For period ending November 30, 2000 Exhibit 77Q1(e)
File number 811-4040
INVESTMENT MANAGEMENT AND
ADMINISTRATION CONTRACT
Contract made as of March 1, 2001, between PAINEWEBBER MANAGED
INVESTMENTS TRUST, a Massachusetts business trust ("Trust"), and
XXXXXXXX XXXXXXXX ASSET MANAGEMENT INC. ("Xxxxxxxx Xxxxxxxx"),
a Delaware corporation registered as an investment adviser under
the Investment Advisers Act of 1940, as amended ("Advisers Act"),
and as a broker-dealer under the Securities Exchange Act of 1934,
as amended ("1934 Act");
WHEREAS the Trust is registered under the Investment Company Act
of 1940, as amended ("1940 Act"), as an open-end management
investment company, and is authorized to offer for public sale
distinct series of shares of beneficial interest; and
WHEREAS the Trust desires and intends to have one or more investment
advisers ("Sub-Advisers") provide investment advisory and portfolio
management services with respect to the series of shares of
beneficial interest of the Trust designated as PaineWebber High
Income Fund and each such other series as to which this Contract
may apply (each a "Series"); and
WHEREAS the Trust desires to retain Xxxxxxxx Xxxxxxxx as investment
manager and administrator to furnish certain administrative and
portfolio management services to the Trust with respect to the
Series, and Xxxxxxxx Xxxxxxxx is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto
as follows:
1. Appointment. The Trust hereby appoints Xxxxxxxx Xxxxxxxx as
investment manager and administrator of the Trust and each Series
for the period and on the terms set forth in this Contract.
Xxxxxxxx Xxxxxxxx accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. Duties as Investment Manager; Appointment of Sub-Advisers
(a) Subject to the oversight and direction of the Trust's Board of
Trustees ("Board"), Xxxxxxxx Xxxxxxxx will provide to the Trust
investment management evaluation services principally by performing
initial reviews of prospective Sub-Advisers for each Series and
overseeing and monitoring performance of the Sub-Advisers
thereafter. Xxxxxxxx Xxxxxxxx agrees to report to the Trust the
results of its evaluation, oversight and monitoring functions
and to keep books and records of the Trust in connection
therewith. Upon the request of the Board, Xxxxxxxx Xxxxxxxx will
provide portfolio management services with respect to any portion
of Series' assets for which no Sub-Adviser is responsible.
Xxxxxxxx Xxxxxxxx further agrees to communicate performance
expectations and evaluations to the Sub-Advisers, and to recommend
to the Trust whether agreements with Sub-Advisers should be
renewed, modified or terminated.
(b) Xxxxxxxx Xxxxxxxx is responsible for informing the Sub-Advisers
of the investment objective(s), policies and restrictions of the
Series for which the Sub-Adviser is responsible, for informing or
ascertaining that it is aware of other legal and regulatory
responsibilities applicable to the Sub-Adviser with respect to the
Series for which the Sub-Adviser is responsible, and for
monitoring the Sub-Advisers' discharge of their duties; but
Xxxxxxxx Xxxxxxxx is not responsible for the specific actions
(or inactions) of a Sub-Adviser in the performance of the duties
assigned to it.
(c) With respect to each Sub-Adviser for a Series, Xxxxxxxx Xxxxxxxx
shall enter into an agreement ("Sub-Advisory Agreement") with the
Sub-Adviser in substantially the form previously approved by the
Board and shall seek approval of the Board or a Series' shareholders
in a manner consistent with the 1940 Act, the rules thereunder or
any applicable exemptive order.
(d) Xxxxxxxx Xxxxxxxx shall be responsible for the fees payable to
and shall pay the Sub-Adviser of a Series the fee as specified
in the Sub-Advisory Agreement relating thereto.
(e) In the event that the Board shall request that Xxxxxxxx Xxxxxxxx
provide any portfolio management services to one or more Series,
Xxxxxxxx Xxxxxxxx shall comply with this paragraph 2(e). Xxxxxxxx
Xxxxxxxx agrees that in placing orders with brokers, it will
attempt to obtain the best net result in terms of price and
execution; provided that, on behalf of any Series, Xxxxxxxx
Xxxxxxxx may, in its discretion, use brokers who provide the Series
with research, analysis, advice and similar services to execute
portfolio transactions on behalf of the Series, and Xxxxxxxx
Xxxxxxxx may pay to those brokers in return for brokerage and
research services a higher commission than may be charged by other
brokers, subject to Xxxxxxxx Xxxxxxxx' determining in good faith
that such commission is reasonable in terms either of the particular
transaction or of the overall responsibility of Xxxxxxxx Xxxxxxxx
to such Series and its other clients and that the total commissions
paid by such Series will be reasonable in relation to the benefits
to the Series over the long term. In no instance will portfolio
securities be purchased from or sold to Xxxxxxxx Xxxxxxxx, or any
affiliated person thereof, except in accordance with the federal
securities laws and the rules and regulations thereunder.
Xxxxxxxx Xxxxxxxx may aggregate sales and purchase orders with
respect to the assets of the Series with similar orders being made
simultaneously for other accounts advised by Xxxxxxxx Xxxxxxxx
or its affiliates. Whenever Xxxxxxxx Xxxxxxxx simultaneously
places orders to purchase or sell the same security on behalf of a
Series and one or more other accounts advised by Xxxxxxxx Xxxxxxxx,
such orders will be allocated as to price and amount among all
such accounts in a manner believed to be equitable over time to
each account; the Trust recognizes that in some cases this
procedure may adversely affect the results obtained for the Series.
In providing any portfolio management services, Xxxxxxxx Xxxxxxxx
will oversee the maintenance of all books and records with respect
to the securities transactions of each Series, and will furnish the
Board with such periodic and special reports as the Board
reasonably may request. In compliance with the requirements of
Rule 31a-3 under the 1940 Act, Xxxxxxxx Xxxxxxxx hereby agrees
that all records which it maintains for the Trust are the property
of the Trust, agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act any records which it maintains for
the Trust and which are required to be maintained by Rule 31a-1
under the 1940 Act and further agrees to surrender promptly to
the Trust any records which it maintains for the Trust upon
request by the Trust. In providing any portfolio management
services, Xxxxxxxx Xxxxxxxx will oversee the computation of the net
asset value and the net income of each Series as described in the
currently effective registration statement of the Trust under the
Securities Act of 1933, as amended, and the 1940 Act and any
supplements thereto ("Registration Statement") or as more frequently
requested by the Board. The Fund hereby authorizes Xxxxxxxx Xxxxxxxx and any
entity or persons associated with Xxxxxxxx Xxxxxxxx which is a
member of a national securities exchange to effect any transaction
on such exchange for the account of the Fund, which transaction is
permitted by Section 11(a) of the 1934 Act and Rule 11a2-2(T)
thereunder, and the Fund hereby consents to the retention of
compensation by Xxxxxxxx Xxxxxxxx or any entity or persons
associated with Xxxxxxxx Xxxxxxxx for such transactions.
3. Duties as Administrator. Xxxxxxxx Xxxxxxxx will administer the
affairs of the Trust and Series subject to the oversight and
direction of the Board and the following understandings:
(a) Xxxxxxxx Xxxxxxxx will supervise all aspects of the operations
of the Trust and the Series, including oversight of transfer agency,
custodial and accounting services, except as hereinafter set forth;
provided, however, that nothing herein contained shall be deemed to
relieve or deprive the Board of any of its responsibilities with
respect to the conduct of the affairs of the Trust and the Series.
(b) Xxxxxxxx Xxxxxxxx will provide the Trust and each Series with
such corporate, administrative and clerical personnel (including
officers of the Trust) and services as are reasonably deemed
necessary or advisable by the Board, including the maintenance of
certain books and records of the Trust and Series in connection
with the administration of the Trust.
(c) Xxxxxxxx Xxxxxxxx will arrange, but not pay, for the periodic
preparation, updating, filing and dissemination (as applicable) of
the Trust's Registration Statement, proxy material, tax returns and
required reports to shareholders of each Series and the Securities
and Exchange Commission and other appropriate federal or state
regulatory authorities.
(d) Xxxxxxxx Xxxxxxxx will provide the Trust and each Series with,
or obtain for it, adequate office space and all necessary office
equipment and services, including telephone service, heat,
utilities, stationery supplies and similar items.
(e) Xxxxxxxx Xxxxxxxx will provide the Board on a regular basis
with economic and investment analyses and reports and make
available to the Board upon request any economic, statistical and
investment services normally available to institutional or other
customers of Xxxxxxxx Xxxxxxxx.
4. Further Duties. In all matters relating to the performance of
this Contract, Xxxxxxxx Xxxxxxxx will act in conformity with the
Declaration of Trust, By-Laws and the currently effective
Registration Statement and with the instructions and directions of
the Board and will comply with the requirements of the 1940 Act,
the Advisers Act, and the rules under each, and all other
applicable federal and state laws and regulations.
5. Services Not Exclusive. The services furnished by Xxxxxxxx
Xxxxxxxx hereunder are not to be deemed exclusive and Xxxxxxxx
Xxxxxxxx shall be free to furnish similar services to others so
long as its services under this Contract are not impaired thereby.
Nothing in this Contract shall limit or restrict the right of any
director, officer or employee of Xxxxxxxx Xxxxxxxx, who may also
be a Trustee, officer or employee of the Trust, to engage in any
other business or to devote his or her time and attention in part
to the management or other aspects of any other business, whether
of a similar nature or a dissimilar nature.
6. Expenses.
(a) During the term of this Contract, each Series will bear all
expenses, not specifically assumed by Xxxxxxxx Xxxxxxxx, incurred
in its operations and the offering of its shares.
(b) Expenses borne by each Series will include but not be
limited to the following (or the Series' proportionate share of the
following): (i) the cost (including brokerage commissions) of
securities purchased or sold by the Series and any losses incurred
in connection therewith; (ii) fees payable to and expenses incurred
on behalf of the Series by Xxxxxxxx Xxxxxxxx under this Contract;
(iii) expenses of organizing the Series; (iv) filing fees and
expenses relating to the registrations and qualification of the
Series' shares and the Trust under federal and/or state securities
laws and maintaining such registration and qualifications; (v) fees
and salaries payable to the Trust's Trustees and officers who
are not interested persons of the Trust or Xxxxxxxx Xxxxxxxx; (vi)
all expenses incurred in connection with the Trustees' services,
including travel expenses; (vii) taxes (including any income or
franchise taxes) and governmental fees; (viii) costs of any
liability, uncollectible items of deposit and other insurance
and fidelity bonds; (ix) any costs, expenses or losses arising
out of a liability of or claim for damages or other relief asserted
against the Trust or the Series for violation of any law; (x) legal,
accounting and auditing expenses, including legal fees of special
counsel for those Trustees of the Trust who are not interested
persons of the Trust; (xi) charges of custodians, transfer agents
and other agents; (xii) costs of preparing share certificates;
(xiii) expenses of setting in type and printing prospectuses and
supplements thereto, statements of additional information and
supplements thereto, reports and proxy materials for existing
shareholders; (xiv) costs of mailing prospectuses and supplements
thereto, statements of additional information and supplements
thereto, reports and proxy materials to existing shareholders;
(xv) any extraordinary expenses (including fees and disbursements
of counsel, costs of actions, suits or proceedings to which the
Trust is a party and the expenses the Trust may incur as a result of
its legal obligation to provide indemnification to its officers,
Trustees, agents and shareholders) incurred by the Trust or the
Series; (xvi) fees, voluntary assessments and other expenses
incurred in connection with membership in investment company
organizations; (xvii) costs of mailing and tabulating proxies and
costs of meetings of shareholders, the Board and any committees
thereof; (xviii) the cost of investment company literature and
other publications provided by the Trust to its Trustees and
officers; (xix) costs of mailing, stationery and communications
equipment; (xx) expenses incident to any dividend, withdrawal or
redemption options; (xxi) charges and expenses of any outside
pricing service used to value portfolio securities; (xxii) interest
on borrowings of the Trust; and (xxiii) any fees or expenses
related to license agreements with respect to securities indices.
(c) The Trust or a Series may pay directly any expenses incurred
by it in its normal operations and, if any such payment is
consented to by Xxxxxxxx Xxxxxxxx and acknowledged as otherwise
payable by Xxxxxxxx Xxxxxxxx pursuant to this Contract, a Series may
reduce the fee payable to Xxxxxxxx Xxxxxxxx pursuant to Paragraph 7
thereof by such amount. To the extent that such deductions exceed
the fee payable to Xxxxxxxx Xxxxxxxx on any monthly payment date,
such excess shall be carried forward and deducted in the same manner
from the fee payable on succeeding monthly payment dates.
(d) Xxxxxxxx Xxxxxxxx will assume the cost of any compensation for
services provided to the Trust received by the officers of the Trust
and by those Trustees who are interested persons of the Trust.
(e) The payment or assumption by Xxxxxxxx Xxxxxxxx of any expenses
of the Trust or a Series that Xxxxxxxx Xxxxxxxx is not required by
this Contract to pay or assume shall not obligate Xxxxxxxx Xxxxxxxx
to pay or assume the same or any similar expense of the Trust or a
Series on any subsequent occasion.
7. Compensation.
(a) For the services provided and the expenses assumed pursuant to
this Contract, the Trust will pay to Xxxxxxxx Xxxxxxxx a fee with
respect to PaineWebber High Income Fund, computed daily and paid
monthly, at an annual rate of 0.50% of average daily net assets.
(b) For the services provided and the expenses assumed pursuant to
this Contract with respect to any Series hereafter established,
the Trust will pay to Xxxxxxxx Xxxxxxxx from the assets of such
Series a fee in an amount to be agreed upon in a written fee
agreement ("Fee Agreement") executed by the Trust on behalf of such
Series and by Xxxxxxxx Xxxxxxxx. All such Fee Agreements shall
provide that they are subject to all terms and conditions of
this Contract.
(c) The fee shall be computed daily and paid monthly to Xxxxxxxx
Xxxxxxxx on or before the last business day of the next succeeding
calendar month.
(d) If this Contract becomes effective or terminates before the end
of any month, the fee for the period from the effective day to the
end of the month or from the beginning of such month to the date of
termination, as the case may be, shall be prorated according to
the proportion which such period bears to the full month in which
such effectiveness or termination occurs.
8. Limitation of Liability of Xxxxxxxx Xxxxxxxx. Xxxxxxxx Xxxxxxxx
and its officers, directors, employees and delegates, including any
Sub-Adviser or Sub-Administrator to a Series, shall not be liable
for any error of judgment or mistake of law or for any loss
suffered by any Series, the Trust or any of its shareholders, in
connection with the matters to which this Contract relates, except
to the extent that such a loss results from willful misfeasance,
bad faith or gross negligence on its part in the performance of
its duties or from reckless disregard by it of its obligations and
duties under this Contract. Any person, even though also an
officer, director, employee, or agent of Xxxxxxxx Xxxxxxxx, who
may be or become an officer, Trustee, employee or agent of the
Trust shall be deemed, when rendering services to a Series or the
Trust or acting with respect to any business of such Series or the
Trust, to be rendering such service to or acting solely for the
Series or the Trust and not as an officer, director, employee,
or agent or one under the control or direction of Xxxxxxxx
Xxxxxxxx even though paid by it.
9. Limitation of Liability of the Trustees and Shareholders of the
Trust. The Trustees of the Trust and the shareholders of any
Series shall not be liable for any obligations of any Series or the
Trust under this Agreement and Xxxxxxxx Xxxxxxxx agrees that, in
asserting any rights or claims under this Agreement, it shall look
only to the assets and property of the Trust in settlement of
such right or claim, and not to such Trustees or shareholders.
10. Duration and Termination.
(a) This Contract shall become effective for each Series upon
the day and year first written above, provided that, with respect
to any Series, this Contract shall not take effect unless it has
first been approved (i) by a vote of a majority of those Trustees
of the Trust who are not parties to this Contract or interested
persons of any such party cast in person at a meeting called for
the purpose of voting on such approval and (ii) by vote of a
majority of that Series' outstanding voting securities.
(b) Unless sooner terminated as provided herein, this Contract
shall continue in effect for two years from the above written date.
Thereafter, if not terminated, this Contract shall continue
automatically for successive periods of twelve months each, provided
that such continuance is specifically approved at least annually
(i) by a vote of a majority of those Trustees of the Trust who are
not parties to this Contract or interested persons of any such
party, cast in person at a meeting called for the purpose of
voting on such approval, and (ii) by the Board or, with respect
to any given Series, by vote of a majority of the outstanding voting
securities of such Series.
(c) Notwithstanding the foregoing, with respect to a Series, this
Contract may be terminated at any time, without the payment of any
penalty, by vote of the Board or by a vote of a majority of the
outstanding voting securities of the Series on sixty days' written
notice to Xxxxxxxx Xxxxxxxx and may be terminated by Xxxxxxxx
Xxxxxxxx at any time, without the payment of any penalty, on sixty
days' written notice to the Trust. Termination of this Contract
with respect to a Series shall in no way affect the continued
validity of this Contract or the performance thereunder with respect
to any other Series. This Contract will terminate automatically
in the event of its assignment.
11. Amendment of this Contract. No provision of this Contract 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
amendment of this contract as to a Series shall be effective until approved by
vote of a majority of the Series' outstanding voting securities.
12. Governing Law. This Contract shall be construed in accordance
with the laws of the State of New York, without giving effect to
the conflicts of laws principles thereof, and in accordance with
the 1940 Act, provided, however, that section 9 above will be
construed in accordance with the laws of the Commonwealth of
Massachusetts. To the extent that the applicable laws of the State
of New York or the Commonwealth of Massachusetts conflict with
the applicable provisions of the 1940 Act, the latter shall control.
13. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction
or effect. If any provision of this Contract shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Contract shall not be affected thereby. This
Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in
this Contract, the terms "majority of the outstanding voting
securities," "affiliated person," "interested person," "assignment,"
"broker," "investment adviser," "national securities exchange,"
"net assets," "prospectus," "sale," "sell" and "security" shall have
the same meaning as such terms have in the 1940 Act, subject to such
exemption as may be granted by the Securities and Exchange
Commission by any rule, regulation or order. Where the effect of a
requirement of the 1940 Act reflected in any provision of this
contract is relaxed by a rule, regulation or order of the Securities
and Exchange Commission, whether of special or general application,
such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated as of the
day and year first above written.
PAINEWEBBER MANAGED INVESTMENTS TRUST
Attest: /s/ Xxxxx Xxxxxx
By: /s/ Xxxxxx X. X'Xxxxxxx
Xxxxxx X. X'Xxxxxxx
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
Attest: /s/ Xxxxxx XxXxxxxx
By: /s/ Xxx X. Xxxxxxxx
Xxx X. Xxxxxxxx
For period ending May 31, 2001 Exhibit
Q1(e)
File number 811-4040
SUB-ADVISORY CONTRACT
Agreement made as of March 1, 2001 ("Contract") between XXXXXXXX
XXXXXXXX ASSET MANAGEMENT INC., a Delaware corporation ("Xxxxxxxx
Xxxxxxxx"), and Massachusetts Financial Services Company, a
Delaware corporation ("Sub-Adviser").
RECITALS
(1) Xxxxxxxx Xxxxxxxx has entered into an Investment Management and
Administration Agreement, dated March 1, 2001 ("Management
Agreement"), with PaineWebber Managed Investments Trust ("Trust"),
an open-end management investment company registered under the
Investment Company Act of 1940, as amended ("1940 Act"), with
respect to the series of the Trust designated as PaineWebber High
Income Fund ("Series");
(2) Xxxxxxxx Xxxxxxxx wishes to retain the Sub-Adviser to furnish
certain investment advisory services to Xxxxxxxx Xxxxxxxx and the
Series; and
(3) The Sub-Adviser is willing to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, Xxxxxxxx Xxxxxxxx and the Sub-Adviser
agree as follows:
1. Appointment. Xxxxxxxx Xxxxxxxx hereby appoints the Sub-Adviser
as an investment sub-adviser with respect to the Series for the
period and on the terms set forth in this Contract. The Sub-Adviser
accepts that appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. Duties as Sub-Adviser.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees ("Board") and review by Xxxxxxxx Xxxxxxxx, and any written
guidelines adopted by the Board or Xxxxxxxx Xxxxxxxx and furnished
to the Sub-Adviser, the Sub-Adviser will provide a continuous
investment program for all or a designated portion of the assets
("Segment") of the Series, including investment research and
discretionary management with respect to all securities and
investments and cash equivalents in the Series or Segment. The
Sub-Adviser will determine from time to time what investments will
be purchased, retained or sold by the Series or Segment. The
Sub-Adviser will be responsible for placing purchase and sell
orders for investments and for other related transactions for the
Series or Segment. The Sub-Adviser will be responsible for voting
proxies of issuers of securities held by the Series or Segment.
The Sub-Adviser understands that the Series' assets need to be
managed so as to permit it to qualify or to continue to qualify
as a regulated investment company under Subchapter M of the
Internal Revenue Code, as amended ("Code"). The Sub-Adviser will
provide services under this Contract in accordance with the Series'
investment objective, policies and restrictions as stated in the
Trust's currently effective registration statement under the 1940
Act, and any amendments or supplements thereto
("Registration Statement").
(b) The Sub-Adviser agrees that, in placing orders with brokers,
it will seek to obtain the best net result in terms of price and
execution; provided that, on behalf of the Series, the Sub-Adviser
may, in its discretion, use brokers that provide the Sub-Adviser
with research, analysis, advice and similar services to execute
portfolio transactions on behalf of the Series or Segment, and the
Sub-Adviser may pay to those brokers in return for brokerage and
research services a higher commission than may be charged by other
brokers, subject to the Sub-Adviser's determining in good faith
that such commission is reasonable in terms either of the particular
transaction or of the overall responsibility of the Sub-Adviser
to the Series or its other clients and that the total commissions
paid by the Series or Segment will be reasonable in relation to
the benefits to the Series over the long term. In no instance will
portfolio securities be purchased from or sold to Xxxxxxxx Xxxxxxxx
or the Sub-Adviser, or any affiliated person thereof, except in
accordance with the federal securities laws and the rules and
regulations thereunder. The Sub-Adviser may aggregate sales and
purchase orders with respect to the assets of the Series or Segment
with similar orders being made simultaneously for other accounts
advised by the Sub-Adviser or its affiliates. Whenever the
Sub-Adviser simultaneously places orders to purchase or sell the
same security on behalf of the Series and one or more other accounts
advised by the Sub-Adviser, the orders will be allocated as to
price and amount among all such accounts in a manner believed to be
equitable over time to each account. Xxxxxxxx Xxxxxxxx recognizes
that in some cases this procedure may adversely affect the results
obtained for the Series or Segment.
(c) The Sub-Adviser will maintain all books and records required
to be maintained pursuant to the 1940 Act and the rules and
regulations promulgated thereunder with respect to transactions by
the Sub-Adviser on behalf of the Series or Segment, and will
furnish the Board and Xxxxxxxx Xxxxxxxx with such periodic and
special reports as the Board or Xxxxxxxx Xxxxxxxx reasonably
may request. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Sub-Adviser hereby agrees that all
records that it maintains for the Series are the property of the
Trust, agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act any records that it maintains for the Trust and
that are required to be maintained by Rule 31a-1 under the 1940 Act,
and further agrees to surrender promptly to the Trust any records
or copies thereof that it maintains for the Series upon request
by the Trust.
(d) At such times as shall be reasonably requested by the
Board or Xxxxxxxx Xxxxxxxx, the Sub-Adviser will provide the Board
and Xxxxxxxx Xxxxxxxx with economic and investment analyses and
reports as well as quarterly reports setting forth the performance
of the Series or Segment and make available to the Board and
Xxxxxxxx Xxxxxxxx any economic, statistical and investment services
that the Sub-Adviser normally makes available to its institutional
or other customers.
(e) In accordance with procedures adopted by the Board, as amended
from time to time, the Sub-Adviser is responsible for assisting in
the fair valuation of all portfolio securities in the Series or
Segment, in accordance with procedures adopted by the Board, as
amended from time to time. The Sub-Adviser will use its reasonable
efforts to arrange for the provision of a price from one or more
parties independent of the Sub-Adviser for each portfolio security
for which the custodian does not obtain prices in the ordinary
course of business from an automated pricing service.
3. Further Duties. In all matters relating to the performance of
this Contract, the Sub-Adviser and Xxxxxxxx Xxxxxxxx will act in
conformity with the Trust's Declaration of Trust, By-Laws and
Registration Statement and with the written instructions and
written directions of the Board and will comply with the requirements
of the 1940 Act and the Investment Advisers Act of 1940, as amended
("Advisers Act") and the rules under each, Subchapter M of the
Code, as applicable to regulated investment companies; and all other
federal and state laws and regulations applicable to the Trust
and the Series. Xxxxxxxx Xxxxxxxx agrees to provide to the
Sub-Adviser copies of the Trust's Declaration of Trust, By-Laws,
Registration Statement, written instructions and directions of
the Board and Xxxxxxxx Xxxxxxxx, and any amendments or supplements
to any of these materials as soon as practicable after such
materials become available; and further agrees to identify to the
Sub-Adviser in writing any broker-dealers that are affiliated
with Xxxxxxxx Xxxxxxxx (other than PaineWebber Incorporated and
Xxxxxxxx Xxxxxxxx itself).
4. Expenses. During the term of this Contract, the Sub-Adviser
will bear all expenses incurred by it in connection with its
services under this Contract. The Sub-Adviser shall not be
responsible for any expenses incurred by the Trust, the Series
or Xxxxxxxx Xxxxxxxx.
5. Compensation.
(a) For the services provided and the expenses assumed by the
Sub-Adviser pursuant to this Contract, Xxxxxxxx Xxxxxxxx, not the
Series, will pay to the Sub-Adviser a sub-advisory fee, computed
daily and paid monthly, at an annual rate of 0.45% of the average
daily net assets of the Series or Segment (computed in the manner
specified in the Management Agreement) and will provide the
Sub-Adviser with a schedule showing the manner in which the fee
was computed. If the Sub-Adviser is managing a Segment, its fees
will be based on the value of assets of the Series within the
Sub-Adviser's Segment.
(b) The fee shall be accrued daily and payable monthly to the
Sub-Adviser on or before the fifteenth day of the next succeeding
calendar month.
(c) If this Contract becomes effective or terminates before the
end of any month, the fee for the period from the effective date to
the end of the month or from the beginning of such month to the
date of termination, as the case may be, shall be pro-rated
according to the proportion that such period bears to the full month
in which such effectiveness or termination occurs.
6. Limitation of Liability.
(a) The Sub-Adviser shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Series, the
Trust, its shareholders or by Xxxxxxxx Xxxxxxxx in connection with
the matters to which this Contract relates, except a loss resulting
from willful misfeasance, bad faith or gross negligence on its
part in the performance of its duties or from reckless disregard
by it of its obligations and duties under this Contract.
(b) Xxxxxxxx Xxxxxxxx shall indemnify, defend and hold harmless
the Sub-Adviser, its affiliates, and each of their respective
directors, officers, employees, shareholders, agents and
representatives (collectively, the "Indemnities") from and against
any and all losses, claims, damages, liabilities, costs and expenses
(including reasonable attorney's fees) arising from or related to
the services contemplated under this Agreement, except to the
extent any such losses, claims, damages, liabilities, costs and
expenses result from willful misfeasance, bad faith or gross
negligence on the Sub-Adviser's part in the performance of its
duties or from reckless disregard by the Sub-Adviser of its
obligations and duties under this Agreement.
(c) In no event will the Sub-Adviser have any responsibilities
for any other series of the Trust, for any portion of the Series'
investments not managed by the Sub-Adviser or for the acts or
omissions of any other sub-adviser to the Trust or Series.
In particular, in the event the Sub-Adviser shall manage only a
portion of the Series' investments, the Sub-Adviser shall have no
responsibility for the Series' being in violation of any applicable
law or regulation or investment policy or restriction applicable to
the Series as a whole or for the Series' failing to qualify as a
regulated investment company under the Code, if the securities and
other holdings of the Segment managed by the Sub-Adviser are such
that such Segment would not be in such violation or fail to so
qualify if such segment were deemed a separate series of the Trust
or a separate "regulated investment company" under the Code.
Nothing in this section shall be deemed a limitation or waiver
of any obligation or duty that may not by law be limited or waived.
7. Representations.
(a) The Sub-Adviser (i) is registered as an investment adviser
under the Advisers Act and will continue to be so registered for
so long as this Contract remains in effect; (ii) is not prohibited
by the 1940 Act or the Advisers Act from performing the services
contemplated by this Contract; (iii) has met and will seek
to continue to meet for so long as this Contract remains in
effect, any other applicable federal or state requirements,
or the applicable requirements of any regulatory or industry
self-regulatory agency necessary to be met in order to perform
the services contemplated by this Contract; (iv) has the authority
to enter into and perform the services contemplated by this Contract;
and (v) will promptly notify Xxxxxxxx Xxxxxxxx of the occurrence
of any event that would disqualify the Sub-Adviser from serving as
a sub-investment adviser of an investment company pursuant to
Section 9(a) of the 1940 Act or otherwise.
(b) Xxxxxxxx Xxxxxxxx (i) is registered as an investment
adviser under the Advisers Act and will continue to be so registered
for so long as this Contract remains in effect; (ii) is not
prohibited by the 1940 Act or the Advisers Act from performing
the services as investment adviser contemplated by this Contract;
(iii) has met and will seek to continue to meet for so long as
this Contract remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory
or industry self-regulatory agency necessary to be met in order to
perform the services as investment adviser contemplated by this
Contract; and (iv) will promptly notify the Sub-Adviser of the
occurrence of any event that would disqualify Xxxxxxxx Xxxxxxxx
from serving as an investment adviser of any investment company
pursuant to Section 9(a) of the 1940 Act or otherwise.
(c) The Sub-Adviser has adopted a written code of ethics and
appropriate procedures complying with the requirements of Rule 17j-1
under the 1940 Act and has provided Xxxxxxxx Xxxxxxxx and the Board
with a copy of such code of ethics, together with evidence of its
adoption. Within thirty days of the end of the last calendar
quarter of each year that this Contract is in effect, the
president or a vice president of the Sub-Adviser shall certify to
Xxxxxxxx Xxxxxxxx that the Sub-Adviser has complied with the
requirements of Rule 17j-1 during the previous year and that there
has been no material violation of the Sub-Adviser's code of ethics
or, if such a violation has occurred, that appropriate action was
taken in response to such violation. Upon the written request
of Xxxxxxxx Xxxxxxxx, the Sub-Adviser shall permit Xxxxxxxx
Xxxxxxxx, its employees or its agents to examine the reports
required to be made by the Sub-Adviser pursuant to Rule 17j-1,
which are relevant to the services provided under this Contract.
(d) The Sub-Adviser has provided Xxxxxxxx Xxxxxxxx with a copy
of its Form ADV, as most recently filed with the Securities and
Exchange Commission ("SEC") and promptly will furnish a copy of all
amendments to Xxxxxxxx Xxxxxxxx at least annually.
(e) The Sub-Adviser will notify Xxxxxxxx Xxxxxxxx of any change
of control of the Sub-Adviser, including any change of its general
partners or 25% shareholders or 25% limited partners, as applicable,
and any changes in the key personnel who are either the portfolio
manager(s) of the Series or senior management of the Sub-Adviser,
in each case prior to, or promptly after, such change.
(f) The Sub-Adviser agrees that neither it, nor any of its
affiliates, will in any way refer directly or indirectly to its
relationship with the Series, the Trust, Xxxxxxxx Xxxxxxxx or any
of their respective affiliates in offering, marketing or other
promotional materials without the prior express written consent
of Xxxxxxxx Xxxxxxxx.
8. Services Not Exclusive. The services furnished by the
Sub-Adviser hereunder are not to be deemed exclusive and the
Sub-Adviser shall be free to furnish similar services to others so
long as its services under this Contract are not impaired thereby
or unless otherwise agreed to by the parties hereunder in writing.
Nothing in this Contract shall limit or restrict the right of any
trustee, director, officer or employee of the Sub-Adviser, who may
also be a Trustee, officer or employee of the Trust, to engage in
any other business or to devote his or her time and attention in
part to the management or other aspects of any other business,
whether of a similar nature or a dissimilar nature.
9. Duration and Termination.
(a) This Contract shall become effective upon the day and year first
written above, provided that this Contract has been approved for the
Series by a vote of: (i) a majority of those Trustees of the Trust
who are not parties to this Contract or interested persons of any
such party ("Independent Trustees") cast in person at a meeting
called for the purpose of voting on such approval and (ii) a
majority of the Series' outstanding voting securities unless in the
case of (ii), the Trust complies with the terms of any SEC
exemptive order or rule permitting it to modify to the Contract
without such vote.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from its effective date.
Thereafter, if not terminated, this Contract shall continue
automatically for successive periods of twelve months each, provided
that such continuance is specifically approved at least annually:
(i) by a vote of a majority of Independent Trustees, cast in person
at a meeting called for the purpose of voting on such approval, and
(ii) by the Board or by vote of a majority of the outstanding
voting securities of the Series.
(c) Notwithstanding the foregoing, with respect to the Series, this
Contract may be terminated at any time, without the payment of any
penalty, by vote of the Board or by a vote of a majority of the
outstanding voting securities of the Series on sixty days' written
notice to the Sub-Adviser and may be terminated by the Sub-Adviser
at any time, without the payment of any penalty, on sixty days'
written notice to Xxxxxxxx Xxxxxxxx. The Contract may also be
terminated, without payment of penalty, by Xxxxxxxx Xxxxxxxx
(i) upon material breach by the Sub-Adviser of any of the
representations and warranties set forth in Paragraph 7 of this
Contract, if such breach shall not have been cured within a 20
day period after notice of such breach or (ii) if, in the reasonable
judgment of Xxxxxxxx Xxxxxxxx, the Sub-Adviser becomes unable
to discharge its duties and obligations under this Contract,
including circumstances such as financial insolvency of the
Sub-Adviser or other circumstances that could adversely affect
the Series. This Contract will terminate automatically in the
event of its assignment or upon termination of the Advisory
Contract as it relates to the Series.
10. Amendment of this Contract. No provision of this Contract
may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination
is sought. No amendment of this Contract as to the Series shall
be effective until approved by vote of (i) the Independent Trustees
and (ii) a majority of the Series' outstanding voting securities
unless in the case of (ii), the Trust complies with the terms of
any SEC exemptive order or rule permitting it to modify to the
Contract without such vote.
11. Governing Law. This Contract shall be construed in accordance
with the 1940 Act and the laws of the State of New York, without
giving effect to the conflicts of laws principles thereof. To the
extent that the applicable laws of the State of New York conflict
with the applicable provisions of the 1940 Act, the latter
shall control.
12. Miscellaneous. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect. If any provision of this Contract shall be held or made
invalid by a court decision, statute, rule or otherwise, the
remainder of this Contract shall not be affected thereby. This
Contract shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors. As used in this
Contract, the terms "majority of the outstanding voting securities,"
"affiliated person," "interested person," "assignment," "broker,"
"investment adviser," "net assets," "sale," "sell" and "security"
shall have the same meaning as such terms have in the 1940 Act,
subject to such exemption as may be granted by the SEC by any rule,
regulation or order. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Contract
is made less restrictive by a rule, regulation or order of the SEC,
whether of special or general application, such provision shall
be deemed to incorporate the effect of such rule, regulation or
order. This Contract may be signed in counterpart.
13. Notices. Any notice herein required is to be in writing and
is deemed to have been given to the Sub-Adviser or Xxxxxxxx Xxxxxxxx
upon receipt of the same at their respective addresses set forth
below. All written notices required or permitted to be given under
this Contract will be delivered by personal service, by postage
mail return receipt requested or by facsimile machine or a similar
means of same day delivery which provides evidence of receipt
(with a confirming copy by mail as set forth herein). All notices
provided to Xxxxxxxx Xxxxxxxx will be sent to the attention of
Xxxxxx X. X'Xxxxxxx, Deputy General Counsel. All notices
provided to the Sub-Adviser will be sent to the attention of
Xxxxxx X. Xxxxx, Senior Vice President and Associate General Counsel.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their duly authorized signatories as of the date
and year first above written.
Attest: /s/
XXXXXXXX XXXXXXXX ASSET
MANAGEMENT INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-6114
By: /s/ Xxxxx X. Xxxxxx
By: /s/ Xxxxxx X. X'Xxxxxxx
Name: Xxxxx X. Xxxxxx
Name: Xxxxxx X. X'Xxxxxxx
Title: First Vice President
Title: Senior Vice President
Attest: /s/
MASSACHUSETTS FINANCIAL SERVICES
COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
By: /s/ Xxxxxx X. Xxxxx
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary
Title: Director
