SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 23rd day of April, 1999 by and between Xxxxxx
Xxxxxxx Xxxx Xxxxxx Investment Management Inc., a Delaware corporation
(herein referred to as the "Investment Manager"), and Xxxxxx Xxxxxxx Xxxx
Xxxxxx Advisors Inc., a Delaware corporation, (herein referred to as the
"Sub-Advisor").
WHEREAS, Xxxxxx Xxxxxxx Xxxx Xxxxxx Institutional Fund, Inc. (herein
referred to as the "Fund") is engaged in business as an open-end management
investment company and is registered as such under the Investment Company Act
of 1940, as amended (the "Act"); and
WHEREAS, the Investment Manager has entered into an Investment
Management Agreement with the Fund (the "Investment Management Agreement")
wherein the Investment Manager has agreed to provide investment management
services to the various portfolios of the Fund; and
WHEREAS, the Sub-Advisor is registered as an investment adviser under
the Investment Advisers Act of 1940, and engages in the business of acting as
an investment adviser; and
WHEREAS, Investment Manager desires to retain the services of the
Sub-Advisor to render investment advisory services for the Money Market
Portfolio and the Municipal Money Market Portfolio of the Fund (each a
"Portfolio" and together the "Portfolios") in the manner and on the terms and
conditions hereinafter set forth; and
WHEREAS, the Sub-Advisor desires to be retained by the Investment
Manager to perform services on said terms and conditions:
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties hereto as herein set forth, the parties covenant
and agree as follows:
1. Subject to the supervision of the Fund, its officers and Directors,
and the Investment Manager, and in accordance with the investment objectives,
policies and restrictions set forth in the then-current Registration
Statement relating to the Fund, and such investment objectives, policies and
restrictions from time to time prescribed by the Directors of the Fund with
respect to the Portfolios and communicated by the Investment Manager to the
Sub-Advisor, the Sub-Advisor agrees to provide the Fund with investment
advisory services with respect to the Portfolios' investments to obtain and
evaluate such information and advice relating to the economy, securities
markets and securities as it deems necessary or useful to discharge its
duties hereunder; to continuously manage the assets of each Portfolio in a
manner consistent with the investment objective and policies of the applicable
Portfolio; to make decisions as to foreign currency matters and make
determinations as to forward foreign exchange contracts and options and
futures contracts in foreign currencies; shall determine the securities to be
purchased, sold or otherwise disposed of by the Fund and the timing of
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such purchases, sales and dispositions; to take such further action,
including the placing of purchase and sale orders on behalf of the
Portfolios, as it shall deem necessary or appropriate; to furnish to or
place at the disposal of the Fund and Investment Manager such of the
information, evaluations, analyses and opinions formulated or obtained by it
in the discharge of its duties as the Fund and the Investment Manager may,
from time to time, reasonably request. The Investment Manager and the
Sub-Advisor shall each make its officers and employees available to the other
from time to time at reasonable times to review investment policies of the
Portfolios and to consult with each other.
2. The Sub-Advisor shall, at its own expense, maintain such staff and
employ or retain such personnel and consult with such other persons as it
shall from time to time determine to be necessary or useful to the
performance of its obligations under this Agreement. Without limiting the
generality of the foregoing, the staff and personnel of the Sub-Advisor shall
be deemed to include persons employed or otherwise retained by the
Sub-Advisor to furnish statistical and other factual data, advice regarding
economic factors and trends, information with respect to technical and
scientific developments, and such other information, advice and assistance as
the Investment Manager may desire. The Sub-Advisor shall maintain whatever
records as may be required to be maintained by it under the Act. All such
records so maintained shall be made available to the Fund, upon the request
of the Investment Manager or the Fund.
3. The Fund will, from time to time, furnish or otherwise make available
to the Sub-Advisor such financial reports, proxy statements and other
information relating to the business and affairs of the Portfolios as the
Sub-Advisor may reasonably require in order to discharge its duties and
obligations hereunder or to comply with any applicable law and regulations and
the investment objectives, policies and restrictions from time to time
prescribed by the Directors of the Fund.
4. The Sub-Advisor shall bear the cost of rendering the investment
advisory services to be performed by it under this Agreement, and shall, at
its own expense, pay the compensation of the officers and employees, if any,
of the Fund, employed by the Sub-Advisor, and such clerical help and
bookkeeping services as the Sub-Advisor shall reasonably require in
performing its duties hereunder.
5. The Fund assumes and shall pay or cause to be paid all other expenses
of the Fund, including, without limitation: any fees paid to the Investment
Manager; fees pursuant to any plan of distribution that the Fund may adopt;
the charges and expenses of any registrar, any custodian, sub-custodian or
depository appointed by the Fund for the safekeeping of its cash, portfolio
securities and other property, and any stock transfer or dividend agent or
agents appointed by the Fund; brokers' commissions chargeable to the Fund in
connection with portfolio securities transactions to which the Fund is a
party; all taxes, including securities issuance and transfer taxes, and fees
payable by the Fund to federal, state or other governmental agencies or
pursuant to any foreign laws; the cost and expense of engraving or printing
certificates representing shares of the Fund; all costs and expenses in
connection with the registration and maintenance of registration of the Fund
and its shares with the Securities and Exchange Commission and various states
and other
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jurisdictions or pursuant to any foreign laws (including filing fees and
legal fees and disbursements of counsel); the cost and expense of printing
(including typesetting) and distributing prospectuses of the Fund and
supplements thereto to the Fund's shareholders; all expenses of
shareholders' and Directors' meetings and of preparing, printing and mailing
proxy statements and reports to shareholders; fees and travel expenses of
Directors or members of any advisory board or committee who are not
employees of the Investment Manager or Sub-Advisor; all expenses incident to
the payment of any dividend, distribution, withdrawal or redemption whether in
shares or in cash; charges and expenses of any outside service used for
pricing of the Fund's shares; charges and expenses of legal counsel,
including counsel to the Directors of the Fund who are not interested persons
(as defined in the Act) of the Fund, the Investment Manager or the
Sub-Advisor, and of independent accountants, in connection with any matter
relating to the Fund; membership dues of industry associations; interest
payable on Fund borrowings; postage; insurance premiums on property or
personnel (including officers and Directors) of the Fund which inure to its
benefit; extraordinary expenses (including but not limited to legal claims
and liabilities and litigation costs and any indemnification related
thereto); and all other charges and costs of the Fund's operation unless
otherwise explicitly provided herein.
6. For the services to be rendered, the facilities furnished, and the
expenses assumed by the Sub-Advisor, the Investment Manager shall pay to the
Sub-Advisor monthly compensation equal to 40% of the fee that the Investment
Manager receives from each Portfolio pursuant to the Investment Management
Agreement. Any subsequent change in the Investment Management Agreement which
has the effect of raising or lowering the compensation of the Investment
Manager will have the concomitant effect of raising or lowering the fee
payable to the Sub-Advisor under this Agreement. In addition, if the
Investment Manager has undertaken in the Fund's Registration Statement as
filed under the Act (the "Registration Statement") or elsewhere to waive all
or part of its fee under the Investment Management Agreement, the
Sub-Advisor's fee payable under this Agreement will be proportionately
waived in whole or in part. The calculation of the fee payable to the
Sub-Advisor pursuant to this Agreement will be made, each month, at the time
designated for the monthly calculation of the fee payable to the Investment
Manager pursuant to the Investment Management Agreement. If this Agreement
becomes effective subsequent to the first day of a month or shall terminate
before the last day of a month, compensation for the part of the month this
Agreement is in effect shall be prorated in a manner consistent with the
calculation of the fee as set forth above.
7. The Sub-Advisor will use its best efforts in the performance of
investment activities on behalf of the Fund, but in the absence of willful
misfeasance, bad faith, gross negligence or reckless disregard of its
obligations hereunder, the Sub-Advisor shall not be liable to the Investment
Manager or the Fund or any of its investors for any error of judgment or
mistake of law or for any act or omission by the Sub-Advisor or for any
losses sustained by the Fund or its investors.
8. It is understood that any of the shareholders, Directors, officers and
employees of the Fund may be a shareholder, director, officer or employee of,
or be otherwise
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interested in, the Sub-Advisor, and in any person controlled by or under
common control with the Sub-Advisor, and that the Sub-Advisor and any person
controlled by or under common control with the Sub-Advisor may have an
interest in the Fund. It is also understood that the Sub-Advisor and any
affiliated persons thereof or any persons controlled by or under common
control with the Sub-Advisor have and may have advisory, management service
or other contracts with other organizations and persons, and may have other
interests and businesses, and further may purchase, sell or trade any
securities or commodities for their own accounts or for the account of others
for whom they may be acting.
9. This Agreement shall remain in effect with respect to each Portfolio
until March 31, 2001 and from year to year thereafter provided such
continuance is approved at least annually by the vote of holders of a
majority, as defined in the Act, of the outstanding voting securities of the
applicable Portfolio or by the Directors of the Fund, provided, that in
either event such continuance is also approved annually by the vote of a
majority of the Directors of the Fund who are not parties to this Agreement
or "interested persons" (as defined in the Act) of any such party, which vote
must be cast in person at a meeting called for the purpose of voting on such
approval; provided, however, that (a) the Fund may, at any time and without
the payment of any penalty, terminate this Agreement with respect to either
Portfolio or both Portfolios upon thirty days' written notice to the
Investment Manager and the Sub-Advisor, either by majority vote of the
Directors of the Fund or by the vote of a majority of the outstanding voting
securities of the applicable Portfolio(s); (b) this Agreement shall
immediately terminate in the event of its assignment (within the meaning of
the Act) unless such automatic termination shall be prevented by an exemptive
order of the Securities and Exchange Commission; (c) this Agreement shall
immediately terminate in the event of the termination of the Investment
Management Agreement; (d) the Investment Manager may terminate this Agreement
with respect to either Portfolio or both Portfolios without payment of
penalty on thirty days' written notice to the Fund and the Sub-Advisor; and
(e) the Sub-Advisor may terminate this Agreement with respect to either
Portfolio or both Portfolios without the payment of penalty on thirty days'
written notice to the Fund and the Investment Manager. Any notice under this
Agreement shall be given in writing, addressed and delivered, or mailed
post-paid, to the other party at the principal office of such party.
10. This Agreement may be amended by the parties without the vote or
consent of the shareholders of the Portfolios to supply any omission, to
cure, correct or supplement any ambiguous, defective or inconsistent
provision hereof, or if they deem it necessary to conform this Agreement to
the requirements of applicable federal laws or regulations, but neither the
Fund, the Investment Manager nor the Sub-Advisor shall be liable for failing
to do so.
11. This Agreement shall be construed in accordance with the law of the
State of New York and the applicable provisions of the Act. To the extent the
applicable law of the State of New York, or any of the provisions herein,
conflict with the applicable provisions of the Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written in New York, New York.
XXXXXX XXXXXXX XXXX XXXXXX
INVESTMENT MANAGEMENT INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Attest: /s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX XXXXXXX XXXX XXXXXX
ADVISORS INC.
By: /s/ Bkl
---------------------------------
Attest: /s/ XxxXxxx XxXxxxx
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Accepted and agreed to as of
the day and year first above written:
XXXXXX XXXXXXX XXXX XXXXXX
INSTITUTIONAL FUND, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Attest: /s/ Xxxxxxxx X. Xxxxx
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