Exhibit (d46)
FORM OF AMENDED AND RESTATED ADVISORY AGREEMENT
AMENDED AND RESTATED ADVISORY AGREEMENT, dated [ ], 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: By:
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ATTEST TIFF ADVISORY SERVICES, INC.
By: By:
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