Exhibit 99.(d)(7)
AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 25th day of April, 2006, by and between XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC., a Delaware corporation (hereinafter referred
to as "MSIM"), and XXXXXX XXXXXXX INVESTMENT MANAGEMENT LIMITED, a company
incorporated under the laws of England (hereinafter referred to the "Local
Manager").
W I T N E S S E T H:
WHEREAS, Xxxxxx Xxxxxxx Institutional Fund, Inc. (the "Fund") is a Maryland
corporation engaged in business as an open-end management investment company
with separate portfolios, certain of which are set forth on Schedule A, as may
be amended from time to time to add or remove portfolios (with such portfolios
set forth on Schedule A being the "Portfolios"), and is registered under the
Investment Company Act of 1940, as amended (hereinafter referred to as the
"Investment Company Act"); and
WHEREAS, MSIM and the Local Manager are engaged principally in rendering
investment advisory services and are registered as investment advisers under the
Investment Advisors Act of 1940, as amended; and
WHEREAS, the Local Manager is regulated by the Financial Services Authority
in the United Kingdom; and
WHEREAS, MSIM has entered into an investment advisory agreement (the
"Advisory Agreement") with the Fund dated May 31, 1997, as amended from time to
time, pursuant to which MSIM provides management and investment and advisory
services to the Fund; and
WHEREAS, the Local Manager is willing to provide investment management
services to MSIM in connection with the Fund's operations on the terms and
conditions hereinafter set forth and including the terms and conditions
contained in Annex 1 to this Agreement;
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Local Manager and MSIM hereby agree as follows:
ARTICLE I
DUTIES OF THE LOCAL MANAGER
MSIM hereby employs the Local Manager to act as discretionary investment
manager to MSIM and to furnish the investment management services described
below, subject to the broad supervision of MSIM and the Fund, for the period and
on the terms and conditions set forth in this Agreement. The Local Manager
hereby accepts such employment and agrees during such period, at its own
expense, to render, or arrange for the rendering of, such services and to assume
the obligations herein set forth for the compensation provided for herein. MSIM
and its affiliates shall for all purposes herein be deemed an Intermediate
Customer as defined under the rules and guidance promulgated by the Financial
Services Authority (hereinafter referred to as the "FSA Rules"). The Local
Manager and its affiliates shall for all purposes herein be deemed to be an
independent contractor and shall, unless otherwise expressly provided or
authorized, have no authority to act for or represent the Fund in any way or
otherwise be deemed an agent of the Fund.
The Local Manager shall have full discretion, power and authority on the
Fund's behalf to buy, sell, retain, exchange or otherwise deal in investments
and other assets, make deposits, subscribe to issues and offers for sale and
accept placings of any investments, enter into foreign currency transactions on
a spot or forward basis, effect transactions on any markets, take all day to day
decisions and otherwise act as the Local Manager judges appropriate in relation
to the investment and reinvestment of the portfolio of assets of each Portfolio.
This includes performing all acts and executing all documents which the Local
Manager reasonably considers incidental thereto, including (without limitation)
power to execute and deliver all applications, requests, or claims for refund,
reduction, repayment or credit of, or exemption or relief from, any withholding
tax or similar taxes in any jurisdiction in which such applications, requests or
claims may be made. Subject to guidelines adopted by each Portfolio, the Local
Manager shall also make recommendations or take action as to the manner in which
voting rights, rights to consent to corporate action and any other rights
pertaining to the portfolio of assets of each Portfolio shall be exercised. All
of the foregoing is subject always to the restrictions of the Articles of
Incorporation and By-Laws of the Fund, as they may be amended and/or restated
from time to time and as provided to the Local Manager by MSIM, the provisions
of the Investment Company Act and the statements relating to each Portfolio's
investment objective(s), investment policies and investment restrictions as the
same are set forth in the currently effective prospectus and statement of
additional information relating to the shares of the Fund under the Securities
Act of 1933, as amended (the "Prospectus" and "Statement of Additional
Information", respectively), as well as to the supervision of MSIM and the Board
of Directors of the Fund.
The Local Manager will not hold money on behalf of MSIM or the Fund, nor
will the Local Manager be the registered holder of the registered investment of
MSIM or the Fund or be the custodian of documents or other evidence of title.
The Local Manager may, where reasonable, employ agents (including
affiliates) to perform any administrative, dealing or ancillary services
required to enable the Local Manager to perform its services under this
Sub-Advisory Agreement.
ARTICLE II
ALLOCATION OF CHARGES AND EXPENSES
The Local Manager assumes and shall pay for maintaining the staff and
personnel necessary to perform its obligations under this Agreement and shall at
its own expense provide the office space, equipment and facilities which it is
obligated to provide under Article I hereof.
ARTICLE III
COMPENSATION OF THE LOCAL MANAGER
For the services rendered, the facilities furnished and expenses assumed by
the Local Manager, MSIM shall pay to the Local Manager a fee in an amount to be
determined from time to time by MSIM and the Local Manager but in no event in
excess of the amount that MSIM actually received for providing services to the
Fund pursuant to the Advisory Agreement.
2
ARTICLE IV
LIMITATION OF LIABILITY OF THE LOCAL MANAGER
No warranty is given by the Local Manager as to the performance or
profitability of the Fund or any part of them.
If a percentage restriction contained in the Fund's investment objective(s)
or investment restrictions (as the same are set forth in the Fund's currently
effective Prospectus and Statement of Additional Information) is adhered to at
the time of investment, a later change in percentage resulting from a change in
values or assets will not constitute a violation of such restriction.
The Local Manager will not be responsible to MSIM or the Fund for the
solvency, actions or omissions of any counterparty, broker, dealer,
market-maker, bank, custodian or sub-custodian, with whom it transacts business
on MSIM's behalf, other than affiliates of the Local Manager.
Nothing in this Agreement will exclude or restrict any liability which the
Local Manager has under the Financial Services and Markets Xxx 0000, FSA Rules
or the Regulatory System in relation to MSIM and which may not be excluded or
restricted thereunder.
The Local Manager 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 performance of investment management services rendered with respect to
the Fund, except for willful misfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties hereunder. The exception in the previous sentence shall apply to each
limitation of the Local Manager's liability contained in this Article IV. As
used in this Article IV, the Local Manager shall include any affiliates of the
Local Manager performing services for the Local Manager contemplated hereby and
directors, officers and employees of the Local Manager and such affiliates.
ARTICLE V
ACTIVITIES OF THE LOCAL MANAGER
The services of the Local Manager to the Fund are not to be deemed to be
exclusive, the Local Manager and any person controlled by or under common
control with the Local Manager (for purposes of this Article V referred to as
"affiliates") being free to render services to others. It is understood that
Directors, officers, employees and shareholders of the Fund are or may become
interested in the Local Manager and its affiliates, as directors, officers,
employees and shareholders or otherwise and that directors, officers, employees
and shareholders of the Local Manager and its affiliates are or may become
similarly interested in the Fund, and that the Local Manager and directors,
officers, employees, partners and shareholders of its affiliates may become
interested in the Fund as shareholders or otherwise.
ARTICLE VI
DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective as of the date first above written
and shall remain in force until the date of termination of the Advisory
Agreement (but not later than two years after the date hereof) and thereafter,
but only so long as such continuance is specifically approved at least annually
by (i) the Directors of the Fund or by the vote of a majority of the outstanding
voting securities of the Fund and
3
(ii) a majority of those Directors who are not parties to this Agreement or
interested persons of any such party cast in person at a meeting called for the
purpose of voting on such approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by MSIM, by the Board of Directors of the Fund or by vote of a majority
of the outstanding voting securities of the Fund, or by the Local Manager, on
sixty days' written notice to the other party. This Agreement shall
automatically terminate in the event of its assignment or in the event of the
termination of the Advisory Agreement. Any termination shall be without
prejudice to the completion of transactions already initiated.
ARTICLE VII
AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Directors of the Fund or by the vote of a
majority of outstanding voting securities of the Fund and (ii) a majority of
those Directors who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting on
such approval.
ARTICLE VIII
DEFINITIONS OF CERTAIN TERMS
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person" used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the rules and regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under
said Act.
ARTICLE IX
GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
4
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC.
By: Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT LIMITED
By: Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Director
5
SCHEDULE A
PORTFOLIO
Global Value Equity Portfolio
International Equity Portfolio
International Magnum Portfolio
International Small Cap Portfolio
European Value Equity Portfolio
Global Franchise Portfolio
International Real Estate Portfolio
Global Real Estate
6
SUB-ADVISORY AGREEMENT
ANNEX 1
1. DEALING AND COUNTERPARTIES
1.1 The Local Manager will act in good faith and with due diligence in its
choice and use of counterparties. Unless directed by MSIM or the Fund to
use a specific counterparty, the Local Manager undertakes to secure Best
Execution (as defined in the FSA Rules) of all the Fund's transactions. In
securing Best Execution, the Local Manager will take reasonable care to
obtain the best available price in accordance with FSA Rules. Subject
thereto, the Local Manager may deal on such markets or exchanges and with
such counterparties (including any affiliate) as it thinks fit. All
transactions will be effected in accordance with the rules and regulations
of the relevant market or exchange, and the Local Manager may take all such
steps as may be required or permitted by such rules and regulations and/or
by appropriate market practice.
1.2 If any counterparty should fail to deliver any necessary documents or to
complete any transaction, the Local Manager will take all reasonable steps
on behalf of MSIM or the Fund to rectify such failure or obtain
compensation. MSIM shall procure that the Fund pay all reasonable costs and
expenses properly incurred by the Local Manager.
1.3 The Local Manager may aggregate the Fund's orders with orders of other
clients (whether or not connected with the Local Manager). MSIM is aware
and has made the Fund aware that the aggregation of the Fund's orders with
those of other clients may result in the Fund obtaining on some occasions a
more favourable price and on others a less favourable price, than if such
orders had not been aggregated.
2. MATERIAL INTERESTS
2.1 The Local Manager and any affiliate may, subject to the limitations of the
U.S. Investment Company Act of 1940 (as amended), and to the overriding
principles of suitability and Best Execution and without prior reference to
MSIM or the Fund, effect transactions in which the Local Manager or
affiliate has, directly or indirectly, a material interest or a
relationship of any description with another party, which may involve a
potential conflict with the Local Manager's duty to MSIM or the Fund.
Neither the Local Manager nor any affiliate shall be liable to account to
MSIM or the Fund for any profit, commission or remuneration made or
received from or by reason of such transactions or any connected
transactions nor will the Local Manager's fees, unless otherwise provided,
be abated. For example, such potential conflicting interests or duties may
arise because:
(a) any of the Local Manager's or affiliate's directors or employees is a
director of, holds or deals in securities of, or is otherwise
interested in any company whose securities are held or dealt in on
behalf of the Fund;
(b) the transaction is in the securities of a company for which an
affiliate has provided corporate finance advice, underwritten, managed
or arranged an issue or offer for sale;
(c) the Local Manager deals on behalf of the Fund with an affiliate;
7
(e) the Local Manager may effect transactions involving placings and/or
new issues with an Affiliate who may be acting as principal or
receiving agent's commission. Affiliates may retain any agent's
commission or discount or other benefit (including directors' fees)
that accrues to them; or
(f) the transaction is in units or shares of a collective investment
scheme (regulated or unregulated) of which the Local Manager or any
affiliate is the manager, operator, banker, adviser, custodian or
director.
2.2 Nothing in this Agreement shall oblige the Local Manager or any affiliate
to accept responsibilities more extensive than those set out in this
Agreement or shall give rise to any fiduciary or equitable duties which
would prevent or hinder any affiliate acting both as market-maker and
broker, principal or agent, dealing with other affiliates and other clients
and generally effecting transactions as provided above nor from retaining
any remuneration received in respect thereof.
3. RECORDS AND REPORTS
3.1 The Local Manager will keep accurate and detailed records with respect to
all receipts, investments, sales, disbursements and other transactions
carried out by the Local Manager for MSIM or with the Fund.
3.2 All records held pursuant to this clause by the Local Manager shall be open
to inspection by MSIM or the Fund and the Local Manager will provide MSIM
and the Fund with such access as it itself has to records held by any
relevant third party, in each case at reasonable times during business
hours and upon the giving of reasonable notice by MSIM or the Fund.
3.3 The Local Manager shall, not later than 10 working days following the end
of each calendar month, furnish to MSIM a statement showing all
transactions that have occurred in the Fund and a monthly listing of all
investments and cash balances held as of the end of such month.
3.4 The monthly statement will show the cost or amount realised (in the case of
any relevant new purchase or sale) and, where available, the current value
(where applicable) of each investment held in the Fund and any income
arising on the Fund's account during the relevant calendar month, and will
also include a statement showing the measure of the performance of the
assets of the Fund. The basis of all valuations will be as stated in the
first monthly statement, unless otherwise agreed.
3.5 The Local Manager will not provide MSIM with an individual trade
confirmation of each portfolio transaction unless MSIM has specifically
requested the Local Manager to do so.
4. FORCE MAJEURE
The Local Manager shall not be responsible or liable to MSIM or the Fund
for any failure or delay in the performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without limitation,
acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities; computer (hardware or software) or
communications services; accidents; labor disputes; acts of civil or
military authority or governmental actions; it being understood that the
Local Manager shall use reasonable efforts
8
which are consistent with accepted practices in the investment management
industry to resume performance as soon as practicable under the
circumstances.
5. COMPLAINTS
The Local Manager maintains procedures in accordance with FSA Rules for the
effective consideration and handling of client complaints. Complaints will
be considered promptly by the appropriate supervisory manager who is not
personally involved in the subject matter of the complaint. Where
appropriate, the complaint will be passed to the Compliance Officer.
6. CONFIDENTIALITY AND DISCLOSURE
The Local Manager and MSIM undertake to keep private and confidential all
information acquired in connection with this Agreement, and not to disclose
such information to any person except to the extent that:
(a) the other party gives prior consent; or
(b) the Local Manager is required to disclose the information by the FSA,
the Bank of England, the London Stock Exchange or any other recognised
investment exchange, the City Panel on Takeovers and Mergers or any
other regulatory authority having jurisdiction over the Local Manager
or the performance by it of its obligations under this Agreement or by
English Law; or
(c) disclosure to a counterparty to a transaction effected for the Fund is
required as a condition to such transaction; or
(d) disclosure is necessary to enable the Local Manager to perform its
obligations under this Agreement.
7. DATA PROTECTION
7.1 The Local Manager will, in connection with the Sub-Advisory Agreement,
comply (where applicable) with the UK Data Protection Xxx 0000 and other
applicable data protection laws and regulations (together, the "Data
Protection Laws").
7.2 MSIM will comply (where applicable) with the Data Protection Laws and
(where applicable) take all reasonable steps to ensure that it has obtained
all necessary consents for the Local Manager to process any personal data
for the purposes of the Agreement.
9
