Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the written instructions and directions received from the Adviser and the Trust as delivered; and (iii) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets. (b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser. (c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act. (d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following: (i) a report of any material changes to the Sub-Adviser Compliance Policies; (ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies; (iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and (iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii). (e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts. (f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. (g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser. (h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board. (i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility. (j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund. (k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing. (l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act. (m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Advisor Managed Portfolios), Sub Advisory Agreement (Advisor Managed Portfolios), Sub Advisory Agreement (Advisor Managed Portfolios)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with any administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the FundPortfolio. Subject to paragraph 1.g. below, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Sub-Adviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, inform the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) b. The Sub-Adviser shall place orders furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning transactions and performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Administrator or the Fund at their reasonable request. Subject to Section 1(g) of this Agreement, the Sub-Adviser shall as a part of complete portfolio compliance testing program, perform quarterly diversification testing under section 817(h) of the Code. The Sub-Adviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that the corrections were made within 30 days of the end of the calendar quarter. The Sub-Adviser shall permit all books and records with respect to the Portfolio to be inspected and audited by the Manager and the Administrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested to the Directors of the Fund pursuant to its determinations either directly Section 15(c) of the 1940 Act.
c. The Sub-Adviser shall provide to the Manager a copy of the Sub-Adviser’s Form ADV as filed with the issuer Securities and Exchange Commission and as amended from time to time and a list of the persons whom the Sub-Adviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio.
d. The Sub-Adviser will consult with and assist the Portfolio’s pricing agent regarding the valuation of securities that are not registered for public sale, not traded on any securities markets, or with any broker and/or dealer or other person who deals in otherwise may be deemed illiquid for purposes of the securities in 1940 Act and for which market quotations are not readily available.
e. Unless the Fund is trading. With respect Manager gives the Sub-Adviser written instructions to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealersthe contrary, the Sub-Adviser shall use its good faith judgment in a manner which it reasonably believes best judgment to obtain serves the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients Portfolio’s shareholders to vote or abstain from voting all proxies solicited by or with respect to the issuers of securities in which assets of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person Portfolio are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. invested.
f. The Adviser Manager shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons entities with which the Sub-Adviser is restricted from engaging in transactions on behalf of the Adviser.
(c) Portfolio. The Sub-Adviser shall be responsible for complying with this restricted list and any changes thereto 10 business days after its receipt.
g. The Manager acknowledges that the Sub-Adviser is not the compliance agent for the Portfolio and does not have access to all of the Trust may rely on Rules 17a-7Portfolio’s books and records necessary to perform certain compliance testing. However, 17a-10the Sub-Adviser shall perform compliance testing with respect to the Portfolio based upon information in its possession and upon written instructions, 10f-3 if any, received from the Manager or the Administrator and 17e-1 shall not be held in breach of this Agreement so long as it performs in accordance with such information and instructions.
h. The Sub-Adviser shall be responsible for commercially reasonable expenses relating to the printing and mailing of any prospectus supplement required by the actions taken by the Sub-Adviser, including but not limited to, portfolio manager changes, disclosure changes requested by the Sub-Adviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the prospectus, where such disclosures are required under applicable law to be distributed to existing annuity contract holders and life policy holders that are invested in the 1940 ActPortfolio. The Manager agrees to provide a detailed invoice of such expenses not later than six months after the expenses are incurred, and the Sub-Adviser hereby agrees that it shall pay the amounts of such expenses with 60 days of receipt of such invoice from the Manager.
i. In accordance with Rule 17a-10 under the 1940 Act and any other applicable law, the Sub-Adviser shall not consult with any other Sub-Adviser to the Portfolio or any Sub-Adviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The j. With respect to those activities for which it performs for or on behalf of the Portfolio, the Sub-Adviser represents, warrants and agrees that the Sub-Adviser has adopted and implemented, and throughout the term of this Agreement will maintain in effect and implement, policies and procedures reasonably designed to prevent, detect and correct violations by the Sub-Adviser, and its supervisory persons, and, to the extent the activities of the Sub-Adviser could affect the Fund, by the Fund, of “federal securities laws” as defined in Rule 38a-1 under the 1940 Act), and that the Sub-Adviser has provided the Adviser Fund with a true and complete copy copies of its compliance such policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Actor summaries thereof) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed related information requested by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser agrees to cooperate with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed periodic reviews by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or Fund’s compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period personnel of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect policies and procedures, their operation and implementation and other compliance matters and to provide to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation Fund from time to time such additional information and filing certifications in respect of Form 13F on behalf policies and procedures of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsAdviser, except as compliance personnel may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon reasonably request. The Sub-Adviser further agrees to preserve for promptly notify the periods prescribed in Rule 31a-2 under Manager of any compliance violations detected by the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify that affect the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this AgreementPortfolio.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Brighthouse Funds Trust II), Sub Advisory Agreement (Brighthouse Funds Trust II), Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity accordance with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, make reasonable commercial efforts , upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the PoliciesPolicies and Subadvisor shall not be liable for any losses resulting from such transactions.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing The Subadviser shall furnish the best overall terms available for any transaction, Manager (which may also provide it to the Sub-Adviser Fund’s Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall consider all factors it deems relevant, including provide to the breadth Manager a copy of the market in the security, the price Subadviser’s Form ADV Part II and as materially amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser, to the extent one or more exist, to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
e. Unless the Manager gives the Subadviser written instructions to the contrary, to the extent materials have been received by the Subadviser in a timely fashion from the Portfolio’s custodian, the Subadviser shall; (di) The Sub-Adviser has provided vote proxies relating to the Adviser Portfolio’s investment securities in accordance with a true and complete copy of its compliance the Fund’s proxy voting policies and procedures for compliance which defer to the proxy voting policies and procedures adopted by the Subadviser in conformance with “federal securities laws” (as such term is defined Rule 206(4)-6 under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Investment Advisers Act of 1940 (a summary of which is described in the “Sub-Adviser Compliance Policies”Subadviser’s Form ADV Part II, as amended from time to time). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (; and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
provide corporate action instructions (iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iiiwhich shall not include class actions).
f. As the delegate of the Directors of the Fund, the Subadviser shall be responsible for consulting with the Manager from time to time (enot daily fair valuation) when requested to provide such information on a specific security as Subadviser may have that could be supportive to the Manager in determining a reasonable and good faith fair valuations for any securities in the Portfolio for which current market quotations are not readily available or reliable.
g. The SubSubadviser shall be responsible for expenses relating to the printing and mailing of prospectus supplemental material, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the prospectus. Application of this provision will not apply where the above-Adviser may, on described changes can be implemented through annual updates or revisions otherwise required of the Manager but not prompted solely as a result of actions taken by the Subadviser.
h. On occasions when it the Subadviser deems the purchase or sale of a security to be in the best interests interest of the Fund Portfolio as well as other fiduciary or agency accounts managed by clients of the Sub-AdviserSubadviser, aggregate, the Subadviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold or purchased in order to attempt to obtain the best overall terms available a more favorable price or lower brokerage commissions and execution with respect to common and preferred stocks and the best net price and execution with respect to other securitiesefficient execution. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser Subadviser in the manner it considers to be the most fair equitable and equitable over time consistent with its fiduciary obligations to the Fund Portfolio and to its other accountsclients.
(f) i. The Sub-AdviserSubadviser, as part of its duties hereunder, is not responsible for determining whether or not the Portfolio is a suitable and appropriate investment for the clients who invest in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsPortfolio.
(g) j. The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance mattersSubadviser, as may reasonably be requested by it from time to timepart of its duties hereunder, including without limitation shall make any and all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) foreign exchange transactions relating to the TrustPortfolio’s securities transactions by and through the Fund’s custodian.
k. The Subadviser may rely on specific information, the Fund instructions or the Adviser brought by any governmental requests given or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified made to Subadviser by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities Manager with respect to the Fund.
(k) The Sub-Adviser shall be responsible for , the preparation Portfolio and filing of Form 13F on behalf the management of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsPortfolio’s assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required which are believed to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained in good faith by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required Subadviser to be maintained under Rule 31a-1 under the 1940 Actreliable.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Metropolitan Series Fund Inc), Sub Advisory Agreement (Metropolitan Series Fund Inc), Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager, manage the investment and reinvestment of such portion of the assets of the Fund, subject Company as the Manager may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Designated Assets”), and have the authority on behalf of the Company to vote and shall vote all proxies and exercise all other rights of the Company as a security holder of companies in which the Company from time to time invests. The Sub-Adviser shall manage the Sub-Advised Designated Assets in conformity with (i1) the Company’s Memorandum and Articles of Association, (2) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, (3) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) Directors of the Company that have been furnished in writing to the Sub-Adviser, all as from time to time in effect, and with all laws, rules and regulations applicable to the Fund (ii) collectively, the written instructions “Applicable Laws”), including but not limited to the provisions of the Internal Revenue Code, as amended (the “Code”), applicable to “regulated investment companies” (as defined in Section 851 of the Code), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements all applicable provisions of the Investment Company Act of 1940 1940, as amended (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreementrules and regulations thereunder, all as may be such that the Fund is in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policiessuch Applicable Laws. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds bonds, derivative contracts and other securities and investment instruments that have been approved by the Adviser on behalf of the FundCompany, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets assets of the Company may be invested in such proportions of stocks, bonds, derivative contracts, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) b. The Sub-Adviser shall place orders pursuant to its determinations either directly with not be responsible for the issuer investment or with reinvestment of any broker and/or dealer or assets other person who deals in than the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriterDesignated Assets, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) investment objectives, policies and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests restrictions of the Fund as well as they apply to assets other fiduciary or agency accounts managed by than the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accountsDesignated Assets.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) c. The Sub-Adviser shall furnish the Adviser Manager monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine Company in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Company and discuss the management of themit. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent permit all books and records maintained with respect to the Company to be inspected and audited by the Sub-Adviser relating directly to Manager and the FundCompany at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser Manager and the Company with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it the Manager or the Company from time to time, including without limitation all material requested by or required to be delivered to the Boardtrustees of the Trust.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. d. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within Manager a reasonable period copy of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities Form ADV as filed with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation Securities and filing of Form 13F on behalf Exchange Commission and a list of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by persons whom the Sub-Adviser on behalf wishes to have authorized to give written and/or oral instructions to custodians of assets of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActCompany.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Natixis Funds Trust II), Sub Advisory Agreement (Natixis Funds Trust II), Sub Advisory Agreement (Natixis Funds Trust II)
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing The Subadviser shall furnish the best overall terms available for any transaction, Manager (which may also provide it to the Sub-Adviser Fund’s Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall consider all factors it deems relevant, including provide to the breadth Manager a copy of the market in Subadviser’s Form ADV as filed with the security, the price SEC and as amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided e. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-AdviserPortfolio’s chief compliance officer (“Sub-Adviser CCO”) shall provide shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which assets of the Sub-Advised Assets may be Portfolio are invested, and the Adviser shall retain such responsibility.
(j) The Sub-f. As the delegate of the Directors of the Fund, the Subadviser shall provide Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating similar to the Trustinformation attached in Exhibit A hereto providing the basis for reasonable and good faith fair valuations for any securities in the Portfolio for which the Subadviser, the Fund in carrying out fair valuation analysis for its proprietary mutual funds, deems current market quotations are either not readily available or the Adviser brought by any governmental or regulatory authoritiesnot reliable. The Sub-Adviser shall Subadviser will also provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) fair valuation information in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect response to the Fundreasonable inquiry of the Manager or Manager’s delegate.
(k) g. The Sub-Adviser Subadviser shall be responsible for expenses relating to the preparation printing and filing mailing of Form 13F on behalf any prospectus supplement, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets. The Sub-Adviser shall not described changes can be responsible for the preparation implemented through annual updates or filing of any other reports revisions otherwise required on behalf of the Sub-Advised Assets, except Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Metropolitan Series Fund Inc), Sub Advisory Agreement (Metropolitan Series Fund Inc), Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program (iiand based upon the information regarding the Portfolio in its possession), perform quarterly diversification testing under Section 817 (h) upon notice of the Code with respect to the Sub-AdviserPortfolio. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Adviser Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. The Subadviser shall furnish the Manager (which may also provide it to the Fund’s Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall provide to the Manager a copy of the Subadviser’s Form ADV as filed with the SEC and as amended from time to time and a list of the persons whom the Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio. The Subadviser represents that it will notify the Manager of any change in the membership of the Subadviser within a reasonable time after any such change; delivery of the Subadviser’s Disclosure Statement consisting of Part II of the Subadviser’s Form ADV shall be deemed to satisfy such notice requirement.
d. In assessing accordance with Rule 206(4)-7 under the best overall terms available for any transactionAdvisers Act, the Sub-Adviser shall consider all factors it deems relevant, including the breadth Subadviser has adopted and implemented written policies and procedures reasonably designed to prevent violation of the market in Advisers Act and its Rules by the securitySubadviser and its supervised persons. Further, the price Subadviser reviews, at least annually, its written policies and procedures and the effectiveness of their implementation.
e. The Subadviser shall:
i) Comply with the Manager’s written compliance policies and procedures pursuant to Rule 38a-1;
ii) Provide copies of their annual compliance review report (or a summary of the security, process and findings) and copies of any third-party compliance audits;
iii) Notify the financial condition and execution capability Manager promptly of any contact from the broker SEC or dealer, other regulators or Self Regulatory Organization (“SRO”) with respect to the Portfolio and the reasonableness services provided pursuant to this Agreement (such as an examination, inquiry, investigation, institution of a proceeding, etc.); and
iv) Notify the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage Manager promptly of any material compliance matters (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients Rule 38a-1 under the circumstances. With respect to securities other than common ▇▇▇▇ ▇▇▇) and preferred stocks, actions taken in placing orders response.
f. In accordance with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided g. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-AdviserPortfolio’s chief compliance officer (“Sub-Adviser CCO”) shall provide shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of securities in which assets of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under Portfolio are invested.
h. Upon the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 request of the 1940 Act as well as Manager or the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser mayPortfolio’s pricing agent, on occasions when it deems the purchase or sale of a security to be Subadviser shall provide reasonable and good faith fair valuations for any securities in the best interests Portfolio for which the Portfolio’s pricing agent has determined current market quotations are not readily available or reliable. In connection with the provision of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulationssuch securities valuations, the securities to be sold or purchased in order to obtain Subadviser shall further provide information concerning the best overall terms available and execution with respect to common and preferred stocks and basis upon which the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be Subadviser’s valuation determination was made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed reasonably requested by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed uponManager, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser all such information shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly be provided in a format reasonably acceptable to the FundManager. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, Except as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviserset forth herein, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser Subadviser shall not be responsible for determining valuations for the preparation or securities and/or other assets of the Portfolio.
i. The Subadviser shall be responsible for expenses relating to the preparation, filing and mailing of any prospectus supplement or other reports required on behalf regulatory filings or mailings, exclusive of the Sub-Advised Assetsannual updates, except required as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Brighthouse Funds Trust II), Sub Advisory Agreement (Metropolitan Series Fund), Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdviser and in cooperation with any administrator appointed by the Adviser (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Fund in conformity with (i1) the investment objective, policies and restrictions of the Fund set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended from time to time(2) any changes in, or any additional additional, policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Adviser or by the TrustFund’s Board of Trustees (“Board”) trustees that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code, as amended (the “Code”), applicable to “regulated investment companies” (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the “Policies”), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 1940, as amended (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, rules and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policiesregulations thereunder. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets Fund as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) b. The Sub-Adviser shall furnish the Adviser and the Administrator monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine Fund in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Fund and discuss the management of themthe Fund with representatives or agents of the Adviser, the Administrator or the Fund at their reasonable request. The Sub-Adviser shall promptly respond permit all books and records with respect to requests the Fund to be inspected and audited by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the FundAdministrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser Adviser, the Administrator or the Fund with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it the Adviser, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by or required the trustees of the Fund pursuant to be delivered to Section 15(c) of the Board1940 Act.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. c. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within Adviser a reasonable period copy of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities Form ADV as filed with respect the Securities and Exchange Commission and as amended from time to time and a list of the persons whom the Sub-Adviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) d. The Sub-Adviser shall maintain separate detailed records and be bound by a Code of all matters pertaining to Ethics satisfying the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions requirements of Rule 31a-1 and Rule 31a-2 promulgated 17j-1 under the 1940 Act and that are prepared or maintained has been approved by the Sub-Adviser on behalf of the Trust are the property of the Trust Fund, and will be surrendered promptly shall provide to the Trust upon request. The Sub-Adviser further agrees Fund a current copy of such Code of Ethics, as amended from time to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Acttime.
(m) e. The Sub-Adviser shall promptly notify have no responsibility for filing claims on behalf of the Adviser Fund with respect to any class action, bankruptcy proceeding or any other action or proceeding in which the Fund may be entitled to participate as a result of any financial condition that is likely to impair the its security holdings. The Sub-Adviser’s ability responsibility with respect to fulfill its commitments under this Agreementsuch matters shall be, at the expense of the Adviser, limited to cooperating with the Adviser and the Fund in making such filings and to using commercially reasonable efforts in sharing applicable information regarding such matters with the Adviser and the Fund.
Appears in 3 contracts
Sources: Sub Advisory Agreement (Primark Meketa Private Equity Investments Fund), Sub Advisory Agreement (Primark Meketa Private Equity Investments Fund), Sub Advisory Agreement (Primark Private Equity Investments Fund)
Sub-Advisory Services. (a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser by the Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Adviser or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including which may include the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(cd) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser with a true and complete copy summary of its compliance policies and procedures which the Sub-Adviser hereby represents and warrants to the Adviser that such compliance policies and procedures are designed for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser will make available to the Adviser a true and complete set of the Sub-Adviser Compliance Policies for on-site review upon reasonable request. The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) or his or her delegates shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy summary of the findings of the Sub-Adviser CCO’s report with respect to the annual review of review, relating to the Sub-Adviser Compliance Policies portfolio management services to the Fund as described in this Agreement, pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(hi) The Sub-Adviser shall furnish the Adviser and the administrators of the Trust (together, the “Administrators”) monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Adviser, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) . Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility. If received in a timely manner from the Custodian, the Sub-Adviser, or its third party designee acting on its behalf, is authorized to deal with reorganizations, exchange offers and other corporate actions with respect to such investment instruments unless the Client otherwise specifically directs in writing
(j) Unless the Sub-Adviser otherwise agrees in writing, the Sub-Adviser will not advise or take any action on behalf of the Fund in any contemplated or actual legal proceedings, including but not limited to bankruptcies, tax reclaims or class actions (including the filing of proofs of claim), and the Sub-Adviser will not be responsible for determining the Fund’s eligibility to participate in any such proceeding with respect to any securities or other instruments held or formerly held in the Sub-Advised Asset, or for taking any action in connection with such proceeding, and the Adviser expressly reserves this authority for itself. The Sub-Adviser will provide prompt notice to the Adviser of any contemplated or actual legal proceedings with respect to any securities or other instruments held or formerly held in the Sub-Advised Assets.
(jk) The Sub-Adviser shall cooperate promptly and fully fully, to the extent permitted by applicable laws, rules and regulations, with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser Adviser, as hereby authorized by the Adviser, shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues that are identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise written correspondence to the Sub-Adviser and that relate to or that may affect the services provided by the Sub-Adviser’s responsibilities Adviser to the Fund pursuant to this Agreement. The Sub-Adviser shall provide such notification within a reasonable period after receiving the correspondence. The Sub-Adviser shall provide additional information with respect to such deficiencies as is reasonably requested by the FundAdviser or the Trust CCO or his or her delegate.
(k1) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 2 contracts
Sources: Sub Advisory Agreement, Sub Advisory Agreement (Northern Funds)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager, manage the investment and reinvestment of such portion the assets of each Fund as the Fund, subject Manager or its designee may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (each a “Segment” and, collectively, the “Sub-Advised AssetsSegments”). The Sub-Adviser shall manage have the authority on behalf of each Fund to vote and shall vote all proxies and exercise all other rights of the Funds as a security holder of companies in which the Segments from time to time invest. The Sub-Advised Assets Adviser shall manage each Segment in conformity with (i1) the investment objective, policies and restrictions of the applicable Segment of the applicable Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) trustees that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code as amended (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the “Policies”), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 1940, as amended (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies ) and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to timerules and regulations thereunder. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets each Segment as though the Sub-Advised Assets Segment constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the FundFunds, other than the Sub-Advised AssetsSegments, with the Policies, or for the compliance of the Funds, taken as a whole, with the Policies. For clarification, the Sub-Adviser is not responsible for the requirements of the Code or the 1940 Act that Natixis Advisors believes should be monitored for at the Fund level (for example, concentration, diversification and liquidity limits). Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundFunds, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets each Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets a Segment as the Adviser Manager shall determine are necessary in order for the applicable Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) b. The Sub-Adviser shall furnish the Adviser Manager monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine Series in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Series and discuss the management of themit. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent permit all books and records maintained with respect to the Series to be inspected and audited by the Sub-Adviser relating directly to the FundManager at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser Manager with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it the Manager from time to time, including without limitation all material requested by or required to be delivered to the BoardTrustees of the Trust.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. c. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within Manager a reasonable period copy of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities Form ADV as filed with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation Securities and filing of Form 13F on behalf Exchange Commission and a list of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by persons whom the Sub-Adviser on behalf wishes to have authorized to give written and/or oral instructions to custodians of assets of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSeries.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 2 contracts
Sources: Sub Advisory Agreement (Natixis ETF Trust II), Sub Advisory Agreement (Natixis ETF Trust II)
Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and the Trustees, and in cooperation with any custodian and administrator appointed by the Manager performing the duties of a custodian (the "Custodian"), and administrator (the "Administrator") manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Fund in conformity with (with:
i) the The investment objective, policies and restrictions of the Fund as set forth in the Trust’s prospectus and statement of additional information relating to the Fund's then-current registration statement, as they may be amended filed with the SEC from time to time; and
ii) Any procedures, any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, Manager or the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been and furnished in writing to the Sub-Adviser; and
iii) The provisions of Subchapter M of the Internal Revenue Code of 1986, (ii) the written instructions and directions received from the Adviser and the Trust rules and regulations thereunder, as delivered; and amended from time to time (iiithe "Code"), and
iv) the requirements Other applicable provisions of the Investment Company Act of 1940 (the “1940 Act”)Code, including, without limitation, the Investment Advisers diversification requirements under Section 817(h) of the Code; and
v) The provisions of the 1940 Act of 1940 (“Advisers Act”), and all other applicable federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policiesregulations (collectively, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies"Investment Guidelines"). Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; , and the majority or the whole of the Sub-Advised Assets Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall shall, in its best judgment, determine. Notwithstanding the foregoing any provisions of this Section 2(a)) to the contrary, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Fund as the Adviser Manager shall determine are necessary in order for the Fund to comply with the Policiesabove enumerated requirements. The Adviser shall furnish the Manager, the Custodian, and (ii) upon notice the Administrator, as appropriate, with monthly, quarterly and annual reports concerning transactions, performance, and management of the Fund in such form as the Manager may reasonably request to assure comparability with other information provided to the Sub-AdviserBoard of Trustees, and agrees to review the Adviser may effect in-kind redemptions with shareholders Fund and discuss the management of the Fund with securities included within representatives or agents of the Sub-Advised AssetsManager, or the Administrator, at their reasonable request. The Adviser shall permit access to all books and records with respect to the Fund during normal business hours, on reasonable notice. The Adviser shall also provide the Manager, or the Administrator, with such other information and reports as the Manager or the Administrator may reasonably request from time to time. The Adviser shall make one or more portfolio manager(s) or approved investment representatives available for presentations to the Trustees at a meeting of the Board of Trustees at least annually, as well as at other meetings as may be reasonably requested.
(b) The Sub-Adviser shall place orders pursuant make available to the Manager, promptly upon request, any of the Fund's investment records and ledgers as are necessary to assist the Manager to comply with the requirements of the 1940 Act and the Advisers Act, as well as other applicable laws and regulations, and will furnish to regulatory authorities having the requisite authority any information or reports relating to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals services under this Agreement that may be requested in the securities in which order to ascertain whether the Fund is trading. With respect to common being managed in a manner consistent with applicable laws and preferred stocksregulations.
(c) The Adviser shall, in executing portfolio transactions and selecting brokers or dealers, connection with the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders of securities for the Fund, arrange for the transmission to the Custodian on a daily basis, such confirmations, trade tickets, and other documents and information, including, but not limited to, Cusip, Sedol, or other numbers that identify securities to brokers be purchased or dealers if the Sub-Adviser believes that the quality sold on behalf of the transaction and Fund, as may be reasonably necessary to enable the commission are comparable Custodian to what they would be perform its responsibilities with other qualified firms. In no instancerespect to the Fund, howeverand, will the Assets with respect to portfolio securities to be purchased from or sold through the Depository Trust Company, and will arrange for the automatic transmission of the confirmation of such trades to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission Custodian.
(“SEC”d) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-The Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition prepare and execution capability of the broker file any schedule or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Subnotification required by Regulation 13D-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of G under the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transactionamended, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser certification with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with regard to any other securities eligible for passive foreign investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii)credits.
(e) The Sub-Adviser may, on occasions when it deems shall review all proxy solicitation materials and be responsible for voting and handling all proxies in relation to the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed securities held by the Sub-Adviser, aggregate, to Fund. The Adviser shall instruct the extent permitted by applicable laws and regulationsCustodian, the securities to be sold or purchased in order to obtain the best overall terms available Administrator, and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time parties providing services to the Fund and to its other accountspromptly forward misdirected proxy materials to the Adviser.
(f) The Sub-Manager shall perform quarterly and annual tax compliance tests to ensure that the Fund is in compliance with Subchapter M of the Code and Section 817(h) of the Code. In connection with such compliance tests, the Manager shall prepare and provide reports to the Adviser within ten (10) business days of a calendar quarter end relating to the diversification of the Fund under Subchapter M and Section 817(h) of the Code. The Adviser, and in consultation with the Manager, shall review such reports for purposes of determining compliance with such diversification requirements. If it is determined that the Fund is not in compliance with the requirements noted above, the Adviser, in connection consultation with its rights and duties with respect the Manager, will take prompt action to bring the Fund and back into compliance within the Trust shall use the care, skill, prudence and diligence time permitted under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsCode.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 2 contracts
Sources: Sub Advisory Agreement (Lsa Variable Series Trust), Sub Advisory Agreement (Lsa Variable Series Trust)
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing .
c. The Subadviser shall provide to the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth Manager a copy of the market in Subadviser’s Form ADV as filed with the security, the price SEC and as amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided e. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-AdviserPortfolio’s chief compliance officer (“Sub-Adviser CCO”) shall provide shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which assets of the Sub-Advised Assets may be Portfolio are invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser f. As the delegate of the Directors of the Fund, the Subadviser shall cooperate promptly provide Manager with information providing the basis for reasonable and fully with good faith fair valuations for any securities in the Adviser and/or Portfolio for which the Trust Subadviser deems current market quotations are either not readily available or not reliable. Subadviser will also provide fair valuation information in responding to any regulatory or compliance examinations or inspections (including any information requests) relating response to the Trust, reasonable inquiry of the Fund Manager or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-AdviserManager’s responsibilities with respect to the Funddelegate.
(k) g. The Sub-Adviser Subadviser shall be responsible for expenses relating to the preparation printing and filing mailing of Form 13F on behalf any prospectus supplement, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets. The Sub-Adviser shall not described changes can be responsible for the preparation implemented through annual updates or filing of any other reports revisions otherwise required on behalf of the Sub-Advised Assets, except Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 2 contracts
Sources: Sub Advisory Agreement (Brighthouse Funds Trust II), Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and of any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of such portion of the assets of the Fund, subject Series as the Manager may from time to time allocate to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Adviser for management (such portion, the "Segment") and the Sub-Adviser shall have the authority on behalf of the Series to vote all proxies and exercise all other rights of the Series as a security holder of companies in which the Segment from time to time invests. The Sub-Adviser shall manage the Sub-Advised Assets Segment in conformity with (i1) the investment objective, policies and restrictions of the Fund Series set forth in the Trust’s 's prospectus and statement of additional information relating to the FundSeries, as they may be amended from time to time, (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) 's trustees that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the "Policies"), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies ") and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to timerules and regulations thereunder. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets Segment as though the Sub-Advised Assets Segment constituted the entire FundSeries, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the FundSeries, other than the Sub-Advised AssetsSegment, with the Policies, or for the compliance of the Series, taken as a whole, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundSeries, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Segment may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), 1.a; however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Segment as the Adviser Manager shall determine are necessary in order for the Fund Series to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) b. The Sub-Adviser shall furnish the Adviser Manager and the Administrator monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine Segment in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Segment and discuss the management of themit. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent permit all books and records maintained with respect to the Segment to be inspected and audited by the Sub-Adviser relating directly to Manager and the FundAdministrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser Manager with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it the Manager from time to time, including without limitation all material requested by or required to be delivered to the Boardtrustees of the Trust.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. c. The Sub-Adviser shall provide to the Trust CCO or his or her delegate Manager a copy of the Sub-Adviser's Form ADV as filed with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf a list of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by persons whom the Sub-Adviser on behalf wishes to have authorized to give written and/or oral instructions to custodians of assets of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSeries.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 2 contracts
Sources: Sub Advisory Agreement (Nvest Funds Trust I), Sub Advisory Agreement (Nvest Funds Trust I)
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity accordance with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, make reasonable commercial efforts , upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the PoliciesPolicies and Subadvisor shall not be liable for any losses resulting from such transactions.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing The Subadviser shall furnish the best overall terms available for any transaction, Manager (which may also provide it to the Sub-Adviser Fund’s Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall consider all factors it deems relevant, including provide to the breadth Manager a copy of the market in the security, the price Subadviser’s Form ADV Part II and as materially amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser, to the extent one or more exist, to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
e. Unless the Manager gives the Subadviser written instructions to the contrary, to the extent materials have been received by the Subadviser in a timely fashion from the Portfolio's custodian, the Subadviser shall; (di) The Sub-Adviser has provided vote proxies relating to the Adviser Portfolio’s investment securities in accordance with a true and complete copy of its compliance the Fund’s proxy voting policies and procedures for compliance which defer to the proxy voting policies and procedures adopted by the Subadviser in conformance with “federal securities laws” (as such term is defined Rule 206(4)-6 under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Investment Advisers Act of 1940 (a summary of which is described in the “Sub-Adviser Compliance Policies”Subadviser's Form ADV Part II, as amended from time to time). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (; and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
provide corporate action instructions (iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iiiwhich shall not include class actions).
f. As the delegate of the Directors of the Fund, the Subadviser shall be responsible for consulting with the Manager from time to time (enot daily fair valuation) when requested to provide such information on a specific security as Subadviser may have that could be supportive to the Manager in determining a reasonable and good faith fair valuations for any securities in the Portfolio for which current market quotations are not readily available or reliable.
g. The SubSubadviser shall be responsible for expenses relating to the printing and mailing of prospectus supplemental material, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the prospectus. Application of this provision will not apply where the above-Adviser may, on described changes can be implemented through annual updates or revisions otherwise required of the Manager but not prompted solely as a result of actions taken by the Subadviser.
h. On occasions when it the Subadviser deems the purchase or sale of a security to be in the best interests interest of the Fund Portfolio as well as other fiduciary or agency accounts managed by clients of the Sub-AdviserSubadviser, aggregate, the Subadviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold or purchased in order to attempt to obtain the best overall terms available a more favorable price or lower brokerage commissions and execution with respect to common and preferred stocks and the best net price and execution with respect to other securitiesefficient execution. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser Subadviser in the manner it considers to be the most fair equitable and equitable over time consistent with its fiduciary obligations to the Fund Portfolio and to its other accountsclients.
(f) i. The Sub-AdviserSubadviser, as part of its duties hereunder, is not responsible for determining whether or not the Portfolio is a suitable and appropriate investment for the clients who invest in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsPortfolio.
(g) j. The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance mattersSubadviser, as may reasonably be requested by it from time to timepart of its duties hereunder, including without limitation shall make any and all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) foreign exchange transactions relating to the TrustPortfolio’s securities transactions by and through the Fund’s custodian.
k. The Subadviser may rely on specific information, the Fund instructions or the Adviser brought by any governmental requests given or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified made to Subadviser by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities Manager with respect to the Fund.
(k) The Sub-Adviser shall be responsible for , the preparation Portfolio and filing of Form 13F on behalf the management of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsPortfolio's assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required which are believed to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained in good faith by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required Subadviser to be maintained under Rule 31a-1 under the 1940 Actreliable.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and of any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of such portion of the assets of the Fund, subject Series as the Manager may from time to time allocate to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”Adviser for management (such portion, the "Segment"), and the Sub-Adviser shall have the authority on behalf of the Series to vote all proxies and exercise all other rights of the Series as a security holder of companies in which the Segment from time to time invests. The Sub-Adviser shall manage the Sub-Advised Assets Segment in conformity with (i1) the investment objective, policies and restrictions of the Fund Series set forth in the Trust’s 's prospectus and statement of additional information relating to the FundSeries, as they may be amended from time to time, (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) 's trustees that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the "Policies"), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 1940, as amended (the “"1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies ") and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to timerules and regulations thereunder. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets Segment as though the Sub-Advised Assets Segment constituted the entire FundSeries, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the FundSeries, other than the Sub-Advised AssetsSegment, with the Policies, or for the compliance of the Series, taken as a whole, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundSeries, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Segment may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a., however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Segment as the Adviser Manager shall determine are necessary in order for the Fund Series to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) b. The Sub-Adviser shall furnish the Adviser Manager and the Administrator monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine Segment in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Segment and discuss the management of themit. The Sub-Sub- Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent permit all books and records maintained with respect to the Segment to be inspected and audited by the Sub-Adviser relating directly to Manager and the FundAdministrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser Manager with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it the Manager from time to time, including without limitation all material requested by or required to be delivered to the Boardtrustees of the Trust.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. c. The Sub-Adviser shall provide to the Trust CCO or his or her delegate Manager a copy of the Sub- Adviser's Form ADV as filed with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf a list of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by persons whom the Sub-Adviser on behalf wishes to have authorized to give written and/or oral instructions to custodians of assets of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSeries.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “"Sub-Advised Assets”"). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s 's prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s 's Chief Compliance Officer, or by the Trust’s 's Board of Trustees (“"Board”") that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “"1940 Act”"), the Investment Advisers Act of 1940 (“"Advisers Act”"), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s 's duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “"Policies.” " For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s 's opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s 's Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “"affiliated person” " (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s 's assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “"federal securities laws” " (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “"Sub-Adviser Compliance Policies”"). The Sub-Adviser’s 's chief compliance officer (“"Sub-Adviser CCO”") shall provide to the Trust’s 's Chief Compliance Officer (“"Trust CCO”") or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the Trust’s Fund's prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the "Prospectus"), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) Fund's Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code) and directions received from "segregated asset accounts" (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the "Policies"), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”") the rules and regulations thereunder and the interpretive opinions thereof of the staff of the Securities and Exchange Commission ("SEC") ("SEC Positions"); provided, however, that the Investment Advisers Act Manager agrees to inform the Subadviser of 1940 any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Advisers Act”"Insurance Restrictions"), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program (iiand based upon the information regarding the Portfolio in its possession), perform quarterly diversification testing under Section 817 (h) upon notice of the Code with respect to the Sub-AdviserPortfolio. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Adviser Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. The Subadviser shall furnish the Manager (which may also provide it to the Fund's Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall provide to the Manager a copy of the Subadviser's Form ADV as filed with the SEC and as amended from time to time and a list of the persons whom the Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio. The Subadviser represents that it will notify the Manager of any change in the membership of the Subadviser within a reasonable time after any such change; delivery of the Subadviser's Disclosure Statement consisting of Part II of the Subadviser's Form ADV shall be deemed to satisfy such notice requirement.
d. In assessing accordance with Rule 206(4)-7 under the best overall terms available for any transactionAdvisers Act, the Sub-Adviser shall consider all factors it deems relevant, including the breadth Subadviser has adopted and implemented written policies and procedures reasonably designed to prevent violation of the market in Advisers Act and its Rules by the securitySubadviser and its supervised persons. Further, the price Subadviser reviews, at least annually, its written policies and procedures and the effectiveness of their implementation.
e. The Subadviser shall:
i) Comply with the Manager's written compliance policies and procedures pursuant to Rule 38a-1;
ii) Provide copies of their annual compliance review report (or a summary of the security, process and findings) and copies of any third-party compliance audits;
iii) Notify the financial condition and execution capability Manager promptly of any contact from the broker SEC or dealer, other regulators or Self Regulatory Organization ("SRO") with respect to the Portfolio and the reasonableness services provided pursuant to this Agreement (such as an examination, inquiry, investigation, institution of a proceeding, etc.); and
iv) Notify the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage Manager promptly of any material compliance matters (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients Rule 38a-1 under the circumstances. With respect to securities other than common 1940 Act) and preferred stocks, actions taken in placing orders response.
f. In accordance with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided g. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide Portfolio's shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of securities in which assets of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under Portfolio are invested.
h. Upon the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 request of the 1940 Act as well as Manager or the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser mayPortfolio's pricing agent, on occasions when it deems the purchase or sale of a security to be Subadviser shall provide reasonable and good faith fair valuations for any securities in the best interests Portfolio for which the Portfolio's pricing agent has determined current market quotations are not readily available or reliable. In connection with the provision of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulationssuch securities valuations, the securities to be sold or purchased in order to obtain Subadviser shall further provide information concerning the best overall terms available and execution with respect to common and preferred stocks and basis upon which the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be Subadviser's valuation determination was made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed reasonably requested by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed uponManager, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser all such information shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly be provided in a format reasonably acceptable to the FundManager. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, Except as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviserset forth herein, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser Subadviser shall not be responsible for determining valuations for the preparation or securities and/or other assets of the Portfolio.
i. The Subadviser shall be responsible for expenses relating to the preparation, filing and mailing of any prospectus supplement or other reports required on behalf regulatory filings or mailings, exclusive of the Sub-Advised Assetsannual updates, except required as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and the Trustees, and in cooperation with the custodian and administrator appointed by the Manager performing the duties of a custodian (the "Custodian"), and administrator (the "Administrator") manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Fund in conformity with (with:
i) the The investment objective, policies and restrictions of the Fund as provided for Adviser's prior review and comment not less than ten (10) business days in advance or as otherwise agreed to by the parties, and as set forth in the Trust’s prospectus and statement of additional information relating to the Fund's then-current registration statement, as they may be amended filed with the SEC from time to time; and
ii) Any procedures, any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, Manager or the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been and furnished in writing to the Sub-AdviserAdviser for its prior approval not less than ten (10) business days in advance, (iiwhich approval shall not be unreasonably withheld; and
iii) The provisions of Subchapter M of the written instructions and directions received from the Adviser Internal Revenue Code of 1986, and the Trust rules and regulations thereunder, as deliveredamended from time to time (the "Code"); and (iiiand
iv) the requirements Other applicable provisions of the Investment Company Act of 1940 (the “1940 Act”)Code, including, without limitation, the Investment Advisers diversification requirements under Section 817(h) of the Code; and
v) The provisions of the 1940 Act of 1940 (“Advisers Act”), and all other applicable federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policiesregulations (collectively, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies"Investment Guidelines"). Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; , and the majority or the whole of the Sub-Advised Assets Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall shall, in its best judgment, determine. Notwithstanding the foregoing any provisions of this Section 2(a)) to the contrary, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Fund as the Adviser Manager shall determine are necessary in order for the Fund to comply with the Policiesabove enumerated requirements. Adviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Fund or that the Fund will perform comparably with any standard or index, including other clients of Adviser, whether public or private. The Adviser shall furnish the Manager, the Custodian and the Administrator, as appropriate, with monthly, quarterly and annual reports concerning transactions, performance, and (ii) upon notice management of the Fund in such form as the Manager may reasonably request to assure comparability with other information provided to the Sub-AdviserBoard of Trustees, provided, however that Adviser shall not be responsible for Fund accounting and shall not be required to generate information derived from Fund accounting data, and agrees to review the Adviser may effect in-kind redemptions with shareholders Fund and discuss the management of the Fund with securities included within representatives or agents of the Sub-Advised AssetsManager, or the Administrator, at their reasonable request. The Adviser shall permit access to all books and records with respect to the Fund during normal business hours, on reasonable notice. The Adviser shall also provide the Manager, or the Administrator, with such other information and reports as the Manager or the Administrator may reasonably request from time to time. The Adviser shall use commercially reasonable efforts to make senior portfolio manager(s) or other appropriate Janus representatives available for presentations to the Trustees at a meeting of the Board of Trustees at least annually, as well as other meetings as may be reasonably requested.
(b) The Sub-Adviser shall place orders pursuant make available to its determinations either directly the Manager, promptly upon request, any of the Fund's investment records and ledgers as are necessary to assist the Manager to comply with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality requirements of the transaction 1940 Act and the commission are comparable to what they would be with other qualified firms. In no instanceAdvisers Act, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law laws and regulations, aggregate and will furnish to regulatory authorities having the requisite authority any information or reports relating to its services under this Agreement that may be requested in order for securities to be sold or purchased. In such event, ascertain whether the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, Fund is being managed in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund applicable laws and to such other clients under the circumstances. With respect to securities other than common and preferred stocksregulations.
(c) The Adviser shall, in placing orders connection with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities for the Fund, arrange for the transmission to the Custodian on a daily basis, such confirmations, trade tickets, and other documents and information, including, but not limited to, Cusip, Sedol, or other investment instruments for the Sub-Advised Assets may include brokers numbers that identify securities to be purchased or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) sold on behalf of the Sub-Adviser or Fund, as may be reasonably necessary to enable the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser Custodian to the Trust perform its responsibilities with respect to transactions in the Fund, and, with respect to portfolio securities to be purchased or sold through the Depository Trust Company, and will arrange for the Sub-Advised Assets or any other transactions in transmission of the Trust’s assets, other than for confirmation of such trades to the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 ActCustodian.
(d) The SubAdviser shall prepare and file any schedule or notification required by Regulation 13D-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 G under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy Securities and Exchange Act of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold1934, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired therebyamended. The Adviser acknowledges shall also use reasonable commercial efforts to notify the Manager of those portfolio investments held by the Fund which constitute "passive foreign investment companies" within the meaning of Section 1297 of the Internal Revenue Code of 1986, as amended (each a "PFIC"). Any investments so identified shall be reported to the Manager; provided, however that the Sub-Adviser performs investment advisory services for various other clients in addition to does not, and shall not be required to, warrant the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any accuracy or completeness of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fundsuch information. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets comply with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Manager (or its auditor) for information regarding particular Fund investments to assist the Adviser and the Trust CCO or their delegates for copies in a definitive determination of the pertinent books and records maintained by PFIC status of such investments, provided that such information is within the Sub-Adviser relating directly to the FundAdviser's control or is obtainable with reasonable effort. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or of filing of any other reports required on behalf of the Sub-Advised AssetsManager or the Fund by any governmental or regulatory agency, except as may be expressly agreed to in writing.
(le) The Sub-Adviser shall maintain separate detailed records of review all matters pertaining proxy solicitation materials and be responsible for voting and handling all proxies in relation to the Sub-Advised Assetssecurities held by the Fund. The Adviser shall instruct the Custodian, includingthe Administrator, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant parties providing services to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered Fund to promptly forward misdirected proxy materials to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActAdviser.
(mf) The Sub-Manager shall perform quarterly and annual tax compliance tests to ensure that the Fund is in compliance with Subchapter M of the Code and Section 817(h) of the Code. In connection with such compliance tests, the Manager shall prepare and provide reports to the Adviser within ten (10) business days of a calendar quarter end relating to the diversification of the Fund under Subchapter M and Section 817(h) of the Code. The Adviser shall promptly notify review such reports for purposes of determining compliance with such diversification requirements. If it is determined that the Fund is not in compliance with the requirements noted above, the Adviser, in consultation with the Manager, will take prompt action to bring the Fund back into compliance within the time permitted under the Code.
(g) Adviser shall have no responsibility to monitor the 90%-source test or perform other such testing or monitoring for which Adviser determines it has not been provided sufficient information. All such testing or monitoring shall be the responsibility of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this AgreementManager.
Appears in 1 contract
Sub-Advisory Services. In its capacity as investment sub-adviser to the Fund, the Sub-adviser shall have the following responsibilities:
(a) The Sub-Adviser shall, subject Subject to the supervision and oversight of the AdviserTrust's Board of Trustees (the "Board") and TAM, manage the investment and reinvestment of Sub-adviser shall regularly provide the assets Fund with respect to such portion of the Fund, subject 's assets as shall be allocated to the Adviser’s direction with respect Sub-adviser by TAM from time to security selection time (the “Sub-Advised "Allocated Assets”)") with investment research, advice, management and supervision and shall furnish a continuous investment program for the Allocated Assets consistent with the Fund's investment objectives, policies and restrictions, as stated in the Fund's current Prospectus and Statement of Additional Information. The Sub-Adviser adviser shall, with respect to the Allocated Assets, determine from time to time what securities and other investments and instruments will be purchased, retained, sold or exchanged by the Fund and what portion of the Allocated Assets will be held in the various securities and other investments in which the Fund invests, and shall manage implement those decisions, all subject to the Subprovisions of the Trust's Declaration of Trust and By-Advised Assets in conformity with Laws (icollectively, the "Governing Documents"), the 1940 Act and the applicable rules and regulations promulgated thereunder by the Securities and Exchange Commission (the "SEC") and interpretive guidance issued thereunder by the SEC staff and any other applicable federal and state law, as well as the investment objectiveobjectives, policies and restrictions of the Fund set forth in the Trust’s prospectus referred to above, and statement of additional information relating to the Fund, as they may be amended from time to time, any additional other specific policies or guidelines, including without limitation compliance policies and procedures, established adopted by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing and disclosed to the Sub-Adviser, (ii) the written instructions and directions received from the Adviser and the Trust as delivered; and (iii) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”)adviser. The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) adviser shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, ensure that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to adequately diversified in accordance with the Trust upon requestrequirements of Section 817(h) of the Internal Revenue Code of 1986, as amended, and Treas. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActReg.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Investment Sub Advisory Agreement (Transamerica Series Trust)
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “"Sub-Advised Assets”"). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s 's prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s 's Chief Compliance Officer, or by the Trust’s 's Board of Trustees (“"Board”") that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “"1940 Act”"), the Investment Advisers Act of 1940 (“"Advisers Act”"), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s 's duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “"Policies.” " For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s 's opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s 's Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “"affiliated person” " (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s 's assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “"federal securities laws” " (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “"Sub-Adviser Compliance Policies”"). The Sub-Adviser’s 's chief compliance officer (“"Sub-Adviser CCO”") shall provide to the Trust’s 's Chief Compliance Officer (“" Trust CCO”") or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of the assets of the FundPortfolio. Subject to paragraph 1.g. below, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Sub-Adviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, inform the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) b. The Sub-Adviser shall place orders furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning transactions and performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Administrator or the Fund at their reasonable request. Subject to Section 1(g) of this Agreement, the Sub-Adviser shall as a part of complete portfolio compliance testing program, perform quarterly diversification testing under section 817(h) of the Code. The Sub-Adviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that the corrections were made within 30 days of the end of the calendar quarter. The Sub-Adviser shall permit all books and records with respect to the Portfolio to be inspected and audited by the Manager and the Administrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested to the Directors of the Fund pursuant to its determinations either directly Section 15(c) of the 1940 Act.
c. The Sub-Adviser shall provide to the Manager a copy of the Sub-Adviser's Form ADV as filed with the issuer Securities and Exchange Commission and as amended from time to time and a list of the persons whom the Sub-Adviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio.
d. The Sub-Adviser will consult with and assist the Portfolio’s pricing agent regarding the valuation of securities that are not registered for public sale, not traded on any securities markets, or with any broker and/or dealer or other person who deals in otherwise may be deemed illiquid for purposes of the securities in 1940 Act and for which market quotations are not readily available.
e. Unless the Fund is trading. With respect Manager gives the Sub-Adviser written instructions to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealersthe contrary, the Sub-Adviser shall use its good faith judgment in a manner which it reasonably believes best judgment to obtain serves the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients Portfolio’s shareholders to vote or abstain from voting all proxies solicited by or with respect to the issuers of securities in which assets of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person Portfolio are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. invested.
f. The Adviser Manager shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons entities with which the Sub-Adviser is restricted from engaging in transactions on behalf of the Adviser.
(c) Portfolio. The Sub-Adviser shall be responsible for complying with this restricted list and any changes thereto 10 business days after its receipt.
g. The Manager acknowledges that the Sub-Adviser is not the compliance agent for the Portfolio and does not have access to all of the Trust may rely on Rules 17a-7Portfolio’s books and records necessary to perform certain compliance testing. However, 17a-10the Sub-Adviser shall perform compliance testing with respect to the Portfolio based upon information in its possession and upon written instructions, 10f-3 if any, received from the Manager or the Administrator and 17e-1 shall not be held in breach of this Agreement so long as it performs in accordance with such information and instructions.
h. The Sub-Adviser shall be responsible for commercially reasonable expenses relating to the printing and mailing of any prospectus supplement required by the actions taken by the Sub-Adviser, including but not limited to, portfolio manager changes, disclosure changes requested by the Sub-Adviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the prospectus, where such disclosures are required under applicable law to be distributed to existing annuity contract holders and life policy holders that are invested in the 1940 ActPortfolio. The Manager agrees to provide a detailed invoice of such expenses not later than six months after the expenses are incurred, and the Sub-Adviser hereby agrees that it shall pay the amounts of such expenses with 60 days of receipt of such invoice from the Manager.
i. In accordance with Rule 17a-10 under the 1940 Act and any other applicable law, the Sub-Adviser shall not consult with any other Sub-Adviser to the Portfolio or any Sub-Adviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The j. With respect to those activities for which it performs for or on behalf of the Portfolio, the Sub-Adviser represents, warrants and agrees that the Sub-Adviser has adopted and implemented, and throughout the term of this Agreement will maintain in effect and implement, policies and procedures reasonably designed to prevent, detect and correct violations by the Sub-Adviser, and its supervisory persons, and, to the extent the activities of the Sub-Adviser could affect the Fund, by the Fund, of “federal securities laws” as defined in Rule 38a-1 under the 1940 Act), and that the Sub-Adviser has provided the Adviser Fund with a true and complete copy copies of its compliance such policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Actor summaries thereof) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed related information requested by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser agrees to cooperate with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed periodic reviews by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or Fund’s compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period personnel of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect policies and procedures, their operation and implementation and other compliance matters and to provide to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation Fund from time to time such additional information and filing certifications in respect of Form 13F on behalf policies and procedures of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsAdviser, except as compliance personnel may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon reasonably request. The Sub-Adviser further agrees to preserve for promptly notify the periods prescribed in Rule 31a-2 under Manager of any compliance violations detected by the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify that affect the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this AgreementPortfolio.
Appears in 1 contract
Sources: Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and of any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of such portion of the assets of the Fund, subject Series as the Manager may from time to time allocate to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Adviser for management (such portion, the "Segment") and the Sub-Advisor shall have the authority on behalf of the Series to vote all proxies and exercise all other rights of the Series as a security holder of companies in which the Segment from time to time invests. The Sub-Adviser shall manage the Sub-Advised Assets Segment in conformity with (i1) the investment objective, policies and restrictions of the Fund Series set forth in the Trust’s 's prospectus and statement of additional information relating to the FundSeries, as they may be amended from time to time, (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) 's trustees that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the "Policies"), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies ") and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to timerules and regulations thereunder. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets Segment as though the Sub-Advised Assets Segment constituted the entire FundSeries, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the FundSeries, other than the Sub-Advised AssetsSegment, with the Policies, or for the compliance of the Series, taken as a whole, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundSeries, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Segment may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), 1.a; however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Segment as the Adviser Manager shall determine are necessary in order for the Fund Series to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) b. The Sub-Adviser shall furnish the Adviser Manager and the Administrator monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine Segment in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Segment and discuss the management of themit. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent permit all books and records maintained with respect to the Segment to be inspected and audited by the Sub-Adviser relating directly to Manager and the FundAdministrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Adviser Manager with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it the Manager from time to time, including without limitation all material requested by or required to be delivered to the Boardtrustees of the Trust.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. c. The Sub-Adviser shall provide to the Trust CCO or his or her delegate Manager a copy of the Sub-Adviser's Form ADV as filed with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf a list of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by persons whom the Sub-Adviser on behalf wishes to have authorized to give written and/or oral instructions to custodians of assets of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSeries.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the Trust’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) b. The Sub-Adviser Subadviser shall place orders pursuant to its determinations either directly with furnish the issuer or with any broker Manager and the Administrator daily, weekly, monthly, quarterly and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing annual reports concerning portfolio transactions and selecting brokers the investment performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or dealersagents of the Manager, the Sub-Adviser shall use its best judgment to obtain Administrator or the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Trust at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the transaction and Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the commission are comparable to what they would be with other qualified firmsend of the calendar quarter. In no instance, however, will The Subadviser shall also provide the Assets be purchased from or sold to the Adviser, Sub-AdviserManager, the Trust’s principal underwriter, Administrator or any affiliated person of either the Trust, AdviserTrust with such other information and reports as may reasonably be requested by the Manager, the Sub-Adviser Administrator or the principal underwriterTrust from time to time, acting including without limitation all material as principal in the transaction, except to the extent permitted reasonably may be requested by the Securities and Exchange Commission (“SEC”Trustees of the Trust pursuant to Section 15(c) and of the 1940 Act. In assessing .
c. The Subadviser shall provide to the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth Manager a copy of the market in Subadviser’s Form ADV as filed with the security, the price SEC and as amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Trust or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided e. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-AdviserPortfolio’s chief compliance officer (“Sub-Adviser CCO”) shall provide shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which assets of the Sub-Advised Assets may be Portfolio are invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with f. As the Adviser and/or delegate of the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to Trustees of the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser Subadviser shall provide Manager with information providing the Trust CCO basis for reasonable and good faith fair valuations for any securities in the Portfolio for which the Subadviser deems current market quotations are either not readily available or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) not reliable. Subadviser will also provide fair valuation information in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect response to the Fundreasonable inquiry of the Manager or Manager’s delegate.
(k) g. The Sub-Adviser Subadviser shall be responsible for expenses relating to the preparation printing and filing mailing of Form 13F on behalf any prospectus supplement, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets. The Sub-Adviser shall not described changes can be responsible for the preparation implemented through annual updates or filing of any other reports revisions otherwise required on behalf of the Sub-Advised Assets, except Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Sub Advisory Agreement (Met Investors Series Trust)
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “"Sub-Advised Assets”"). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s 's prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s 's Chief Compliance Officer, or by the Trust’s 's Board of Trustees (“"Board”") that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “"1940 Act”"), the Investment Advisers Act of 1940 (“"Advisers Act”"), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s 's duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “"Policies.” " For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s 's opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s 's Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “"affiliated person” " (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior Advisers withou▇ ▇▇▇ ▇▇ior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s 's assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “that are reasonably designed to prevent violations of the "federal securities laws” " (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “"Sub-Adviser Compliance Policies”"). The Sub-Adviser’s 's chief compliance officer (“"Sub-Adviser CCO”") shall provide to the Trust’s 's Chief Compliance Officer (“"Trust CCO”") or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of the assets of the FundPortfolio. Subject to paragraph 1.g. below, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the Trust’s Fund's prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the "Prospectus"), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) Fund's Directors that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code) and directions received from "segregated asset accounts" (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the "Policies"), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”"), the Investment Advisers Act of 1940 (“Advisers Act”), rules and all other federal and state laws applicable to registered investment companies regulations thereunder and the Sub-Adviser’s duties under this Agreementinterpretive opinions thereof of the staff of the Securities and Exchange Commission ("SEC") ("SEC Positions"); provided, all as may be in effect from time however, that the Manager agrees to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, inform the Sub-Adviser shall be entitled of any and all applicable state insurance law restrictions that operate to treat limit or restrict the Sub-Advised Assets as though investments the Sub-Advised Assets constituted the entire FundPortfolio might otherwise make ("Insurance Restrictions"), and to inform the Sub-Adviser shall not be responsible in any way for the compliance promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) b. The Sub-Adviser shall place orders furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning transactions and performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Administrator or the Fund at their reasonable request. Subject to Section 1(g) of this Agreement, the Sub-Adviser shall as a part of complete portfolio compliance testing program, perform quarterly diversification testing under section 817(h) of the Code. The Sub-Adviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that the corrections were made within 30 days of the end of the calendar quarter. The Sub-Adviser shall permit all books and records with respect to the Portfolio to be inspected and audited by the Manager and the Administrator at all reasonable times during normal business hours, upon reasonable notice. The Sub-Adviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested to the Directors of the Fund pursuant to its determinations either directly Section 15(c) of the 1940 Act.
c. The Sub-Adviser shall provide to the Manager a copy of the Sub-Adviser's Form ADV as filed with the issuer Securities and Exchange Commission and as amended from time to time and a list of the persons whom the Sub-Adviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio.
d. The Sub-Adviser will consult with and assist the Portfolio's pricing agent regarding the valuation of securities that are not registered for public sale, not traded on any securities markets, or with any broker and/or dealer or other person who deals in otherwise may be deemed illiquid for purposes of the securities in 1940 Act and for which market quotations are not readily available.
e. Unless the Fund is trading. With respect Manager gives the Sub-Adviser written instructions to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealersthe contrary, the Sub-Adviser shall use its good faith judgment in a manner which it reasonably believes best judgment to obtain serves the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients Portfolio's shareholders to vote or abstain from voting all proxies solicited by or with respect to the issuers of securities in which assets of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person Portfolio are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. invested.
f. The Adviser Manager shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons entities with which the Sub-Adviser is restricted from engaging in transactions on behalf of the Adviser.
(c) Portfolio. The Sub-Adviser shall be responsible for complying with this restricted list and any changes thereto 10 business days after its receipt.
g. The Manager acknowledges that the Sub-Adviser is not the compliance agent for the Portfolio and does not have access to all of the Trust may rely on Rules 17a-7Portfolio's books and records necessary to perform certain compliance testing. However, 17a-10the Sub-Adviser shall perform compliance testing with respect to the Portfolio based upon information in its possession and upon written instructions, 10f-3 if any, received from the Manager or the Administrator and 17e-1 shall not be held in breach of this Agreement so long as it performs in accordance with such information and instructions.
h. The Sub-Adviser shall be responsible for commercially reasonable expenses relating to the printing and mailing of any prospectus supplement required by the actions taken by the Sub-Adviser, including but not limited to, portfolio manager changes, disclosure changes requested by the Sub-Adviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the prospectus, where such disclosures are required under applicable law to be distributed to existing annuity contract holders and life policy holders that are invested in the 1940 ActPortfolio. The Manager agrees to provide a detailed invoice of such expenses not later than six months after the expenses are incurred, and the Sub-Adviser hereby agrees that it shall pay the amounts of such expenses with 60 days of receipt of such invoice from the Manager.
i. In accordance with Rule 17a-10 under the 1940 Act and any other applicable law, the Sub-Adviser shall not consult with any other Sub-Adviser to the Portfolio or any Sub-Adviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The j. With respect to those activities for which it performs for or on behalf of the Portfolio, the Sub-Adviser represents, warrants and agrees that the Sub-Adviser has adopted and implemented, and throughout the term of this Agreement will maintain in effect and implement, policies and procedures reasonably designed to prevent, detect and correct violations by the Sub-Adviser, and its supervisory persons, and, to the extent the activities of the Sub-Adviser could affect the Fund, by the Fund, of "federal securities laws" as defined in Rule 38a-1 under the 1940 Act), and that the Sub-Adviser has provided the Adviser Fund with a true and complete copy copies of its compliance such policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Actor summaries thereof) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed related information requested by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser agrees to cooperate with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed periodic reviews by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or Fund's compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period personnel of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect 's policies and procedures, their operation and implementation and other compliance matters and to provide to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation Fund from time to time such additional information and filing certifications in respect of Form 13F on behalf policies and procedures of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsAdviser, except as compliance personnel may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon reasonably request. The Sub-Adviser further agrees to preserve for promptly notify the periods prescribed in Rule 31a-2 under Manager of any compliance violations detected by the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify that affect the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this AgreementPortfolio.
Appears in 1 contract
Sources: Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) The Sub-Adviser Advisor shall, subject to the supervision and oversight of the AdviserAdvisor, manage the investment and reinvestment of the all assets of each of the Fund, subject to the Adviser’s direction with respect to security selection Funds (the “Sub-Advised Fund Assets”). The Sub-Adviser Advisor shall manage the Sub-Advised Fund Assets in conformity with (i) the investment objective, policies and restrictions of each of the Fund Funds set forth in the Trust’s prospectus and statement Statement of additional information Additional Information (“SAI”) relating to the FundFunds, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisor, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, Advisor; (ii) the written instructions and or directions received from delivered by the Adviser and Advisor or the Trust to the Sub-Advisor, as deliveredprovided more particularly below; and (iii) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-AdviserAdvisor’s duties under this Agreement, all as may be in effect from time to time; (iv) that certain order of the SEC dated May 29, 2013 (as may be amended from time to time) granting exemptive relief to the Advisor, the Trust and any investment sub-adviser of any of the Funds from certain provisions of the 1940 Act and the rules promulgated thereunder in respect of each Fund’s status as an exchange-traded fund (“Advisor’s Exemptive Relief”); and (v) that certain order of the SEC dated July 8, 2014 (as may be amended from time to time) granting exemptive relief to the Advisor, the Trust and any investment sub-adviser of any of the Funds from certain provisions of the 1940 Act and the rules promulagatedtherunder in respect of permitting (a) each Fund that operate as “funds of funds” to acquire shares of certain registered open-end management investment companies, registered closed-end management investment companies, “business development companies” (as defined by section 2(a)(48) of the 1940 Act), and registered unit investment trusts that are within and outside the same group of investment companies as the acquiring investment companies; and (b) each Fund relying on rule 12d1-2 under the 1940 Act to invest in certain financial instruments that may not be securities within the meaning of section 2(a)(36) of the 1940 Act. The foregoing materials outlined above in sub-clauses (i) through (iv) of this Section 2 are referred to herein below together collectively as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser Advisor is authorized, in its discretion and without prior consultation with the Adviser, authorized to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser and to hold cash on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole each of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, Funds as the Sub-Adviser shall determineAdvisor deems appropriate, in the Sub-Advisor’s sole discretion and without prior consultation with the Advisor, in light of the Policies. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser Advisor shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserAdvisor, effect such portfolio transactions for the Sub-Advised Fund Assets as the Adviser Advisor shall determine are necessary or desirable in order for the a Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Absent instructions from the Advisor or the officers of the Trust to the contrary, the Sub-Adviser Advisor shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the a Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser Advisor shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser Advisor shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser Advisor may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the a Fund and/or other account over which the Sub-Adviser Advisor and/or an affiliate of the Sub-Adviser Advisor exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser Advisor shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser Advisor may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-AdviserAdvisor’s opinion of the reliability and quality of such broker, dealer or such other person; broker . Broker or dealers selected by the Sub-Adviser Advisor for the purchase and sale of securities or other investment instruments for the Sub-Advised Fund Assets may include the Advisor or brokers or dealers affiliated with the Advisor or the Sub-AdviserAdvisor, provided such orders comply comply, as applicable, with Rules 17a-7, 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17a-7, Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-AdviserAdvisor. Notwithstanding the foregoing, the Sub-Adviser Advisor will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Advisor or the Sub-Adviser or the Adviser Advisor without the prior approval of the AdviserAdvisor. The Adviser Advisor shall provide the Sub-Adviser Advisor with a list of brokers or dealers that are affiliated persons of the AdviserAdvisor.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser Advisor has provided the Adviser Advisor with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Advisor Compliance Policies”). The Sub-AdviserAdvisor’s chief compliance officer (“Sub-Adviser Advisor CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Advisor Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Advisor Compliance Policies;
(iii) a copy of the Sub-Adviser Advisor CCO’s report with respect to the annual review of the Sub-Adviser Advisor Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-AdviserAdvisor’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – through (iii).
(ed) The Sub-Adviser Advisor may, on occasions when it deems the purchase or sale of a security to be in the best interests of the a Fund as well as other fiduciary or agency accounts managed by the Sub-AdviserAdvisor, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser Advisor in the manner it considers to be most fair and equitable over time to each of the Fund Funds and to its other accounts.
(fe) The Sub-AdviserAdvisor, in connection with its rights and duties with respect to each of the Fund Funds and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gf) The services of the Sub-Adviser hereunder Advisor to the Advisor, the Funds and the Trust are not to be deemed exclusive to be exclusive, and the Sub-Adviser Advisor shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services to others and will transmit to engage in other activities. It is understood and agreed that the directors, officers, and employees of Sub-Advisor are not prohibited from engaging in any other business activity or from rendering services to any person other person, or entity notice from serving as partners, officers, directors, trustees, or employees of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, firm or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Advisercorporation.
(hg) The Sub-Adviser Advisor shall furnish the Adviser Advisor monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Fund Assets as the Adviser Advisor may reasonably determine request in such form as may be forms that are mutually agreed upon, upon by the Advisor and the Sub-Advisor. The Sub-Advisor also agrees to review the Sub-Advised Fund Assets with the Adviser Advisor and to discuss the management of themsuch assets on a quarterly basis and as otherwise reasonably requested by the Advisor. The Sub-Adviser Advisor shall promptly respond to requests by the Adviser Advisor and the Trust CCO or their respective delegates for copies of the pertinent books and records relating directly to a Fund and as maintained by the Sub-Adviser relating directly to the FundAdvisor in accordance with applicable rules, laws and regulations. The Sub-Adviser Advisor shall also provide the Adviser Advisor with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jh) The Sub-Adviser Advisor will, unless and until otherwise directed by the Advisor, exercise all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Sub-Advisor’s then-current proxy voting policies.
(i) The Sub-Advisor shall cooperate promptly and fully with the Adviser Advisor and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund Funds or the Adviser Advisor brought by any governmental or regulatory authorities. The Sub-Adviser Advisor shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) SEC in an examination or otherwise that relate to or that may affect the Sub-AdviserAdvisor’s responsibilities with respect to the each Fund.
(kj) The Sub-Adviser Advisor shall be responsible for the preparation and filing of Schedule 13G and Form 13F with the SEC on behalf of the Sub-Advised Fund Assets. The Sub-Adviser Advisor shall not be responsible for the preparation or filing of any other reports required on behalf of or in connection with the Sub-Advised Fund Assets, the Funds or the Trust, except as may be expressly agreed to in writing.
(lk) The Sub-Adviser Advisor shall maintain separate detailed records of all matters pertaining to the Sub-Advised Fund Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 17a-7, Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser Advisor on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser Advisor further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(ml) The Sub-Adviser Advisor shall promptly notify the Adviser Advisor of any financial condition that is likely to impair the Sub-AdviserAdvisor’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser and the Trust as delivereddelivered (to the extent delivered in accordance with Section 18 hereof); and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Adviser or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account accounts over which the Sub-Adviser and/or an any affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(cd) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 17e-l under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 l under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 38a-l of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 38a-l under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may reasonably request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 38a-l of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(hi) The Sub-Adviser shall furnish the Adviser and the administrators of the Trust (together, the “Administrators”) weekly, monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Adviser, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues that are identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise written correspondence to the Sub-Adviser and that relate to or that may affect the services provided by the Sub-Adviser’s responsibilities Adviser to the Fund pursuant to this Agreement. The Sub-Adviser shall provide such notification within a reasonable period after receiving the correspondence. The Sub-Adviser shall provide additional information with respect to such deficiencies as is reasonably requested by the FundTrust CCO or his or her delegatee.
(k1) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 3la-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code-), (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “that are reasonably designed to prevent violations of the federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide within a reasonable time to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) delegatee the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 38a-1 under the Advisers 1940 Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser Advisers to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser Advisers and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the AdviserAdvisers.
(hi) The Sub-Adviser shall furnish the Adviser Advisers and the administrators of the Trust (together, the “Administrators”) monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser Advisers may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Advisers and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Advisers, the Administrators to the Trust, and the Trust CCO or their delegates delegatees for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser Advisers with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the AdviserAdvisers, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser Advisers shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser Advisers and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or either of the Adviser Advisers brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate delegatee with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may materially affect the Sub-Adviser’s responsibilities with respect to the Fund.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser may retain copies of such records to comply with its own recordkeeping obligations under the Advisers Act. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser Advisers of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser and the Trust as delivereddelivered (to the extent delivered in accordance with Section 18 hereof); and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Adviser or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account accounts over which the Sub-Adviser and/or an any affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(cd) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may reasonably request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(hi) The Sub-Adviser shall furnish the Adviser and the administrators of the Trust (together, the “Administrators”) weekly, monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Adviser, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues that are identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise written correspondence to the Sub-Adviser and that relate to or that may affect the services provided by the Sub-Adviser’s responsibilities Adviser to the Fund pursuant to this Agreement. The Sub-Adviser shall provide such notification within a reasonable period after receiving the correspondence. The Sub-Adviser shall provide additional information with respect to such deficiencies as is reasonably requested by the FundTrust CCO or his or her delegatee.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “"Sub-Advised Assets”"). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s 's prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s 's Chief Compliance Officer, or by the Trust’s 's Board of Trustees (“"Board”") that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “"1940 Act”"), the Investment Advisers Act of 1940 (“"Advisers Act”"), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s 's duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “"Policies.” " For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available (and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actnot necessarily best price). In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s 's opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s 's Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “"affiliated person” " (as defined under the 1940 Act) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s 's assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its key compliance policies and procedures for compliance with “"federal securities laws” " (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act with ▇▇▇pect to the services provided to the Trust, as well as a copy of matrix summarizing the key policies, procedures and controls with respect to such services (the “"Sub-Adviser Compliance Policies”"). The Sub-Adviser’s 's chief compliance officer (“"Sub-Adviser CCO”") shall provide provide, within a reasonable time, to the Trust’s 's Chief Compliance Officer (“"Trust CCO”") or his or her delegate promptly (and in no event more than 10 business days) delegatee the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity accordance with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, make reasonable commercial efforts , upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the PoliciesPolicies and Subadvisor shall not be liable for any losses resulting from such transactions.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing The Subadviser shall furnish the best overall terms available for any transaction, Manager (which may also provide it to the Sub-Adviser Fund’s Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall consider all factors it deems relevant, including provide to the breadth Manager a copy of the market in the security, the price Subadviser’s Form ADV Part II and as materially amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser, to the extent one or more exist, to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
e. Unless the Manager gives the Subadviser written instructions to the contrary, to the extent materials have been received by the Subadviser in a timely fashion from the Portfolio’s custodian, the Subadviser shall; (di) The Sub-Adviser has provided vote proxies relating to the Adviser Portfolio’s investment securities in accordance with a true and complete copy of its compliance the Fund’s proxy voting policies and procedures for compliance which defer to the proxy voting policies and procedures adopted by the Subadviser in conformance with “federal securities laws” (as such term is defined Rule 206(4)-6 under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Investment Advisers Act of 1940 (a summary of which is described in the “Sub-Adviser Compliance Policies”Subadviser’s Form ADV Part II, as amended from time to time). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (; and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
provide corporate action instructions (iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iiiwhich shall not include class actions).
f. As the delegate of the Directors of the Fund, the Subadviser shall be responsible for consulting with the Manager from time to time (enot daily fair valuation) when requested to provide such information on a specific security as Subadviser may have that could be supportive to the Manager in determining a reasonable and good faith fair valuations for any securities in the Portfolio for which current market quotations are not readily available or reliable.
g. The SubSubadviser shall be responsible for expenses relating to the printing and mailing of prospectus supplemental material, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the prospectus. Application of this provision will not apply where the above-Adviser may, on described changes can be implemented through annual updates or revisions otherwise required of the Manager but not prompted solely as a result of actions taken by the Subadviser.
h. On occasions when it the Subadviser deems the purchase or sale of a security to be in the best interests interest of the Fund Portfolio as well as other fiduciary or agency accounts managed by clients of the Sub-AdviserSubadviser, aggregate, the Subadviser to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be purchased or sold or purchased in order to attempt to obtain the best overall terms available a more favorable price or lower brokerage commissions and execution with respect to common and preferred stocks and the best net price and execution with respect to other securitiesefficient execution. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser Subadviser in the manner it considers to be the most fair equitable and equitable over time consistent with its fiduciary obligations to the Fund Portfolio and to its other accountsclients.
(f) i. The Sub-AdviserSubadviser, as part of its duties hereunder, is not responsible for determining whether or not the Portfolio is a suitable and appropriate investment for the clients who invest in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsPortfolio.
(g) The services j. In respect of currency transactions for the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligationsPortfolio, the Sub-Adviser Subadviser, as part of its duties hereunder, when trading with an entity other than the Fund’s custodian, will seek the best result in terms of net price in light of all applicable fees and charges.
k. The Subadviser may give advice and take action with respect to any of those other clients which may differ from the advice rely on specific information, instructions or requests given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement made to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed Subadviser by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities Manager with respect to the Fund.
(k) The Sub-Adviser shall be responsible for , the preparation Portfolio and filing of Form 13F on behalf the management of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsPortfolio’s assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required which are believed to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained in good faith by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required Subadviser to be maintained under Rule 31a-1 under the 1940 Actreliable.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Sub Advisory Agreement (Brighthouse Funds Trust II)
Sub-Advisory Services. (a) The Sub-Adviser Advisor shall, subject to the supervision and oversight of the AdviserAdvisor, manage the investment and reinvestment of the all assets of each of the Fund, subject to the Adviser’s direction with respect to security selection Funds (the “Sub-Advised Fund Assets”). The Sub-Adviser Advisor shall manage the Sub-Advised Fund Assets in conformity with (i) the investment objective, policies and restrictions of each of the Fund Funds set forth in the Trust’s prospectus and statement Statement of additional information Additional Information (“SAI”) relating to the FundFunds, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisor, the Trust’s Chief Compliance OfficerOfficer (“Trust CCO”), or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, Advisor; (ii) the written instructions and or directions received from delivered by the Adviser and Advisor or the Trust to the Sub-Advisor, as deliveredprovided more particularly below; and (iii) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-AdviserAdvisor’s duties under this Agreement, all as may be in effect from time to time; (iv) that certain order of the SEC dated May 29, 2013 (as may be amended from time to time) granting exemptive relief to the Advisor, the Trust and any investment sub-adviser of any of the Funds from certain provisions of the 1940 Act and the rules promulgated thereunder in respect of each Fund’s status as an exchange-traded fund (“Advisor’s Exemptive Relief”); and (v) that certain order of the SEC dated July 8, 2014 (as may be amended from time to time) granting exemptive relief to the Advisor, the Trust and any investment sub-adviser of any of the Funds from certain provisions of the 1940 Act and the rules promulgated thereunder in respect of permitting (a) each Fund that operate as “funds of funds” to acquire shares of certain registered open-end management investment companies, registered closed-end management investment companies, “business development companies” (as defined by section 2(a)(48) of the 1940 Act), and registered unit investment trusts that are within and outside the same group of investment companies as the acquiring investment companies; and (b) each Fund relying on rule 12d1-2 under the 1940 Act to invest in certain financial instruments that may not be securities within the meaning of section 2(a)(36) of the 1940 Act. The foregoing materials outlined above in sub-clauses (i) through (iv) of this Section 2 are referred to herein below together collectively as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser Advisor is authorized, in its discretion and without prior consultation with the Adviser, authorized to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser and to hold cash on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole each of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, Funds as the Sub-Adviser shall determineAdvisor deems appropriate, in the Sub-Advisor’s sole discretion and without prior consultation with the Advisor, in light of the Policies. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser Advisor shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserAdvisor, effect such portfolio transactions for the Sub-Advised Fund Assets as the Adviser Advisor shall determine are necessary or desirable in order for the a Fund to comply with the Policies.
b) Absent instructions from the Advisor or the officers of the Trust to the contrary, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser Advisor shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the a Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser Advisor shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser Advisor shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser Advisor may also consider the brokerage and research services (as those terms are defined in Section section 28(e) of the Securities Exchange Act of 1934) provided to the a Fund and/or other account over which the Sub-Adviser Advisor and/or an affiliate of the Sub-Adviser Advisor exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser Advisor shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser Advisor may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-AdviserAdvisor’s opinion of the reliability and quality of such broker, dealer or such other person; broker . Broker or dealers selected by the Sub-Adviser Advisor for the purchase and sale of securities or other investment instruments for the Sub-Advised Fund Assets may include the Advisor or brokers or dealers affiliated with the Advisor or the Sub-AdviserAdvisor, provided such orders comply comply, as applicable, with Rules 17a-7, 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17a-7, Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-AdviserAdvisor. Notwithstanding the foregoing, the Sub-Adviser Advisor will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Advisor or the Sub-Adviser or the Adviser Advisor without the prior approval of the AdviserAdvisor. The Adviser Advisor shall provide the Sub-Adviser Advisor with a list of brokers or dealers that are affiliated persons of the AdviserAdvisor.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser Advisor has provided the Adviser Advisor with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Advisor Compliance Policies”). The Sub-AdviserAdvisor’s chief compliance officer (“Sub-Adviser Advisor CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) CCO or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) i. a report of any material changes to the Sub-Adviser Advisor Compliance Policies;
(ii) . a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Advisor Compliance Policies;
(iii) . a copy of the Sub-Adviser Advisor CCO’s report with respect to the annual review of the Sub-Adviser Advisor Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) . an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-AdviserAdvisor’s compliance with Rule 206(4)-7 under the Advisers Act and Section section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii)sections i through iv.
(ed) The Sub-Adviser Advisor may, on occasions when it deems the purchase or sale of a security to be in the best interests of the a Fund as well as other fiduciary or agency accounts managed by the Sub-AdviserAdvisor, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser Advisor in the manner it considers to be most fair and equitable over time to each of the Fund Funds and to its other accounts.
(fe) The Sub-AdviserAdvisor, in connection with its rights and duties with respect to each of the Fund Funds and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gf) The services of the Sub-Adviser hereunder Advisor to the Advisor, the Funds and the Trust are not to be deemed exclusive to be exclusive, and the Sub-Adviser Advisor shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services to others and will transmit to engage in other activities. It is understood and agreed that the directors, officers, and employees of Sub-Advisor are not prohibited from engaging in any other business activity or from rendering services to any person other person, or entity notice from serving as partners, officers, directors, trustees, or employees of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, firm or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Advisercorporation.
(hg) The Sub-Adviser Advisor shall furnish the Adviser Advisor monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Fund Assets as the Adviser Advisor may reasonably determine request in such form as may be forms that are mutually agreed upon, upon by the Advisor and the Sub-Advisor. The Sub-Advisor also agrees to review the Sub-Advised Fund Assets with the Adviser Advisor and to discuss the management of themsuch assets on a quarterly basis and as otherwise reasonably requested by the Advisor. The Sub-Adviser Advisor shall promptly respond to requests by the Adviser Advisor and the Trust CCO or their respective delegates for copies of the pertinent books and records relating directly to a Fund and as maintained by the Sub-Adviser relating directly to the FundAdvisor in accordance with applicable rules, laws and regulations. The Sub-Adviser Advisor shall also provide the Adviser Advisor with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jh) The Sub-Adviser Advisor will, unless and until otherwise directed by the Advisor, exercise all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Sub-Advisor’s then-current proxy voting policies.
i) The Sub-Advisor shall cooperate promptly and fully with the Adviser Advisor and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund Funds or the Adviser Advisor brought by any governmental or regulatory authorities. The Sub-Adviser Advisor shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) SEC in an examination or otherwise that relate to or that may affect the Sub-AdviserAdvisor’s responsibilities with respect to the each Fund.
(kj) The Sub-Adviser Advisor shall be responsible for the preparation and filing of Schedule 13G and Form 13F with the SEC on behalf of the Sub-Advised Fund Assets. The Sub-Adviser Advisor shall not be responsible for the preparation or filing of any other reports required on behalf of or in connection with the Sub-Advised Fund Assets, the Funds or the Trust, except as may be expressly agreed to in writing.
(lk) The Sub-Adviser Advisor shall maintain separate detailed records of all matters pertaining to the Sub-Advised Fund Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 17a-7, Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser Advisor on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser Advisor further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(ml) The Sub-Adviser Advisor shall promptly notify the Adviser Advisor of any financial condition that is likely to impair the Sub-AdviserSub- Advisor’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the Trust’s Fund's prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the "Prospectus"), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) Fund's Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code) and directions received from "segregated asset accounts" (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the "Policies"), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”") the rules and regulations thereunder and the interpretive opinions thereof of the staff of the Securities and Exchange Commission ("SEC") ("SEC Positions"); provided, however, that the Investment Advisers Act Manager agrees to inform the Subadviser of 1940 any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Advisers Act”"Insurance Restrictions"), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser Subadviser shall place orders pursuant to its determinations either directly with furnish the issuer or with any broker Manager and the Administrator daily, weekly, monthly, quarterly and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing annual reports concerning portfolio transactions and selecting brokers the investment performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or dealersagents of the Manager, the Sub-Adviser shall use its best judgment to obtain Administrator or the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the transaction and Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the commission are comparable to what they would be with other qualified firmsend of the calendar quarter. In no instance, however, will The Subadviser shall also provide the Assets be purchased from or sold to the Adviser, Sub-AdviserManager, the Trust’s principal underwriter, Administrator or any affiliated person of either the Trust, AdviserFund with such other information and reports as may reasonably be requested by the Manager, the Sub-Adviser Administrator or the principal underwriterFund from time to time, acting including without limitation all material as principal in the transaction, except to the extent permitted reasonably may be requested by the Securities and Exchange Commission (“SEC”Directors of the Fund pursuant to Section 15(c) and of the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that Subadviser shall provide to the Adviser Manager a copy of the Subadviser's Form ADV as filed with the SEC and as amended from time to time and a list of the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 persons whom the Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio;
(d) In accordance with Rule 17a-10 under the 1940 ActAct and any other applicable law, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide Portfolio's shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of securities in which assets of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accountsPortfolio are invested.
(f) The Sub-AdviserAs the delegate of the Directors of the Fund, the Subadviser shall provide Manager with information providing the basis for reasonable and good faith fair valuations for any securities in connection with its rights and duties with respect the Portfolio for which the Subadviser deems current market quotations are either not readily available or not reliable. Subadviser will also provide fair valuation information in response to the Fund and reasonable inquiry of the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsManager or Manager's delegate.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser Subadviser shall be responsible for expenses relating to the preparation printing and filing mailing of Form 13F on behalf any prospectus supplement, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets. The Sub-Adviser shall not described changes can be responsible for the preparation implemented through annual updates or filing of any other reports revisions otherwise required on behalf of the Sub-Advised Assets, except Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing The Subadviser shall furnish the best overall terms available for any transaction, Manager (which may also provide it to the Sub-Adviser Fund’s Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall consider all factors it deems relevant, including provide to the breadth Manager a copy of Part 2 of the market in Subadviser’s Form ADV as filed with the security, the price SEC and as amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided e. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-AdviserPortfolio’s chief compliance officer (“Sub-Adviser CCO”) shall provide shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which assets of the Sub-Advised Assets may be Portfolio are invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with f. As the Adviser and/or delegate of the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to Directors of the TrustFund, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser Subadviser shall be responsible for providing reasonable and good faith fair valuations for any securities in the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. Portfolio for which current market quotations are not readily available or reliable.
g. The Sub-Adviser Subadviser shall not be responsible for expenses relating to the preparation or filing printing and mailing of any other reports prospectus supplement, exclusive of annual updates, required on behalf solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets, except described changes can be implemented through annual updates or revisions otherwise required of the Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Sub Advisory Agreement (Brighthouse Funds Trust II)
Sub-Advisory Services. (a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with with:
(i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, ; any additional policies or guidelines, including without limitation limitation, the compliance policies and procedures, procedures established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, ;
(ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code;
(iii) the written instructions and directions received from the Adviser and the Trust as delivered; and and
(iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund. The Sub-Adviser shall only be responsible for the Sub-Advised Assets’ compliance with the Policies, and the Sub-Adviser shall not be responsible in any way be deemed responsible for the management or compliance of any other assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, : (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, ; and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Adviser or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actexecution. In assessing the best overall terms execution available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available execution available, and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser Adviser, and/or an affiliate of the Sub-Adviser Adviser, exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(cd) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render same or similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(hi) The Sub-Adviser shall furnish the Adviser and the administrators of the Trust (together, the “Administrators”) monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly timely respond to requests by the Adviser Adviser, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly timely and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues that are identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise written correspondence to the Sub-Adviser and that relate to or that may affect the services provided by the Sub-Adviser’s responsibilities Adviser to the Fund pursuant to this Agreement. The Sub-Adviser shall provide such notification within a reasonable period after receiving the correspondence. The Sub-Adviser shall provide additional information with respect to such deficiencies as is reasonably requested by the FundTrust CCO or his or her delegate.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writingwriting by the parties.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly timely to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests PHTRANS/ 484468.2 applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Adviser or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are PHTRANS/ 484468.2 defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(cd) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (““ Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;; PHTRANS/ 484468.2
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. Aggregation may on some occasions operate to the advantage of the Fund and on other occasions to the disadvantage of the Fund. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby). The Adviser acknowledges that the Sub-Adviser performs investment advisory Adviser, any affiliate and the directors, officers, employees thereof (“Interested Persons”) may perform similar services for various others. The Sub-Adviser and where applicable other Interested Persons will use their best efforts to allocate investment opportunities among their clients in an equitable manner. Further, the Adviser understands the investment action taken on behalf of the Fund and other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, of the Sub-Adviser may give advice differ. An Interested Person may buy, hold and take action with respect to deal in any of those investments or other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement asset of any non-compete agreement kind, nature or other agreement description whatsoever (notwithstanding that the same or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as similar investments may be required to give effect to this provision; and held by the Sub-Adviser will not become a party to any non-compete agreement Fund) whether for its own account or that of any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviserperson.
(hi) The Sub-Adviser shall furnish the Adviser and the administrators of the Trust (together, the “Administrators”) weekly, monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such PHTRANS/ 484468.2 form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Adviser, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility. However the Sub-Adviser shall be responsible for voting all corporate events or actions including any redemption, merger, consolidation, re-organisation, re-capitalisation, tender offer, rights offering, exchange, subscription or other offering in respect of which a vote is required to be exercised and such other corporate events or actions in respect of an investment arising in connection with the Fund in accordance with its fiduciary duties to the Fund and a written policy provided by the Sub-Adviser to the Adviser.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues that are identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise written correspondence to the Sub-Adviser and that relate to or that may affect the services provided by the Sub-Adviser’s responsibilities Adviser to the Fund pursuant to this Agreement. The Sub-Adviser shall provide such notification within a reasonable period after receiving the correspondence. The Sub-Adviser shall provide additional information with respect to such deficiencies as is reasonably requested by the FundTrust CCO or his or her delegatee.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records PHTRANS/ 484468.2 required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the FundCompany, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund Company set forth in the Trust’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, Adviser or the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) Company that have been furnished in writing to the Sub-Adviser, ; (ii) the written instructions and directions received from the Adviser and and/or the Trust Company as delivered; (iii) the rules and guidance issued by the FCA from time to time; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 Act, the Commodity Exchange Act, as amended (“Advisers ActCEA”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. Without limitation of the foregoing, the Sub-Adviser shall comply with all statutory and regulatory requirements relating to derivatives transactions entered into by the Sub-Adviser for or on behalf of the Company, including without limitation, compliance with all recordkeeping and reporting requirements pursuant to Parts 43, 45 and 46 of the regulations of the CFTC (provided, however, that, upon request by the Adviser, the Sub-Adviser shall provide such records to the Adviser within three business days in order for the Adviser and the Company to be in compliance with CFTC Regulation 45.2(e)(2)) and comparable rules of the United States Securities and Exchange Commission (“SEC”) (collectively, the “Derivatives Recordkeeping and Reporting Rules”). The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire FundCompany, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the FundCompany, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundCompany, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund Company to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund Company with securities included within the Sub-Advised Assets. The Sub-Adviser is authorized (i) to sign any documentation or agreements related to any transactions or matter involving the insolvency, bankruptcy, or potential thereof, of any issuer of a security, including any documentation or agreements related to any composition, compromise, assignment or arrangement made between any issuer of a security with any of its creditors held in the Company, (ii) to register any security issued in relation to any insolvency, bankruptcy, restructuring or potential thereof, of any issuer, in the Company’s name, and (iii) to sign agreements and other associated documentation related to an exchange, tender, or other early extinguishment of securities held in the Company.
(b) The Absent instructions from the Adviser or the Company to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund Company is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund Company and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Investment Company Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Investment Company Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Investment Company Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Investment Company Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of under the 1940 Investment Company Act) and Rule 206(4)-7 of under the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no any event more than within 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Investment Company Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of under the 1940 Investment Company Act as well as the foregoing sub-paragraphs (i) – - (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund Company as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund Company and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust Company shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their its affiliates to employ or engage any person or organization, now or in the future, to manage the Fund Company or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO Company or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the FundCompany. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board of Trustees of the Trust (the “Board”).
(i) Unless otherwise instructed by The Sub-Adviser shall vote proxies relating to the AdviserCompany’s investment securities in accordance with (i) the Trust’s proxy voting policies and procedures, which provide that the Sub-Adviser shall not have the power, discretion or responsibility vote all proxies relating to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance held by the Adviser Company and, subject to the Trust’s policies and transmitted to procedures, shall use proxy voting policies and procedures adopted by the Sub-Adviser and (b) vote any proxies in connection conformance with securities in which Rule 206(4)-6 under the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibilityInvestment Advisers Act.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust Company in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund Company or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period (but in any event within three business days) of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) SEC in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the FundCompany.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act Investment Company Act, CFTC Regulations 4.23 and 4.33 or the Derivatives Recordkeeping and Reporting Rules that are prepared or maintained by the Sub-Adviser on behalf of the Trust Company are the property of the Trust Company and will be surrendered promptly to the Trust Company upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Investment Company Act the records required to be maintained under Rule 31a-1 under the 1940 Investment Company Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
(n) Upon request from the Adviser, or the custodian or recordkeeping agent of the Company, the Sub-Adviser will, to the best of its ability, provide reasonable assistance to the Adviser, custodian or recordkeeping agent in determining or confirming, consistent with the procedures and policies stated in the Trust’s valuation policy and procedures and/or the Trust’s prospectus and statement of additional information (as may be amended from time to time), the value of any of the Company’s holdings or other assets. Such reasonable assistance shall include (but is not limited to) verifying pricing and providing fair valuations or recommendations for fair valuations to the Adviser. In addition, if the Sub-Adviser becomes aware, over the course of its regular activities, that (1) the value of any holding of the Company does not appear to reflect corporate actions, news, or other significant events; (2) a market quotation is not readily available or is deemed to be unreliable; or (3) the holding otherwise requires a review to determine if a fair valuation is necessary under the policies and procedures of the Sub-Adviser used to determine the value of portfolio holdings, the Sub-Adviser will, to the best of its ability, promptly notify the Company or the Adviser. The Sub-Adviser shall have written policies and procedures that address the above requirements. The Sub-Adviser shall notify the Company and the Adviser immediately if it identifies any error in connection with the valuation of a Sub-Advised Asset.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and the Trustees, and in cooperation with any custodian and administrator appointed by the Manager performing the duties of a custodian (the "Custodian"), and administrator (the "Administrator") manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Fund in conformity with (with:
i) the The investment objective, policies and restrictions of the Fund as set forth in the Trust’s prospectus and statement of additional information relating to the Fund's then-current registration statement, as they may be amended filed with the SEC from time to time; and
ii) Any procedures, any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, Manager or the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been and furnished in writing to the Sub-Adviser; and
iii) The provisions of Subchapter M of the Internal Revenue Code of 1986, (ii) the written instructions and directions received from the Adviser and the Trust rules and regulations thereunder, as delivered; and amended from time to time (iiithe "Code"), and
iv) the requirements Other applicable provisions of the Investment Company Act of 1940 (the “1940 Act”)Code, including, without limitation, the Investment Advisers diversification requirements under Section 817(h) of the Code; and
v) The provisions of the 1940 Act of 1940 (“Advisers Act”), and all other applicable federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policiesregulations (collectively, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies"Investment Guidelines"). Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; , and the majority or the whole of the Sub-Advised Assets Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall shall, in its best judgment, determine. Notwithstanding the foregoing any provisions of this Section 2(a)) to the contrary, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Fund as the Adviser Manager shall determine are necessary in order for the Fund to comply with the Policiesabove enumerated requirements. The Adviser shall furnish the Manager, the Custodian, and (ii) upon notice the Administrator, as appropriate, with monthly, quarterly and annual reports concerning transactions, performance, and management of the Fund in such form as the Manager may reasonably request to assure comparability with other information provided to the Sub-AdviserBoard of Trustees, and agrees to review the Adviser may effect in-kind redemptions with shareholders Fund and discuss the management of the Fund with securities included within representatives or agents of the Sub-Advised AssetsManager, or the Administrator, at their reasonable request. The Adviser shall permit access to all books and records with respect to the Fund during normal business hours, on reasonable notice. The Adviser shall also provide the Manager, or the Administrator, with such other information and reports as the Manager or the Administrator may reasonably request from time to time. The Adviser shall make senior portfolio manager(s) available for presentations to the Trustees at a meeting of the Board of Trustees at least annually, as well as other meetings as may be reasonably requested.
(b) The Sub-Adviser shall place orders pursuant make available to the Manager, promptly upon request, any of the Fund's investment records and ledgers as are necessary to assist the Manager to comply with the requirements of the 1940 Act and the Advisers Act, as well as other applicable laws and regulations, and will furnish to regulatory authorities having the requisite authority any information or reports relating to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals services under this Agreement that may be requested in the securities in which order to ascertain whether the Fund is trading. With respect to common being managed in a manner consistent with applicable laws and preferred stocksregulations.
(c) The Advisers shall, in executing portfolio transactions and selecting brokers or dealers, connection with the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders of securities for the Fund, arrange for the transmission to the Custodian on a daily basis, such confirmations, trade tickets, and other documents and information, including, but not limited to, Cusip, Sedol, or other numbers that identify securities to brokers be purchased or dealers if the Sub-Adviser believes that the quality sold on behalf of the transaction and Fund, as may be reasonably necessary to enable the commission are comparable Custodian to what they would be perform its responsibilities with other qualified firms. In no instancerespect to the Fund, howeverand, will the Assets with respect to portfolio securities to be purchased from or sold through the Depository Trust Company, and will arrange for the automatic transmission of the confirmation of such trades to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission Custodian.
(“SEC”d) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-The Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition prepare and execution capability of the broker file any schedule or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Subnotification required by Regulation 13D-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of G under the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transactionamended, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser certification with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with regard to any other securities eligible for passive foreign investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii)credits.
(e) The Sub-Adviser may, on occasions when it deems shall review all proxy solicitation materials and be responsible for voting and handling all proxies in relation to the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed securities held by the Sub-Adviser, aggregate, to Fund. The Adviser shall instruct the extent permitted by applicable laws and regulationsCustodian, the securities to be sold or purchased in order to obtain the best overall terms available Administrator, and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time parties providing services to the Fund and to its other accountspromptly forward misdirected proxy materials to the Adviser.
(f) The Sub-Manager shall perform quarterly and annual tax compliance tests to ensure that the Fund is in compliance with Subchapter M of the Code and Section 817(h) of the Code. In connection with such compliance tests, the Manager shall prepare and provide reports to the Adviser within ten (10) business days of a calendar quarter end relating to the diversification of the Fund under Subchapter M and Section 817(h) of the Code. The Adviser shall review such reports for purposes of determining compliance with such diversification requirements. If it is determined that the Fund is not in compliance with the requirements noted above, the Adviser, in connection consultation with its rights and duties with respect the Manager, will take prompt action to bring the Fund and back into compliance within the Trust shall use the care, skill, prudence and diligence time permitted under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsCode.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the Trust’s Fund's prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the "Prospectus"), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) Fund's Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code) and directions received from "segregated asset accounts" (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the "Policies"), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”") the rules and regulations thereunder and the interpretive opinions thereof of the staff of the Securities and Exchange Commission ("SEC") ("SEC Positions"); provided, however, that the Investment Advisers Act Manager agrees to inform the Subadviser of 1940 any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Advisers Act”"Insurance Restrictions"), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies.
b. The Subadviser shall furnish the Manager and the Administrator daily, weekly, monthly, quarterly and/or annual reports concerning portfolio transactions and the investment performance of the Portfolio in such form as may be mutually agreed upon, and (ii) upon notice agrees to review the Sub-AdviserPortfolio and discuss the management of the Portfolio with representatives or agents of the Manager, the Adviser Administrator or the Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the end of the calendar quarter. The Subadviser shall also provide the Manager, the Administrator or the Fund with such other information and reports as may effect in-kind redemptions with shareholders reasonably be requested by the Manager, the Administrator or the Fund from time to time, including without limitation all material as reasonably may be requested by the Directors of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Section 15(c) of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing The Subadviser shall furnish the best overall terms available for any transaction, Manager (which may also provide it to the Sub-Adviser Fund's Board of Directors) with copies of all material comments that are directly related to the Portfolio and the services provided under this Agreement received from the SEC following routine or special SEC examinations or inspections.
c. The Subadviser shall consider all factors it deems relevant, including provide to the breadth Manager a copy of the market in Subadviser's Form ADV as filed with the security, the price SEC and as amended from time to time and a list of the security, persons whom the financial condition and execution capability Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. Portfolio;
d. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent accordance with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 Rule 17a-10 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoinglaw, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided e. Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide Portfolio's shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which assets of the Sub-Advised Assets may be Portfolio are invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with f. As the Adviser and/or delegate of the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to Directors of the TrustFund, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser Subadviser shall be responsible for providing reasonable and good faith fair valuations for any securities in the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. Portfolio for which current market quotations are not readily available or reliable.
g. The Sub-Adviser Subadviser shall not be responsible for expenses relating to the preparation or filing printing and mailing of any other reports prospectus supplement, exclusive of annual updates, required on behalf solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets, except described changes can be implemented through annual updates or revisions otherwise required of the Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation limitation, compliance policies and procedures, established by the AdviserAdvisers, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(hi) The Sub-Adviser shall furnish the Adviser reports Advisers and the administrators of the Trust (together, the “Administrators”) monthly, quarterly and annual reports, or more frequently as the Advisers may request, concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser Advisers may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Advisers and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Advisers, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser Advisers with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the AdviserAdvisers, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser Advisers shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser Advisers and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or either of the Adviser Advisers brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser Advisers of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and the Trustees, and in cooperation with the custodian and administrator appointed by the Manager performing the duties of a custodian (the "Custodian"), and administrator (the "Administrator") manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Fund in conformity with (with:
i) the The investment objective, policies and restrictions of the Fund as provided for Adviser's prior review and comment not less than ten (10) business days in advance or as otherwise agreed to by the parties, and as set forth in the Trust’s prospectus and statement of additional information relating to the Fund's then-current registration statement, as they may be amended filed with the SEC from time to time; and
ii) Any procedures, any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, Manager or the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been and furnished in writing to the Sub-AdviserAdviser for its prior approval not less than ten (10) business days in advance, (iiwhich approval shall not be unreasonably withheld; and
iii) The provisions of Subchapter M of the written instructions and directions received from the Adviser Internal Revenue Code of 1986, and the Trust rules and regulations thereunder, as delivered; and amended from time to time (iiithe "Code"), and
iv) the requirements Other applicable provisions of the Investment Company Act of 1940 (the “1940 Act”)Code, including, without limitation, the Investment Advisers diversification requirements under Section 817(h) of the Code; and
v) The provisions of the 1940 Act of 1940 (“Advisers Act”), and all other applicable federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policiesregulations (collectively, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies"Investment Guidelines"). Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; , and the majority or the whole of the Sub-Advised Assets Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall shall, in its best judgment, determine. Notwithstanding the foregoing any provisions of this Section 2(a)) to the contrary, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Fund as the Adviser Manager shall determine are necessary in order for the Fund to comply with the Policiesabove enumerated requirements. Adviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Fund or that the Fund will perform comparably with any standard or index, including other clients of Adviser, whether public or private. The Adviser shall furnish the Manager, the Custodian and the Administrator, as appropriate, with monthly, quarterly and annual reports concerning transactions, performance, and (ii) upon notice management of the Fund in such form as the Manager may reasonably request to assure comparability with other information provided to the Sub-AdviserBoard of Trustees, provided, however that Adviser shall not be responsible for Fund accounting and shall not be required to generate information derived from Fund accounting data, and agrees to review the Adviser may effect in-kind redemptions with shareholders Fund and discuss the management of the Fund with securities included within representatives or agents of the Sub-Advised AssetsManager, or the Administrator, at their reasonable request. The Adviser shall permit access to all books and records with respect to the Fund during normal business hours, on reasonable notice. The Adviser shall also provide the Manager, or the Administrator, with such other information and reports as the Manager or the Administrator may reasonably request from time to time. The Adviser shall use commercially reasonable efforts to make senior portfolio manager(s) or other appropriate Janus representatives available for presentations to the Trustees at a meeting of the Board of Trustees at least annually, as well as other meetings as may be reasonably requested.
(b) The Sub-Adviser shall place orders pursuant make available to the Manager, promptly upon request, any of the Fund's investment records and ledgers as are necessary to assist the Manager to comply with the requirements of the 1940 Act and the Advisers Act, as well as other applicable laws and regulations, and will furnish to regulatory authorities having the requisite authority any information or reports relating to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals services under this Agreement that may be requested in the securities in which order to ascertain whether the Fund is trading. With respect to common being managed in a manner consistent with applicable laws and preferred stocksregulations.
(c) The Adviser shall, in executing portfolio transactions and selecting brokers or dealers, connection with the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders of securities for the Fund, arrange for the transmission to the Custodian on a daily basis, such confirmations, trade tickets, and other documents and information, including, but not limited to, Cusip, Sedol, or other numbers that identify securities to brokers be purchased or dealers if the Sub-Adviser believes that the quality sold on behalf of the transaction and Fund, as may be reasonably necessary to enable the commission are comparable Custodian to what they would be perform its responsibilities with other qualified firms. In no instancerespect to the Fund, howeverand, will the Assets with respect to portfolio securities to be purchased from or sold through the Depository Trust Company, and will arrange for the transmission of the confirmation of such trades to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission Custodian.
(“SEC”d) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-The Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition prepare and execution capability of the broker file any schedule or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Subnotification required by Regulation 13D-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of G under the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable amended and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar reasonable commercial efforts to inform Manager with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free regard to render similar services to others (including other passive foreign investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed credits held by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reportsHowever, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised AssetsManager or the Fund by any governmental or regulatory agency, except as may be expressly agreed to in writing.
(le) The Sub-Adviser shall maintain separate detailed records of review all matters pertaining proxy solicitation materials and be responsible for voting and handling all proxies in relation to the Sub-Advised Assetssecurities held by the Fund. The Adviser shall instruct the Custodian, includingthe Administrator, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant parties providing services to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered Fund to promptly forward misdirected proxy materials to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActAdviser.
(mf) The Sub-Manager shall perform quarterly and annual tax compliance tests to ensure that the Fund is in compliance with Subchapter M of the Code and Section 817(h) of the Code. In connection with such compliance tests, the Manager shall prepare and provide reports to the Adviser within ten (10) business days of a calendar quarter end relating to the diversification of the Fund under Subchapter M and Section 817(h) of the Code. The Adviser shall promptly notify review such reports for purposes of determining compliance with such diversification requirements. If it is determined that the Fund is not in compliance with the requirements noted above, the Adviser, in consultation with the Manager, will take prompt action to bring the Fund back into compliance within the time permitted under the Code.
(g) Adviser shall have no responsibility to monitor the 90%-source test or perform other such testing or monitoring for which Adviser determines it has not been provided sufficient information. . All such testing or monitoring shall be the responsibility of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this AgreementManager.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and the Trustees, and in cooperation with the custodian and administrator appointed by the Manager performing the duties of a custodian (the "Custodian"), and administrator (the "Administrator") manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets Fund in conformity with (with:
i) the The investment objective, policies and restrictions of the Fund as provided for Adviser's prior review and comment not less than ten (10) business days in advance or as otherwise agreed to by the parties, and as set forth in the Trust’s prospectus and statement of additional information relating to the Fund's then-current registration statement, as they may be amended filed with the SEC from time to time; and
ii) Any procedures, any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, Manager or the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been and furnished in writing to the Sub-AdviserAdviser for its prior approval not less than ten (10) business days in advance, (iiwhich approval shall not be unreasonably withheld; and
iii) The provisions of Subchapter M of the written instructions and directions received from the Adviser Internal Revenue Code of 1986, and the Trust rules and regulations thereunder, as deliveredamended from time to time (the "Code"); and (iiiand
iv) the requirements Other applicable provisions of the Investment Company Act of 1940 (the “1940 Act”)Code, including, without limitation, the Investment Advisers diversification requirements under Section 817(h) of the Code; and
v) The provisions of the 1940 Act of 1940 (“Advisers Act”), and all other applicable federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policiesregulations (collectively, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies"Investment Guidelines"). Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; , and the majority or the whole of the Sub-Advised Assets Fund may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall shall, in its best judgment, determine. Notwithstanding the foregoing any provisions of this Section 2(a)) to the contrary, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Fund as the Adviser Manager shall determine are necessary in order for the Fund to comply with the Policiesabove enumerated requirements. Adviser makes no representation or warrantY, expres$ or implied, that any level of performance or investment results will be achieved by the Fund or that the Fund will perform comparably with any standard or index, including other clients of Adviser, whether public or private. The Adviser shall furnish the Manager, the Custodian and the Administrator, as appropriate, with monthly, quarterly and annual reports concerning transactions, performance, and (ii) upon notice management of the Fund in such form as the Manager may reasonably request to assure comparability with other information provided to the Sub-AdviserBoard of Trustees, provided, however that Adviser shall not be responsible for Fund accounting and shall not be required to generate information derived from Fund accounting data, and agrees to review the Adviser may effect in-kind redemptions with shareholders Fund and discuss the management of the Fund with securities included within representatives or agents of the Sub-Advised AssetsManager, or the Administrator, at their reasonable request. The Adviser shall permit access to all books and records with respect to the Fund during normal business hours, on reasonable notice. The Adviser shall also provide the Manager, or the Administrator, with such other information and reports as the Manager or the Administrator may reasonably request from time to time. The Adviser shall use commercially reasonable efforts to make senior portfolio manager(s) or other appropriate Janus representatives available for presentations to the Trustees at a meeting of the Board of Trustees at least annually, as well as other meetings as may be reasonably requested.
(b) The Sub-Adviser shall place orders pursuant make available to its determinations either directly the Manager, promptly upon request, any of the Fund's investment records and ledgers as are necessary to assist the Manager to comply with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality requirements of the transaction 1940 Act and the commission are comparable to what they would be with other qualified firms. In no instanceAdvisers Act, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law laws and regulations, aggregate and will furnish to regulatory authorities having the requisite authority any information or reports relating to its services under this Agreement that may be requested in order for securities to be sold or purchased. In such event, ascertain whether the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, Fund is being managed in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund applicable laws and to such other clients under the circumstances. With respect to securities other than common and preferred stocksregulations.
(c) The Adviser shall, in placing orders connection with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities for the Fund, arrange for the transmission to the Custodian on a daily basis, such confirmations, trade tickets, and other documents and information, including, but not limited to, Cusip, Sedol, or other investment instruments for the Sub-Advised Assets may include brokers numbers that identify securities to be purchased or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) sold on behalf of the Sub-Adviser or Fund, as may be reasonably necessary to enable the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser Custodian to the Trust perform its responsibilities with respect to transactions in the Fund, and, with respect to portfolio securities to be purchased or sold through the Depository Trust Company, and will arrange for the Sub-Advised Assets or any other transactions in transmission of the Trust’s assets, other than for confirmation of such trades to the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 ActCustodian.
(d) The SubAdviser shall prepare and file any schedule or notification required by Regulation 13D-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 G under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy Securities and Exchange Act of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold1934, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired therebyamended. The Adviser acknowledges shall also use reasonable commercial efforts to notify the Manager of those portfolio investments held by the Fund which constitute "passive foreign investment companies" within the meaning of Section 1297 of the Internal Revenue Code of 1986, as amended (each a "PFIC"). Any investments so identified shall be reported to the Manager; provided, however that the Sub-Adviser performs investment advisory services for various other clients in addition to does not, and shall not be required to, warrant the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any accuracy or completeness of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fundsuch information. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets comply with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Manager (or its auditor) for information regarding particular Fund investments to assist the Adviser and the Trust CCO or their delegates for copies in a definitive determination of the pertinent books and records maintained by PFIC status of such investments, provided that such information is within the Sub-Adviser relating directly to the FundAdviser's control or is obtainable with reasonable effort. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or of filing of any other reports required on behalf of the Sub-Advised AssetsManager or the Fund by any governmental or regulatory agency, except as may be expressly agreed to in writing.
(le) The Sub-Adviser shall maintain separate detailed records of review all matters pertaining proxy solicitation materials and be responsible for voting and handling all proxies in relation to the Sub-Advised Assetssecurities held by the Fund. The Adviser shall instruct the Custodian, includingthe Administrator, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant parties providing services to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered Fund to promptly forward misdirected proxy materials to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActAdviser.
(mf) The Sub-Manager shall perform quarterly and annual tax compliance tests to ensure that the Fund is in compliance with Subchapter M of the Code and Section 817(h) of the Code. In connection with such compliance tests, the Manager shall prepare and provide reports to the Adviser within ten (10) business days of a calendar quarter end relating to the diversification of the Fund under Subchapter M and Section 817(h) of the Code. The Adviser shall promptly notify review such reports for purposes of determining compliance with such diversification requirements. If it is determined that the Fund is not in compliance with the requirements noted above, the Adviser, in consultation with the Manager, will take prompt action to bring the Fund back into compliance within the time permitted under the Code.
(g) Adviser shall have no responsibility to monitor the 90%-source test or perform other such testing or monitoring for which Adviser determines it has not been provided sufficient information. All such testing or monitoring shall be the responsibility of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this AgreementManager.
Appears in 1 contract
Sub-Advisory Services. (a) The Sub-Adviser Advisor shall, subject to the supervision and oversight of the AdviserAdvisor, manage the investment and reinvestment of the all assets of each of the Fund, subject to the Adviser’s direction with respect to security selection Funds (the “Sub-Advised Fund Assets”). The Sub-Adviser Advisor shall manage the Sub-Advised Fund Assets in conformity with (i) the investment objective, policies and restrictions of each of the Fund Funds set forth in the Trust’s prospectus and statement Statement of additional information Additional Information (“SAI”) relating to the FundFunds, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisor, the Trust’s Chief Compliance OfficerOfficer (“Trust CCO”), or by the Trust’s Board of Trustees (“Board”) that have 303052339 v1 been furnished in writing to the Sub-Adviser, Advisor; (ii) the written instructions and or directions received from delivered by the Adviser and Advisor or the Trust to the Sub-Advisor, as deliveredprovided more particularly below; and (iii) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-AdviserAdvisor’s duties under this Agreement, all as may be in effect from time to time; (iv) that certain order of the SEC dated May 29, 2013 (as may be amended from time to time) granting exemptive relief to the Advisor, the Trust and any investment sub-adviser of any of the Funds from certain provisions of the 1940 Act and the rules promulgated thereunder in respect of each Fund’s status as an exchange-traded fund (“Advisor’s Exemptive Relief”); and (v) that certain order of the SEC dated July 8, 2014 (as may be amended from time to time) granting exemptive relief to the Advisor, the Trust and any investment sub-adviser of any of the Funds from certain provisions of the 1940 Act and the rules promulgated thereunder in respect of permitting (a) each Fund that operate as “funds of funds” to acquire shares of certain registered open-end management investment companies, registered closed-end management investment companies, “business development companies” (as defined by section 2(a)(48) of the 1940 Act), and registered unit investment trusts that are within and outside the same group of investment companies as the acquiring investment companies; and (b) each Fund relying on rule 12d1-2 under the 1940 Act to invest in certain financial instruments that may not be securities within the meaning of section 2(a)(36) of the 1940 Act. The foregoing materials outlined above in sub-clauses (i) through (iv) of this Section 2 are referred to herein below together collectively as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser Advisor is authorized, in its discretion and without prior consultation with the Adviser, authorized to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser and to hold cash on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole each of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, Funds as the Sub-Adviser shall determineAdvisor deems appropriate, in the Sub-Advisor’s sole discretion and without prior consultation with the Advisor, in light of the Policies. Notwithstanding the foregoing provisions of this Section 2(a), however, (i) the Sub-Adviser Advisor shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserAdvisor, effect such portfolio transactions for the Sub-Advised Fund Assets as the Adviser Advisor shall determine are necessary or desirable in order for the a Fund to comply with the Policies.
b) Absent instructions from the Advisor or the officers of the Trust to the contrary, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser Advisor shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the a Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser Advisor shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser Advisor shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser Advisor may also consider the brokerage and research services (as those terms are defined in Section section 28(e) of the Securities Exchange Act of 1934) provided to the a Fund and/or other account over which the Sub-Adviser Advisor and/or an affiliate of the Sub-Adviser Advisor exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser Advisor shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to 303052339 v1 be comparable, the Sub-Adviser Advisor may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-AdviserAdvisor’s opinion of the reliability and quality of such broker, dealer or such other person; broker . Broker or dealers selected by the Sub-Adviser Advisor for the purchase and sale of securities or other investment instruments for the Sub-Advised Fund Assets may include the Advisor or brokers or dealers affiliated with the Advisor or the Sub-AdviserAdvisor, provided such orders comply comply, as applicable, with Rules 17a-7, 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17a-7, Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-AdviserAdvisor. Notwithstanding the foregoing, the Sub-Adviser Advisor will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Advisor or the Sub-Adviser or the Adviser Advisor without the prior approval of the AdviserAdvisor. The Adviser Advisor shall provide the Sub-Adviser Advisor with a list of brokers or dealers that are affiliated persons of the AdviserAdvisor.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser Advisor has provided the Adviser Advisor with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Advisor Compliance Policies”). The Sub-AdviserAdvisor’s chief compliance officer (“Sub-Adviser Advisor CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) CCO or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) i. a report of any material changes to the Sub-Adviser Advisor Compliance Policies;
(; ii) . a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Advisor Compliance Policies;
(iii) . a copy of the Sub-Adviser Advisor CCO’s report with respect to the annual review of the Sub-Adviser Advisor Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) . an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-AdviserAdvisor’s compliance with Rule 206(4)-7 under the Advisers Act and Section section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii)sections i through iv.
(ed) The Sub-Adviser Advisor may, on occasions when it deems the purchase or sale of a security to be in the best interests of the a Fund as well as other fiduciary or agency accounts managed by the Sub-AdviserAdvisor, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser Advisor in the manner it considers to be most fair and equitable over time to each of the Fund Funds and to its other accounts.
(fe) The Sub-AdviserAdvisor, in connection with its rights and duties with respect to each of the Fund Funds and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.. 303052339 v1
(gf) The services of the Sub-Adviser hereunder Advisor to the Advisor, the Funds and the Trust are not to be deemed exclusive to be exclusive, and the Sub-Adviser Advisor shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services to others and will transmit to engage in other activities. It is understood and agreed that the directors, officers, and employees of Sub-Advisor are not prohibited from engaging in any other business activity or from rendering services to any person other person, or entity notice from serving as partners, officers, directors, trustees, or employees of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, firm or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Advisercorporation.
(hg) The Sub-Adviser Advisor shall furnish the Adviser Advisor monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Fund Assets as the Adviser Advisor may reasonably determine request in such form as may be forms that are mutually agreed upon, upon by the Advisor and the Sub-Advisor. The Sub-Advisor also agrees to review the Sub-Advised Fund Assets with the Adviser Advisor and to discuss the management of themsuch assets on a quarterly basis and as otherwise reasonably requested by the Advisor. The Sub-Adviser Advisor shall promptly respond to requests by the Adviser Advisor and the Trust CCO or their respective delegates for copies of the pertinent books and records relating directly to a Fund and as maintained by the Sub-Adviser relating directly to the FundAdvisor in accordance with applicable rules, laws and regulations. The Sub-Adviser Advisor shall also provide the Adviser Advisor with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jh) The Sub-Adviser Advisor will, unless and until otherwise directed by the Advisor, exercise all rights of security holders with respect to securities held by each Fund, including, but not limited to: voting proxies in accordance with the Sub-Advisor’s then-current proxy voting policies.
i) The Sub-Advisor shall cooperate promptly and fully with the Adviser Advisor and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund Funds or the Adviser Advisor brought by any governmental or regulatory authorities. The Sub-Adviser Advisor shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) SEC in an examination or otherwise that relate to or that may affect the Sub-AdviserAdvisor’s responsibilities with respect to the each Fund.
(kj) The Sub-Adviser Advisor shall be responsible for the preparation and filing of Schedule 13G and Form 13F with the SEC on behalf of the Sub-Advised Fund Assets. The Sub-Adviser Advisor shall not be responsible for the preparation or filing of any other reports required on behalf of or in connection with the Sub-Advised Fund Assets, the Funds or the Trust, except as may be expressly agreed to in writing.
(lk) The Sub-Adviser Advisor shall maintain separate detailed records of all matters pertaining to the Sub-Advised Fund Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 17a-7, Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser Advisor on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser Advisor further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(ml) The Sub-Adviser Advisor shall promptly notify the Adviser Advisor of any financial condition that is likely to impair the Sub-AdviserSub- Advisor’s ability to fulfill its commitments under this Agreement.. 303052339 v1
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Series. The Sub-Adviser shall manage the Sub-Advised Assets Series in conformity with (i1) the investment objective, policies and restrictions of the Fund Series set forth in the Trust’s 's prospectus and statement of additional information relating to the FundSeries provided to the Sub-Adviser in accordance with Section 2.a hereof, as they may be amended from time to time(2) any changes in, or any additional additional, policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) 's trustees that have been furnished in writing to the Sub-Adviser, Adviser in accordance with Section 2.a hereof and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the "Policies"), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies ") and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, rules and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policiesregulations thereunder. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundSeries, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Series may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, Sub-Advisory Agreement - International Equity Fund (2) as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Series as the Adviser Manager shall determine are necessary in order for the Fund Series to comply with the Policies; and the Manager hereby agrees to hold the Sub-Adviser harmless from any loss, and (ii) upon notice to damage or liability that may result from the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders 's action in reliance upon or pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ written instructions from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the AdviserManager.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Sub Advisory Agreement (Undiscovered Managers Funds)
Sub-Advisory Services. (a) The Sub-Adviser Subadviser shall, subject to the supervision and oversight of the AdviserManager and in cooperation with the Manager, as administrator, or with any other administrator appointed by the Manager (the “Administrator”), manage the investment and reinvestment of the assets of the Fund, subject to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Portfolio. The Sub-Adviser Subadviser shall manage invest and reinvest the Sub-Advised Assets assets of the Portfolio in conformity with (i1) the investment objective, policies and restrictions of the Fund Portfolio set forth in the TrustFund’s prospectus and statement of additional information relating to the Fundinformation, as they may be amended revised or supplemented from time to time, relating to the Portfolio (the “Prospectus”), (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the TrustFund’s Board of Trustees (“Board”) Directors that have been furnished in writing to the Sub-Adviser, Subadviser and (ii3) the written instructions provisions of the Internal Revenue Code (the “Code”) applicable to “regulated investment companies” (as defined in Section 851 of the Code) and directions received from “segregated asset accounts” (as defined in Section 817 of the Adviser Code) including, but not limited to, the diversification requirements of Section 817(h) of the Code and the Trust regulations thereunder, all as delivered; from time to time in effect (collectively, the “Policies”), and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “1940 Act”), ) the Investment Advisers Act rules and regulations thereunder and the interpretive opinions thereof of 1940 the staff of the Securities and Exchange Commission (“Advisers ActSEC”) (“SEC Positions”); provided, however, that the Manager agrees to inform the Subadviser of any and all applicable state insurance law restrictions that operate to limit or restrict the investments the Portfolio might otherwise make (“Insurance Restrictions”), and all other federal and state laws applicable to registered investment companies and inform the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance Subadviser promptly of any assets of the Fund, other than the Sub-Advised Assets, with the Policieschanges in such Insurance Restrictions. Subject to the foregoing, the Sub-Adviser Subadviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundPortfolio, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Portfolio may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser Subadviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a)1.a, however, (i) the Sub-Adviser Subadviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Portfolio as the Adviser Manager shall determine are necessary in order for the Fund Portfolio to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser Subadviser shall place orders pursuant to its determinations either directly with furnish the issuer or with any broker Manager and the Administrator daily, weekly, monthly, quarterly and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing annual reports concerning portfolio transactions and selecting brokers the investment performance of the Portfolio in such form as may be mutually agreed upon, and agrees to review the Portfolio and discuss the management of the Portfolio with representatives or dealersagents of the Manager, the Sub-Adviser shall use its best judgment to obtain Administrator or the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality Fund at their reasonable request. The Subadviser shall, as part of a complete portfolio compliance testing program, perform quarterly diversification testing under Section 817 (h) of the transaction and Code. The Subadviser shall provide timely notice each calendar quarter that such diversification was satisfied, or if not satisfied, that corrections were made within 30 days of the commission are comparable to what they would be with other qualified firmsend of the calendar quarter. In no instance, however, will The Subadviser shall also provide the Assets be purchased from or sold to the Adviser, Sub-AdviserManager, the Trust’s principal underwriter, Administrator or any affiliated person of either the Trust, AdviserFund with such other information and reports as may reasonably be requested by the Manager, the Sub-Adviser Administrator or the principal underwriterFund from time to time, acting including without limitation all material as principal in the transaction, except to the extent permitted reasonably may be requested by the Securities and Exchange Commission (“SEC”Directors of the Fund pursuant to Section 15(c) and of the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that Subadviser shall provide to the Adviser Manager a copy of the Subadviser’s Form ADV as filed with the SEC and as amended from time to time and a list of the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 persons whom the Subadviser wishes to have authorized to give written and/or oral instructions to custodians of assets of the Portfolio;
(d) In accordance with Rule 17a-10 under the 1940 ActAct and any other applicable law, and the Sub-Adviser hereby agrees that it Subadviser shall not consult with any other subadviser to the Portfolio or any subadviser to any other portfolio of the Fund or to any other investment company or investment company series for which the Manager serves as investment adviser to concerning transactions of the Trust with respect to transactions Portfolio in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided Unless the Adviser with Manager gives the Subadviser written instructions to the contrary, the Subadviser shall use its good faith judgment in a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 manner which it reasonably believes best serves the interest of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-AdviserPortfolio’s chief compliance officer (“Sub-Adviser CCO”) shall provide shareholders to the Trust’s Chief Compliance Officer (“Trust CCO”) vote or his abstain from voting all proxies solicited by or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review issuers of securities in which assets of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accountsPortfolio are invested.
(f) The Sub-AdviserAs the delegate of the Directors of the Fund, the Subadviser shall provide Manager with information providing the basis for reasonable and good faith fair valuations for any securities in connection with its rights and duties with respect the Portfolio for which the Subadviser deems current market quotations are either not readily available or not reliable. Subadviser will also provide fair valuation information in response to the Fund and reasonable inquiry of the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aimsManager or Manager’s delegate.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser Subadviser shall be responsible for expenses relating to the preparation printing and filing mailing of Form 13F on behalf any prospectus supplement, exclusive of annual updates, required solely as a result of actions taken by the Subadviser, including but not limited to, portfolio manager changes or disclosure changes requested by the Subadviser that affect the investment objective, principal investment strategies, principal investment risks and portfolio management sections of the Subprospectus. Application of this provision will not apply where the above-Advised Assets. The Sub-Adviser shall not described changes can be responsible for the preparation implemented through annual updates or filing of any other reports revisions otherwise required on behalf of the Sub-Advised Assets, except Manager but not prompted solely as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records a result of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained actions taken by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 ActSubadviser.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sources: Sub Advisory Agreement (Metropolitan Series Fund Inc)
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “"Sub-Advised Assets”"). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s 's prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s 's Chief Compliance Officer, or by the Trust’s 's Board of Trustees (“"Board”") that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “"1940 Act”"), the Investment Advisers Act of 1940 (“"Advisers Act”"), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s 's duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “"Policies.” " For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s 's opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 l0f-3 under the 1940 Act and the Trust’s 's Rule 17e-1 and Rule 10f-3 l0f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “"affiliated person” " (as defined under the 1940 Act) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-1017a-l0, 10f-3 l0f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s 's assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “"federal securities laws” " (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “"Sub-Adviser Compliance Policies”"). The Sub-Adviser’s 's chief compliance officer (“"Sub-Adviser CCO”") shall provide to the Trust’s 's Chief Compliance Officer (“"Trust CCO”") or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Sub- Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the AdviserAdvisers, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free [Material Redacted Pursuant to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed an Exemptive Order Issued by the AdviserU.S. Securities and Exchange Commission].
(hi) The Sub-Adviser shall furnish the Adviser Advisers and the administrators of the Trust (together, the “Administrators”) weekly, monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser Advisers may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Advisers and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Advisers, the Administrators to the Trust, and the Trust CCO or their delegates delegatees for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser Advisers with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the AdviserAdvisers, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser Advisers shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser Advisers and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or either of the Adviser Advisers brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate delegatee with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser Advisers of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the Adviser, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Adviser may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation compliance policies and procedures, established by the Adviser, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been PHTRANS/ 484468.2 NTAC:3NS-20 furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the Adviser, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the Adviser, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Adviser or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may PHTRANS/ 484468.2 NTAC:3NS-20 also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, respects or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(cd) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (““ Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;; PHTRANS/ 484468.2 NTAC:3NS-20
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.. PHTRANS/ 484468.2 NTAC:3NS-20
(hi) The Sub-Adviser shall furnish the Adviser and the administrators of the Trust (together, the “Administrators”) weekly, monthly, quarterly and annual reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Adviser, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues that are identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise written correspondence to the Sub-Adviser and that relate to or that may affect the services provided by the Sub-Adviser’s responsibilities Adviser to the Fund pursuant to this Agreement. The Sub-Adviser shall provide such notification within a reasonable period after receiving the correspondence. The Sub-Adviser shall provide additional information with respect to such deficiencies as is reasonably requested by the FundTrust CCO or his or her delegatee.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of PHTRANS/ 484468.2 NTAC:3NS-20 the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) a. The Sub-Adviser shall, subject to the supervision and oversight of the AdviserManager and of any administrator appointed by the Manager (the "Administrator"), manage the investment and reinvestment of such portion of the assets of the Fund, subject Series as the Manager may from time to time allocate to the Adviser’s direction with respect to security selection (the “Sub-Advised Assets”)Adviser for management (such portion, the "Segment") and the Sub-Adviser shall have the authority on behalf of the Series to vote all proxies and exercise all other rights of the Series as a security holder of companies in which the Segment from time to time invests. The Sub-Adviser shall manage the Sub-Advised Assets Segment in conformity with (i1) the investment objective, policies and restrictions of the Fund Series set forth in the Trust’s 's prospectus and statement of additional information relating to the FundSeries, as they may be amended from time to time, (2) any additional policies or guidelines, including without limitation compliance policies and procedures, guidelines established by the Adviser, the Trust’s Chief Compliance Officer, Manager or by the Trust’s Board of Trustees (“Board”) 's trustees that have been furnished in writing to the Sub-Adviser, Adviser and (ii3) the written instructions provisions of the Internal Revenue Code (the "Code") applicable to "regulated investment companies" (as defined in Section 851 of the Code), all as from time to time in effect (collectively, the "Policies"), and directions received from the Adviser and the Trust as delivered; and (iii) the requirements with all applicable provisions of law, including without limitation all applicable provisions of the Investment Company Act of 1940 (the “"1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies ") and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to timerules and regulations thereunder. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets Segment as though the Sub-Advised Assets Segment constituted the entire FundSeries, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the FundSeries, other than the Sub-Advised AssetsSegment, with the Policies, or for the compliance of the Series, taken as a whole, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserManager, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the FundSegment, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets Segment may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a), 1.a; however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by the Adviser and Sub-Adviser) from the AdviserManager, effect such portfolio transactions for the Sub-Advised Assets Segment as the Adviser Manager shall determine are necessary in order for the Fund Series to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(b) The Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Act. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstances. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act) of the Sub-Adviser or the Adviser without the prior approval of the Adviser. The Adviser shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the Adviser.
(c) The Sub-Adviser acknowledges that the Adviser and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(d) The Sub-Adviser has provided the Adviser with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(e) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(f) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(g) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser.
(h) The Sub-Adviser shall furnish the Adviser reports concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser relating directly to the Fund. The Sub-Adviser shall also provide the Adviser with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it from time to time, including without limitation all material requested by or required to be delivered to the Board.
(i) Unless otherwise instructed by the Adviser, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser shall retain such responsibility.
(j) The Sub-Adviser shall cooperate promptly and fully with the Adviser and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or the Adviser brought by any governmental or regulatory authorities. The Sub-Adviser shall provide the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(k) The Sub-Adviser shall be responsible for the preparation and filing of Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(l) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(m) The Sub-Adviser shall promptly notify the Adviser of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
Appears in 1 contract
Sub-Advisory Services. (a) The Advisers hereby appoint the Sub-Adviser to act as an investment adviser to the Fund for the periods and on the terms herein set forth. The Sub-Adviser accepts such appointment and agrees to render the services herein set forth, for the compensation herein provided.
(b) The Sub-Adviser shall, subject to the supervision and oversight of the AdviserAdvisers, manage the investment and reinvestment of such portion of the assets of the Fund, subject as the Advisers may from time to time allocate to the Adviser’s direction with respect to security selection Sub-Adviser for management (the “Sub-Advised Assets”). The Sub-Adviser shall manage the Sub-Advised Assets in conformity with (i) the investment objective, policies and restrictions of the Fund set forth in the Trust’s prospectus and statement of additional information relating to the Fund, as they may be amended from time to time, any additional policies or guidelines, including without limitation limitation, compliance policies and procedures, established by the AdviserAdvisers, the Trust’s Chief Compliance Officer, or by the Trust’s Board of Trustees (“Board”) that have been furnished in writing to the Sub-Adviser, (ii) the asset diversification tests applicable to regulated investment companies pursuant to section 851(b)(3) of the Internal Revenue Code, (iii) the written instructions and directions received from the Adviser Advisers and the Trust as delivered; and (iiiiv) the requirements of the Investment Company Act of 1940 (the “1940 Act”), the Investment Advisers Act of 1940 (“Advisers Act”), and all other federal and state laws applicable to registered investment companies and the Sub-Adviser’s duties under this Agreement, all as may be in effect from time to time. The foregoing are referred to below together as the “Policies.” For purposes of compliance with the Policies, the Sub-Adviser shall be entitled to treat the Sub-Advised Assets as though the Sub-Advised Assets constituted the entire Fund, and the Sub-Adviser shall not be responsible in any way for the compliance of any assets of the Fund, other than the Sub-Advised Assets, with the Policies. Subject to the foregoing, the Sub-Adviser is authorized, in its discretion and without prior consultation with the AdviserAdvisers, to buy, sell, lend and otherwise trade in any stocks, bonds and other securities and investment instruments that have been approved by the Adviser on behalf of the Fund, without regard to the length of time the securities have been held and the resulting rate of portfolio turnover or any tax considerations; and the majority or the whole of the Sub-Advised Assets may be invested in such proportions of stocks, bonds, other securities or investment instruments, or cash, as the Sub-Adviser shall determine. Notwithstanding the foregoing provisions of this Section 2(a1(b), however, (i) the Sub-Adviser shall, upon and in accordance with written instructions (or instructions in any form agreed upon by from either of the Adviser and Sub-Adviser) from the AdviserAdvisers, effect such portfolio transactions for the Sub-Advised Assets as the Adviser shall determine are necessary in order for the Fund to comply with the Policies, and (ii) upon notice to the Sub-Adviser, the Adviser Advisers may effect in-kind redemptions with shareholders of the Fund with securities included within the Sub-Advised Assets.
(bc) The Absent instructions from the Advisers or the officers of the Trust to the contrary, the Sub-Adviser shall place orders pursuant to its determinations either directly with the issuer or with any broker and/or dealer or other person who deals in the securities in which the Fund is trading. With respect to common and preferred stocks, in executing portfolio transactions and selecting brokers or dealers, the Sub-Adviser shall use its best judgment to obtain the best overall terms available and is authorized to allocate purchase and sale orders for securities to brokers or dealers if the Sub-Adviser believes that the quality of the transaction and the commission are comparable to what they would be with other qualified firms. In no instance, however, will the Assets be purchased from or sold to the Adviser, Sub-Adviser, the Trust’s principal underwriter, or any affiliated person of either the Trust, Adviser, the Sub-Adviser or the principal underwriter, acting as principal in the transaction, except to the extent permitted by the Securities and Exchange Commission (“SEC”) and the 1940 Actavailable. In assessing the best overall terms available for any transaction, the Sub-Adviser shall consider all factors it deems relevant, including the breadth of the market in the security, the price of the security, the financial condition and execution capability of the broker or dealer, and the reasonableness of the commission, if any, both for the specific transaction and on a continuing basis. In evaluating the best overall terms available and in selecting the broker or dealer to execute a particular transaction, the Sub-Adviser may also consider the brokerage and research services (as those terms are defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the Fund and/or other account over which the Sub-Adviser and/or an affiliate of the Sub-Adviser exercises investment discretion and the research services provided to the Adviser. When the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Funds as well as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent permitted by applicable law and regulations, aggregate the order for securities to be sold or purchased. In such event, the Sub-Adviser will allocate securities so purchased or sold, as well as the expenses incurred in the transaction, in a manner the Sub-Adviser reasonably considers to be equitable and consistent with its fiduciary obligations to the Fund and to such other clients under the circumstancesdiscretion. With respect to securities other than common and preferred stocks, in placing orders with brokers, dealers or other persons, the Sub-Adviser shall attempt to obtain the best net price and execution of its orders, provided that to the extent the execution and price available from more than one broker, dealer or other such person are believed to be comparable, the Sub-Adviser may, at its discretion but subject to applicable law, select the executing broker, dealer or such other person on the basis of the Sub-Adviser’s opinion of the reliability and quality of such broker, dealer or such other person; broker or dealers selected by the Sub-Adviser for the purchase and sale of securities or other investment instruments for the Sub-Advised Assets may include brokers or dealers affiliated with the Sub-Adviser, provided such orders comply with Rules 17e-1 and 10f-3 under the 1940 Act and the Trust’s Rule 17e-1 and Rule 10f-3 Procedures, respectively, in all respects, or any other applicable exemptive rules or orders applicable to the Sub-Adviser. Notwithstanding the foregoing, the Sub-Adviser will not effect any transaction with a broker or dealer that is an “affiliated person” (as defined under the 1940 Act▇▇▇▇ ▇▇▇) of the Sub-Adviser or the Adviser Advisers without the prior approval of the AdviserAdvisers. The Adviser Advisers shall provide the Sub-Adviser with a list of brokers or dealers that are affiliated persons of the AdviserAdvisers.
(cd) The Sub-Adviser acknowledges that the Adviser Advisers and the Trust may rely on Rules 17a-7, 17a-10, 10f-3 and 17e-1 under the 1940 Act, and the Sub-Adviser hereby agrees that it shall not consult with any other investment adviser to the Trust with respect to transactions in securities for the Sub-Advised Assets or any other transactions in the Trust’s assets, other than for the purposes of complying with the conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act.
(de) The Sub-Adviser has provided the Adviser Advisers with a true and complete copy of its compliance policies and procedures for compliance with “federal securities laws” (as such term is defined under Rule 38a-1 of the 1940 Act▇▇▇▇ ▇▇▇) and Rule 206(4)-7 of the Advisers Act (the “Sub-Adviser Compliance Policies”). The Sub-Adviser’s chief compliance officer (“Sub-Adviser CCO”) shall provide to the Trust’s Chief Compliance Officer (“Trust CCO”) or his or her delegate delegatee promptly (and in no event more than 10 business days) the following:
(i) a report of any material changes to the Sub-Adviser Compliance Policies;
(ii) a report of any “material compliance matters,” as defined by Rule 38a-1 under the 1940 Act, that have occurred in connection with the Sub-Adviser Compliance Policies;
(iii) a copy of the Sub-Adviser CCO’s report with respect to the annual review of the Sub-Adviser Compliance Policies pursuant to Rule 206(4)-7 under the Advisers Act; and
(iv) an annual (or more frequently as the Trust CCO may request) certification regarding the Sub-Adviser’s compliance with Rule 206(4)-7 under the Advisers Act and Section 38a-1 of the 1940 Act as well as the foregoing sub-paragraphs (i) – (iii).
(ef) The Sub-Adviser may, on occasions when it deems the purchase or sale of a security to be in the best interests of the Fund as well as other fiduciary or agency accounts managed by the Sub-Adviser, aggregate, to the extent permitted by applicable laws and regulations, the securities to be sold or purchased in order to obtain the best overall terms available and execution with respect to common and preferred stocks and the best net price and execution with respect to other securities. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, will be made by the Sub-Adviser in the manner it considers to be most fair and equitable over time to the Fund and to its other accounts.
(fg) The Sub-Adviser, in connection with its rights and duties with respect to the Fund and the Trust shall use the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
(gh) The services of the Sub-Adviser hereunder are not deemed exclusive and the Sub-Adviser shall be free to render similar services to others (including other investment companies) so long as its services under this Agreement are not impaired thereby. The Adviser acknowledges that the Sub-Adviser performs investment advisory services for various other clients in addition to the Fund(s) and, to the extent it is consistent with applicable law and the Sub-Adviser’s fiduciary obligations, the Sub-Adviser may give advice and take action with respect to any of those other clients which may differ from the advice given or the timing or nature of action taken for a particular Fund. The Sub-Adviser will waive enforcement of any non-compete agreement or other agreement or arrangement to which it is currently a party that restricts, limits, or otherwise interferes with the ability of the Adviser to employ or engage any person or entity to provide investment advisory or other services and will transmit to any person or entity notice of such waiver as may be required to give effect to this provision; and the Sub-Adviser will not become a party to any non-compete agreement or any other agreement, arrangement, or understanding that would restrict, limit, or otherwise interfere with the ability of the Adviser and the Trust or any of their affiliates to employ or engage any person or organization, now or in the future, to manage the Fund or any other assets managed by the Adviser[Material Redacted: Confidential Treatment Requested].
(hi) The Sub-Adviser shall furnish the Adviser reports Advisers and the administrators of the Trust (together, the “Administrators”) monthly, quarterly and annual reports, or more frequently as the Advisers may request, concerning portfolio transactions and performance of the Sub-Advised Assets as the Adviser Advisers may reasonably determine in such form as may be mutually agreed upon, and agrees to review the Sub-Advised Assets with the Adviser Advisers and discuss the management of them. The Sub-Adviser shall promptly respond to requests by the Adviser Advisers, the Administrators to the Trust, and the Trust CCO or their delegates for copies of the pertinent books and records maintained by the Sub-Adviser Advisers relating directly to the Fund. The Sub-Adviser shall also provide the Adviser Advisers with such other information and reports, including information and reports related to compliance matters, as may reasonably be requested by it them from time to time, including without limitation all material requested by or required to be delivered to the Board.
(ij) Unless otherwise instructed by the AdviserAdvisers, the Sub-Adviser shall not have the power, discretion or responsibility to (a) select stocks, bonds, other securities or investments for the Fund that have not been approved in advance by the Adviser and transmitted to the Sub-Adviser and (b) vote any proxies in connection with securities in which the Sub-Advised Assets may be invested, and the Adviser Advisers shall retain such responsibility.
(jk) The Sub-Adviser shall cooperate promptly and fully with the Adviser Advisers and/or the Trust in responding to any regulatory or compliance examinations or inspections (including any information requests) relating to the Trust, the Fund or either of the Adviser Advisers brought by any governmental or regulatory authorities. The Sub-Adviser shall provide to the Trust CCO or his or her delegate with notice within a reasonable period of any deficiencies or other issues identified by the United States Securities and Exchange Commission (“SEC”) in an examination or otherwise that relate to or that may affect the Sub-Adviser’s responsibilities with respect to the Fund.
(kl) The Sub-Adviser shall be responsible for the preparation and filing of Schedule 13G and Form 13F on behalf of the Sub-Advised Assets. The Sub-Adviser shall not be responsible for the preparation or filing of any other reports required on behalf of the Sub-Advised Assets, except as may be expressly agreed to in writing.
(lm) The Sub-Adviser shall maintain separate detailed records of all matters pertaining to the Sub-Advised Assets, including, without limitation, brokerage and other records of all securities transactions. Any records required to be maintained and preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the 1940 Act that are prepared or maintained by the Sub-Adviser on behalf of the Trust are the property of the Trust and will be surrendered promptly to the Trust upon request. The Sub-Adviser further agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940 Act the records required to be maintained under Rule 31a-1 under the 1940 Act.
(mn) The Sub-Adviser shall promptly notify the Adviser Advisers of any financial condition that is likely to impair the Sub-Adviser’s ability to fulfill its commitments under this Agreement.
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