6. | Management Fees; Expenses |
(a) Management Fees. Schedule I attached hereto sets out the fees to be paid by the Fund to the Manager by the tenth business day of the month following the month to which the fee relates. The applicable fee rate will be applied to the average daily net assets of the Managed Assets, computed as described in the Fund’s Registration Statement.
(b) Expenses. The Manager shall furnish at its own expense all of its own office facilities, equipment and supplies, and shall perform at its own expense all routine and recurring functions necessary to render the services required under this Agreement including administrative, bookkeeping and accounting, clerical, statistical, and correspondence functions. The Fund shall pay directly, or, if the Manager makes payment, reimburse the Manager for, (i) custodial fees for the Managed Assets, (ii) brokerage commissions, issue and transfer taxes and other costs of securities transactions to which the Fund is a party, including any portion of such commissions attributable to research and brokerage services; and (iii) interest and taxes, if any, payable by the Fund. In addition, the Fund shall pay directly, or, if the Manager makes payment, reimburse the Manager for, such non-recurring special out-of-pocket costs and expenses as may be authorized in advance by the Fund.
| 7. | Non-Exclusivity of Services |
The Manager is free to act for its own account and to provide investment management services and advice to others. The Fund acknowledges that the Manager and its affiliates, officers and employees, and the Manager's other clients, may at any time have, acquire, increase, decrease or dispose of positions in the same investments which are at the same time being held, acquired or disposed of under this Agreement for the Fund. Neither the Manager nor any of its officers or employees shall have any obligation to provide advice or effect a transaction under this Agreement simply because such advice is provided or a transaction is effected for his or its own account or for the account of another client of the Manager or its affiliates. The Fund agrees that the Manager may refrain from providing any advice or services concerning securities of companies for which any officers, directors, partners or employees of the Manager or any of the Manager’s affiliates act as financial adviser, investment manager or in any capacity that the Manager deems confidential, unless the Manager determines in its sole discretion that it may appropriately do so. The Fund appreciates that, for good commercial and legal reasons, material nonpublic information which becomes available to affiliates of the Manager through these relationships cannot be passed on to Fund and that the Manager may be restricted from trading the securities of issuers about which it is in possession of material nonpublic information.
| 8. | Delegation of Services to Affiliates and Third Parties |
The Fund acknowledges and agrees that the Manager may, in its discretion, utilize personnel employed by its affiliates to perform services pursuant to this Agreement by way of a “participating non-US affiliate” agreement in accordance with, and to the extent permitted by, the 1940 Act and the Advisers Act, including the published interpretations thereof by the U.S. Securities and Exchange Commission (“SEC”) or its staff. Should such participating non-US affiliate agreement cease to meet the requirements of the 1940 Act or the Advisers Act, including published interpretations thereof by the SEC or its staff, the Manager’s authority to utilize personnel of its affiliates in the performance of its duties hereunder shall terminate immediately and the Manager shall promptly inform TIP and TAS. For the avoidance of doubt, the Manager acknowledges and agrees that it assumes full responsibility for all actions, and any failure to act, by each person utilized to perform services under this Agreement.
Fund further acknowledges and agrees that the Manager may, except where prohibited by applicable law or regulation, use the services of an affiliate or a third party to perform accounting, administrative, reporting or ancillary services to assist the Manager in performing its duties under this Agreement, provided that such services are not considered to be investment advisory services under the 1940 Act. The Manager will act in good faith and with due diligence in the selection, use and monitoring of such affiliates and third parties, and shall be solely responsible to the Fund for any loss resulting from willful misfeasance, bad faith, fraud, or gross negligence by such affiliate or third party. The Manager shall be solely responsible for any fees, charges, or expenses owed to such affiliates or third parties.
| 9. | Liability |
The Manager and any of its affiliates shall not be liable to the Fund, TIP, TAS or any shareholder for any error of judgment, but the Manager shall be liable to the Fund for any loss resulting from willful misfeasance, bad faith, fraud, or gross negligence by the Manager in providing services under this Agreement or from reckless disregard by the Manager of its obligations and duties under this Agreement. Nothing in this Agreement shall constitute a waiver or limitation of any rights that the Fund, TIP, or TAS may have under applicable state or federal laws.
| 10. | Representations |
(a) The Manager hereby represents to the Fund that the Manager is registered as an investment adviser under the Advisers Act, that it has full power and authority to enter into and perform fully the terms of this Agreement and that the execution of this Agreement on behalf of the Manager has been duly authorized and, upon execution and delivery, this Agreement will be binding upon the Manager in accordance with its terms.
(b) The Manager represents that it is in material compliance with all applicable laws, both federal and state.
(c) TIP hereby represents to the Manager that it has full power and authority to enter into and perform fully the terms of this Agreement and that the execution of this Agreement on behalf of the Fund has been duly authorized and, upon execution and delivery, this Agreement will be binding upon TIP in accordance with its terms.
(d) TIP acknowledges receipt of Parts 2A and B of the Manager’s Form ADV and Commodity Trading Advisor (CTA) Disclosure Document (if applicable).
(e) TIP represents that TIP and the Fund are in material compliance with all applicable laws and regulations, both federal and state and the Fund is permitted to invest in the securities and investments set out in the Manager’s Investment Guidelines.
| 11. | Term |
This Agreement shall continue in effect for a period of two (2) years from the date hereof and shall thereafter be automatically renewed for successive periods of one (1) year each, provided such renewals are specifically approved at least annually in conformity with the requirements of the 1940 Act; provided, however, that this Agreement may be terminated without the payment of any penalty, by (a) the Fund, if a decision to terminate is made by the board of trustees of TIP or by a vote of a majority of the Fund’s outstanding voting securities (as defined in the 1940 Act), or (b) the Manager, in each case with at least 30 days' written notice from the terminating party and on the date specified in the notice of termination.
This Agreement shall terminate automatically in the event of its assignment (as defined in the 1940 Act).
| 12. | Amendment |
Except as otherwise provided in this Agreement, this Agreement may be amended by mutual consent, but the consent of the Fund must be approved in conformity with the requirements of the 1940 Act and any order of the Securities and Exchange Commission that may address the applicability of such requirements in the case of the Fund. Any such amendment must be in writing and signed by each party.
| 13. | Notices |
Notices or other communications required to be given pursuant to this Agreement shall be deemed duly given when delivered electronically, in writing, or sent by fax or three business days after mailing registered mail postage prepaid as follows:
| Fund: | TIFF Investment Program |
| c/o TIFF Advisory Services, Inc. | |
| Attn: General Counsel | |
| 000 X. Xxxxxx Xxxxxxx Xxxx, Xxxxx 000 | |
| Xxxxxx, XX 00000 | |
| Fax: 000-000-0000 | |
| Email: xxxxx@xxxx.xxx with a copy to xxxxxxxx@xxxx.xxx | |
| Manager: | Xxxxxxxxx Xxxxxx Asia Limited |
| Suites 2007-2020, 20th Floor, | |
| Xxxxxxx Xxxxx, 0 Xxxxxxxxx Xxxxx, | |
| Xxxxxxx, Xxxx Xxxx | |
| Attn: General Counsel | |
| Email: Xxxxx.Xxxxxxxx@xx.xxx |
Each party may change its address by giving notice as herein required.
| 14. | Sole Instrument |
This instrument constitutes the sole and only agreement of the parties to it relating to its object and correctly sets forth the rights, duties, and obligations of each party to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect.
| 15. | Counterparts |
This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which, taken together, shall be deemed to constitute one and the same instrument.
| 16. | Applicable Law |
This Agreement shall be governed by, and the rights of the parties arising hereunder construed in accordance with, the laws of the State of Delaware without reference to principles of conflict of laws. Nothing herein shall be construed to require either party to do anything in violation of any applicable law or regulation.
| 17. | Confidential Information |
Any information or recommendations supplied by any party to this Agreement, which are not otherwise in the public domain or previously known to another party in connection with the performance of obligations hereunder, including securities or other assets held or to be acquired by the Fund, transactions in securities or other assets effected or to be effected on behalf of the Fund, or financial information or any other information relating to a party to this Agreement, are to be regarded as confidential (“Confidential Information”).
No party may use or disclose to others Confidential Information about the other party, except solely for the legitimate business purposes of the Fund, including but not limited to its affiliates, for which the Confidential Information was provided and in compliance with TIP’s policies on the disclosure of portfolio holdings, to the extent applicable; as may be required by applicable law or rule or compelled by judicial or regulatory authority having competent jurisdiction over the party; or as specifically agreed to in writing by the other party to which the Confidential Information pertains. Further, no party may trade in any securities issued by another party while in possession of material non-public information about that party. Lastly, the Manager may not consult with any other money managers for the Fund about transactions in securities or other assets of the Fund, except for purposes of complying with the 1940 Act or SEC rules or regulations applicable to the Fund. Nothing in this Agreement shall be construed to prevent the Manager from lawfully giving other entities investment advice about, or trading on their behalf in, shares issued by the Fund or securities or other assets held or to be acquired by the Fund.
In witness whereof, the parties hereto execute this Agreement on and make it effective on the Effective Date specified in the first paragraph of this Agreement.
| TIFF Investment Program | Xxxxxxxxx Xxxxxx Asia Limited | |||
| on behalf of the Fund | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | By: | /s/ Xxxxx Henchman | |
| Title: | Vice President | Title: | COO | |
Schedule I
to the Money Manager Agreement (the “Agreement”)
dated as of June 13, 2016
between
Xxxxxxxxx Xxxxxx Asia Limited (the “Manager”) and
TIFF Investment Program for its TIFF Multi-Asset Fund (the “Fund”)
Fee Calculation
As compensation for the services performed and the facilities and personnel provided by the Manager pursuant to the Agreement, the Fund will pay the Manager a fee according to the following formula:
0.90% per annum on the first $100,000,000 of Managed Assets;
0.80% per annum on the next $100,000,000 of Managed Assets;
0.60% per annum thereafter.
The fee shall be prorated for any period that is less than a full calendar month.
All capitalized terms used but not defined in this Schedule I shall have the meanings ascribed to them in the Agreement.
