ITEM 77E
INSTITUTIONAL PORTFOLIO
MANAGEMENT AGREEMENT
Xxxx Xxxxx Partners Fund Advisor, LLC
This MANAGEMENT AGREEMENT ("Agreement") is made this 1st day of August,
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, 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, 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 a 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 a 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 a 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.
(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, shareholder 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 shareholders, (iv) maintaining
the Fund's existence, and (v) during such times as shares are
publicly offered, maintaining the registration and qualification of
the Fund's shares 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 the shares of 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, shareholder 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 a 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 a 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 share certificates; expenses
relating to the issuing and redemption or repurchase of the Fund's
shares and servicing shareholder accounts; expenses of registering and
qualifying the Fund's shares 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 dividends to the Fund's shareholders;
costs of stationery; website costs; costs of meetings of the Board
or any committee thereof, meetings of shareholders 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. As compensation for the services performed and the facilities
furnished and expenses assumed by the Manager, including the services
of any consultants retained by the Manager, the Fund shall pay the
Manager, as promptly as possible after the last day of each month,
a fee, computed daily at an annual rate set forth opposite the Fund's
name on Schedule A annexed hereto, provided however, that if the Fund
invests all or substantially all of its assets in another registered
investment company for which the Manager or an affiliate of the
Manager serves as investment adviser or investment manager, the annual
fee computed as set forth on such Schedule A shall be reduced by the
aggregate management fees allocated to that Fund for the
Fund's then-current fiscal year from such other registered
investment company. The first payment of the fee shall be made as
promptly as possible at the end of the month succeeding the
effective date of this Agreement, and shall constitute a full payment
of the fee due the Manager for all services prior to that date.
If this Agreement is terminated as of any date not the last day
of a month, such fee shall be paid as promptly as possible after
such date of termination, shall be based on the average daily net
assets of the Fund in that period from the beginning of such month
to such date of termination, and shall be that proportion of such
average daily net assets as the number of business days in such
period bears to the number of business days in such month. The
average daily net assets of the Fund shall in all cases be based
only on business days and be computed as of the time of the regular
close of business of the New York Stock Exchange, or such other time
as may be determined by the Board.
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 a 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, shareholders, 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 a 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 Fund's "net assets" shall be
determined as provided in the Fund's then-current Prospectus and
Statement of Additional Information and 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
shareholders of the Fund in accordance with the requirements of the 1940 Act
and, unless sooner terminated as provided herein, will continue in
effect until November 30, 2007. 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 shareholders of 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
Prime Cash Reserves Portfolio
Date:
August 1, 2006
Fee:
The following percentage of the Fund's average daily net assets: 0.10%
Institutional Enhanced Portfolio
Date:
August 1, 2006
Fee:
The following percentage of the Fund's average daily net assets: 0.10%
