Exhibit d(21)
AMENDED AND RESTATED ADVISORY AGREEMENT
AMENDED AND RESTATED ADVISORY AGREEMENT, dated April 19, 2004, between
TIFF Investment Program, Inc., a Maryland corporation ("TIP"), for the account
of its Short-Term Fund (the "Fund") and TIFF Advisory Services, Inc., a
Delaware corporation (the "Adviser").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. ATTORNEY-IN-FACT. TIP hereby appoints the Adviser to act as
investment adviser to the Fund for the period and on the terms set forth in
this Agreement. The Adviser accepts such appointment and agrees to render the
services herein described, for the compensation herein provided.
2. DUTIES OF THE ADVISER. Under the supervision and subject to the
control of TIP's board of directors ("Board"), the Adviser shall manage the
investment program of the Fund and, in particular, shall perform the following
duties in addition to any others that the Board and the Adviser agree are
appropriate to support and enhance the investment program of the Fund:
(A) MONEY MANAGER SELECTION AND SUPERVISION
(i) Establish, in consultation with the Board, criteria for
identification and selection of money managers for the Fund;
(ii) Identify, screen and interview money managers for the Fund,
analyze the capabilities of such managers, and, subject to
review and approval of the Board, select one or more money
managers to invest the Fund's assets in light of the
capabilities of available managers and expectations as to the
way in which the investment programs and styles of each will
contribute, in tandem, to the overall performance of the
Fund;
(iii) Negotiate discretionary management agreements between TIP and
money managers on suitable terms with particular attention to
performance benchmarks and fees, it being understood that
(except with respect to assets that are not managed by a
money manager, as provided below) the agreements will vest
with the money managers, and not with the Adviser, the
discretion to select particular investments within the
investment program, performance benchmark or benchmarks,
investment policies, and restrictions set forth in agreement,
and advise the Board of Directors, which has final authority
for the approval or disapproval of such agreements, as to the
terms thereof and other pertinent information with respect
thereto;
(iv) Review periodically the performance of each money manager
against the manager's performance benchmark and the manager's
overall contribution to the Fund's performance, and make such
recommendations to the Board of Directors as the Adviser
deems appropriate with respect to the continuation,
modification, or termination of the agreement with the
manager;
(v) Allocate and reallocate funds to and among money managers in
light of changing market conditions, manager performance, and
other factors that the Adviser deems relevant with the
objective of maximizing the Fund's investment performance;
(vi) Review the investment objectives, policies and restrictions
applicable to the Fund in light of the Fund's performance and
make recommendations the Adviser deems appropriate with
respect to any changes in such objectives, policies and
restrictions.
(B) DIRECT MANAGEMENT AND CASH MANAGEMENT
(i) With respect to assets of the Fund that are not managed by,
or pending allocation to, a money manager, purchase and sell
securities and other investments in accordance with the
Fund's investment objectives, policies, and restriction as
described in TIP's registration statement.
(ii) Arrange for the management of cash invested in the Fund pending
its allocation to managers and, when permitted under terms of
manager agreements, for the management of cash allocated to
managers pending investment in accordance with the Fund's
investment program; such arrangements may involve retention of
one or more cash managers under agreements negotiated by the
Adviser and approved by the Board of Directors and may also
involve investment by the Adviser in money market instruments
and other securities in accordance with TIP's investment
policies and restrictions applicable to the management of cash
or the acquisition (with appropriate assistance from registered
commodity trading advisers or other registered persons) of
futures contracts or derivative instruments providing a
synthetic exposure to the investment market consistent with
TIP's investment program.
All of the foregoing duties, and any others that may be performed by the
Adviser from time to time, shall be performed in accordance with the investment
objectives, policies and restrictions set forth in TIP's Registration Statement
under the Investment Company Act of 1940 (the "Act"), as such Registration
Statement may be amended from time to time and in conformity with the Act and
other applicable law. The Adviser shall use its best judgment in the
performance of its duties under this Agreement.
3. FURTHER PROVISIONS INVOLVING DIRECT MANAGEMENT AND CASH MANAGEMENT
BY THE ADVISER. The provisions of this section pertain to the direct management
by the Adviser of all or a part of the Fund's assets, and to the Adviser's
investments for cash management purposes.
(a) Records. Adviser 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 required by
the 1940 Act and Rules thereunder. All records maintained pursuant to this
Agreement shall be subject to examination by TIP and by persons authorized
by it during reasonable business hours upon reasonable notice. Records
required to be maintained by the 1940 Act shall be the property of TIP;
Adviser will preserve such records for the periods prescribed by Rule 31a-2
under the 1940 Act and shall surrender such records promptly at TIP's
request. Upon termination of this Agreement, Adviser shall promptly return
records that are TIP's property and, upon demand, shall make and deliver to
TIP true, complete and legible copies of such other records maintained as
required by this Section 3(a) as TIP may request. Adviser may retain copies
of records furnished to TIP.
(b) Reports to Custodian. Adviser shall provide to TIP's custodian and to TIP
on each business day information relating to all transactions concerning
the managed assets.
(c) Other Reports. Adviser shall render to the Board such periodic and special
reports as the Board may reasonably request.
(d) Selection of Brokers. Adviser shall place all orders for the purchase and
sale of securities on behalf of TIP with brokers or dealers selected by
Adviser in conformity with the policy respecting brokerage set forth in the
Statement of Additional Information included in the Registration Statement.
Neither the Adviser nor any of its officers, employees or affiliates will
act as principal or receive any compensation in connection with the
purchase or sale of investments by TIP other than the management fees
provided for in this Agreement.
4. STANDARD OF CARE/INDEMNIFICATION. Subject to Section 36 of the Act,
the Adviser shall not be liable to TIP 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 management of the Fund and the performance of its duties under this
Agreement except for losses arising out of the Adviser's bad faith, willful
misfeasance or gross negligence in the performance of its duties or by reason
of its reckless disregard of its obligations and duties under this Agreement.
TIP agrees to indemnify the Adviser for any claims, losses, costs, damages, or
expenses (including fees and disbursements of counsel, but excluding the
ordinary expenses of the Adviser arising from the performance of its duties and
obligations under this Agreement) whatsoever arising out of the performance of
this Agreement except for those claims, losses, costs, damages and expenses
resulting from the Adviser's bad faith, willful misfeasance or gross negligence
in the performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement.
5. OTHER INVESTMENT ACTIVITY. Subject to restrictions imposed by law
and by applicable Codes of Ethics adopted by TIP and by the Adviser, Adviser
and its directors, officers, affiliates or employees may buy, sell , or trade
in any securities for accounts in which they have a beneficial interest and for
accounts over which they exercise investment discretion. TIP acknowledges that
the Adviser and its officers, directors, and employees may at any time have,
acquire, increase, decrease or dispose of positions in investments which are at
the same time being acquired or disposed of for the account of the Fund and
that the Adviser will have no obligation to acquire for the Fund a position in
any investment which the Adviser, or its officers, directors or employees may
acquire, if in the sole discretion of the Adviser, it is not feasible or
desirable to acquire a position in such investment for the account of the Fund.
6. EXPENSES. The Adviser shall pay all of its expenses arising from
the performance of its obligations under this Agreement including the costs of
office space, equipment, and personnel necessary to discharge those obligations
including, in particular, the salaries and expenses of officers of TIP who are
officers or employees of the Adviser. The Adviser shall pay all fees, if any,
and reimburse all expenses of its directors except to the extent such directors
are directors of TIP and expenses relate to attendance at meetings of the Board
or any committee thereof or advisors thereto. The Adviser shall not be required
to pay any other expenses of TIP, including, without limitation: money manager
fees; brokerage commissions; fees and expenses of administrators, independent
attorneys, auditors, custodians, accounting agents, and transfer agents
including maintenance of books and records which are required to be maintained
by TIP's custodian or other agents of TIP; payment for portfolio pricing or
valuation service to pricing agents, accountants, bankers and other
specialists, if any; taxes; costs of stock certificates and any other expenses
(including clerical expenses) of issue, sale, repurchase and redemption of
shares; expenses of registering and qualifying shares of TIP under federal and
state laws and regulations; expenses relating to investor and public relations
including telephone, telex, facsimile, postage and other communications
expenses and expenses of printing and distributing reports, notices and proxy
materials to existing shareholders; expenses of printing and filing reports and
other documents with governmental agencies; expenses of annual and special
shareholders meetings; insurance premiums, including premiums for
indemnification insurance for directors and officers of TIP; and extraordinary
expenses such as litigation expenses.
7. COMPENSATION. (a) As compensation for the services performed and
the facilities and personnel provided by the Adviser pursuant to this
Agreement, TIP will pay to the Adviser promptly at the end of each calendar
month, a fee, calculated on each day during such month, at an annual rate of
the Fund's average daily net assets, as follows:
ASSETS ANNUAL RATE
First $500 Million 0.03%
Next $500 Million 0.03%
Next $500 Million 0.02%
Next $500 Million 0.02%
Next $500 Million 0.01%
Over $2.5 Billion 0.01%
The Adviser shall be entitled to receive during any month such interim payments
of its fee hereunder as the Adviser shall request, provided that no such
payment shall exceed 50% of the amount of such fee then accrued on the books of
the Fund and unpaid.
(a) If the Adviser shall serve hereunder for less than the whole of any month,
the fee payable hereunder shall be prorated.
(b) For purposes of this Section 7, the "average daily net assets" of the Fund
shall mean the average of the values placed on the Fund's net assets on
each day pursuant to the applicable provisions of TIP's Registration
Statement, as it may be in effect from time to time.
8. TERM OF AGREEMENT. This Agreement shall continue in full force and
effect until two years from the date hereof, and will continue in effect from
year to year thereafter if such continuance is approved in the manner required
by the Act, provided that this Agreement is not otherwise terminated. The
Adviser may terminate this Agreement at any time, without payment of penalty,
upon 60 days' written notice to TIP. TIP may terminate this Agreement with
respect to the Fund at any time, without payment of penalty, on 60 days'
written notice to the Adviser by vote of either the Board or a majority of the
outstanding stockholders of the Fund. This Agreement will automatically
terminate in the event of its assignment (as defined by the Act).
9. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Virginia. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require or
to impose any duty upon either of the parties to do anything in violation of
any applicable laws or regulations.
10. RIGHTS RELATING TO CORPORATE NAME. The Adviser and TIP each agree
that the phrase "TIFF" or "The Investment Fund for Foundations," which
comprises a component of TIP's corporate name, is a property right of The
Investment Fund for Foundations. TIP agrees and consents that (i) it will only
use the phrase "TIFF" as a component of its corporate name and for no other
purpose; (ii) it will not purport to grant to any third party the right to use
the phrase "TIFF" for any purpose; (iii) the Adviser or any corporate affiliate
of the Adviser may use or grant to others the right to use the phrase "TIFF" or
any combination or abbreviation thereof, as all or a portion of a corporate or
business name or for any commercial purpose, including a grant of such right to
any other investment company, and at the request of the Adviser, TIP will take
such action as may be required to provide its consent to such use or grant; and
(iv) upon the termination of any investment advisory agreement into which the
Adviser and TIP may enter, TIP shall, upon request by the Adviser, promptly
take such action, at its own expense, as may be necessary to change its
corporate name to one not containing the phrase "TIFF" and following such a
change, shall not use the phrase "TIFF" or any combination thereof, as part of
its corporate name or for any other commercial purpose, and shall use its best
efforts to cause its officers, directors and stockholders to take any and all
actions which the Adviser may request to effect the foregoing and recovery to
the Adviser any and all rights to such phrase.
IN WITNESS WHEREOF, TIP and the Adviser have caused this Agreement to
be executed by their duly authorized officers as of the date first written
above.
ATTEST TIFF INVESTMENT PROGRAM, INC.
By: /s/ Xxxxxxxxxx X'Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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ATTEST TIFF ADVISORY SERVICES, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxx
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