Exhibit 5(b)(ii)
SUB-ADVISORY AGREEMENT
AGREEMENT, made this 10th day of July, 1998, between Integrity Capital
Advisors, Inc. (MANAGER), a Delaware corporation, and Xxxxxx Xxxxxxx Xxxxxxxx
& Xxxxx L.L.C., a Delaware limited liability corporation.
WHEREAS, Manager, a wholly-owned subsidiary of ARM Financial Group, Inc., is an
investment adviser registered under the Investment Advisers Act of 1940, as
amended (the ADVISERS ACT);
WHEREAS, the Sub-Adviser is an investment adviser registered under the
Advisers Act;
WHEREAS, pursuant to a Management Agreement dated July 10, 1998 (the
MANAGEMENT AGREEMENT), Manager acts as Investment Manager to The Legends
Fund, Inc. (the Fund), an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the 1940 ACT);
WHEREAS, the Fund is authorized to issue multiple series of shares, each such
series representing a separate portfolio of securities and investments; and
WHEREAS, Manager desires to retain the Sub-Adviser to furnish investment
advisory services to the Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx Equity Growth
Portfolio of the Fund (the PORTFOLIO), and the Sub-Adviser is willing to
accept such appointment on the terms and conditions set forth herein.
NOW, THEREFORE, based on the premises and the consideration set forth herein,
Manager and the Sub-Adviser agree as follows:
SECTION 1. INVESTMENT ADVISORY SERVICES.
Subject to the supervision of the Fund's Board of Directors and Manager, the
Sub-Adviser will provide a continuous investment program for the Portfolio
and determine the composition of the assets of the Portfolio, including
determination of the purchase, retention or sale of the securities, cash, and
other investments contained in the Portfolio's holdings. The Sub-Adviser will
provide investment research and conduct a continuous program of evaluation,
investment, sales, and reinvestment of the Portfolio's assets by determining
the securities and other investments that shall be purchased, entered into,
sold, closed, or exchanged for the Portfolio, when these transactions should
be executed, and what portion of the assets of the Portfolio should be held
in the various securities and other investments in which it may invest, and
the Sub-Adviser is hereby authorized to execute and perform such services on
behalf of the Portfolio. To the extent, if any, permitted by the investment
policies of the Portfolio, the Sub-Adviser shall make determinations as to
and execute and perform futures contracts and options on behalf of the
Portfolio. The Sub-Adviser will provide the services under this Agreement in
accordance with the Portfolio's investment objective or objectives, policies,
and restrictions as stated in the Fund's Registration Statement filed with
the Securities and Exchange Commission (SEC). Manager agrees to supply the
Sub-Adviser with a copy of the Registration Statement and each amendment
thereto (the Registration Statement as amended from time to time hereinafter
referred to as the REGISTRATION STATEMENT) and any other documents that set
forth investment policies, procedures or restrictions governing the Portfolio
and to notify the Sub-Adviser in writing of any changes in the investment
objectives, policies, procedures and restrictions governing the Portfolio.
The Sub-Adviser further agrees as follows:
(a) The Sub-Adviser will manage the Portfolio (i) so that it will qualify as
a regulated investment company under Subchapter M of the Internal Revenue
Code of 1986, as amended (the CODE), and (ii) so as to ensure
compliance by the Portfolio with the diversification requirements of Section
817(h) of the Code and regulations issued thereunder. In managing the
Portfolio in accordance with these requirements, the Sub-Adviser shall be
entitled to receive and act upon advice of counsel to the Fund, counsel to
Manager or counsel to the Sub-Adviser, provided the Sub-Adviser's counsel is
acceptable to Manager.
(b) In undertaking its duties under this Agreement, the Sub-Adviser will
comply with the 1940 Act and all rules and regulations thereunder, all other
applicable federal and state laws and regulations, with any applicable
procedures adopted by the Fund's Board of Directors of which it has notice
and the provisions of the Registration Statement.
(c) On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Portfolio as well as of the
Sub-Adviser's or the Sub-Adviser's affiliates' other investment advisory
clients, the Sub-Adviser may, to the extent permitted by applicable laws and
regulations, but shall not be obligated to, aggregate the securities to be so
sold or purchased with those of its other clients where such aggregation is
not inconsistent with the policies set forth in the Registration Statement.
In such event, the Sub-Adviser will allocate the securities so purchased or
sold, as well as the expenses incurred in the transaction, in a manner that
is fair and equitable in the Sub-Adviser's judgment in the exercise of the
Sub-Adviser's fiduciary obligations to the Fund and to such other clients.
(d) In connection with the purchase and sale of securities for the Portfolio,
the Sub-Adviser, together with Manager, will arrange for the transmission to
the custodian, transfer agent, dividend disbursing agent and recordkeeping
agent for the Fund (such custodian and agent or agents hereinafter referred
to as the AGENT), on a daily basis, such confirmation, trade tickets (which
shall state industry classifications unless the Sub-Adviser has previously
furnished a list of classifications for portfolio securities), and other
documents and information, including (but not limited to) Cusip or other
numbers that identify securities to be purchased or sold on behalf of the
Portfolio and, with respect to mortgage derivative and asset-backed
securities purchased by the Sub-Adviser for the Portfolio, 1066Q reports and
supplemental information as required to be available pursuant to IRS
Publication 938, as may be reasonably necessary to enable the Agent to
perform its administrative and recordkeeping responsibilities with respect to
the Portfolio. With respect to portfolio securities to be purchased or sold
through the Depository Trust Company, the Sub-Adviser will arrange for the
automatic transmission of the confirmation of such trades to the Fund's
Agent, and if requested, Manager.
(e) The Sub-Adviser will monitor on a daily basis, by review of daily pricing
reports provided by the Agent to the Sub-Adviser, the determination by the
Agent for the Fund of the valuation of portfolio securities and other
investments of the Portfolio. The Sub-Adviser shall not be obligated to
independently verify the Agent's pricing determinations, and the Agent's
responsibility for accurate pricing determinations of the value of the
Portfolios's securities shall not be reduced by the Sub-Adviser's duty to
monitor such determinations. The Sub-Adviser will assist the Agent in
determining or confirming, consistent with the procedures and policies stated
in the Registration Statement, the value of any portfolio securities or other
assets of the Portfolio for which the Agent seeks assistance from or
identifies for review by the Sub-Adviser.
(f) The Sub-Adviser will make available to the Fund and Manager, promptly upon
request, all of the Portfolio's investment records and ledgers maintained by the
Sub-Adviser as are necessary to assist the Fund and Manager to comply with
requirements of the 1940 Act and the Advisers Act, as well as other applicable
laws. The Sub-Adviser will furnish to regulatory authorities having the
requisite authority any information or reports in connection with its services
which may be requested in order to ascertain whether the operations of the Fund
are being conducted in a manner
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consistent with applicable laws and regulations.
(g) The Sub-Adviser will provide reports, which may be prepared by the Agent,
to the Fund's Board of Directors for consideration at meetings of the Board
on the investment program for the Portfolio and the issuers and securities
represented in the Portfolio's securities holdings, including a schedule of
the investments and other assets held in the Portfolio and a statement of all
purchases and sales for the Portfolio since the last such statement, and will
furnish the Fund's Board of Directors with periodic and special reports with
respect to the Portfolio as the Directors and Manager may reasonably request,
including statistical information with respect to the Portfolio's securities.
In addition, the Sub-Adviser will make available at each meeting of the Board
of Directors, either in person or by telephone conference call as instructed
by Manager on behalf of the Board of Directors of the Fund, an appropriate
person to discuss the investment performance of the Portfolio.
(h) The Sub-Adviser will provide information and reports to Manager as
Manager shall reasonably request to enable it to review the performance of
the Sub-Adviser under this Agreement.
SECTION 2. BROKER-DEALER SELECTION.
The Sub-Adviser is responsible for decisions to buy and sell securities and
other investments for the Portfolio, broker-dealer and futures commission
merchant selection, and negotiation of brokerage commission and futures
commission merchants' rates. As a general matter, in executing portfolio
transactions the Sub-Adviser may employ or deal with such broker-dealers or
futures commission merchants as may, in the Sub-Adviser's best judgment,
provide prompt and reliable execution of the transactions at favorable prices
and reasonable commission rates. In selecting such broker-dealers or futures
commission merchants, the Sub-Adviser shall consider all relevant factors,
including price (including the applicable brokerage commission, dealer spread
or futures commission merchant rate), the size of the order, the nature of
the market for the security or other investment, the timing of the
transaction, the reputation, experience and financial stability of the
broker-dealer or futures commission merchant involved, the quality of the
service, the difficulty of execution, and the execution capabilities and
operational facilities of the firm involved, and, in the case of securities,
the firm's risk in positioning a block of securities. Subject to such
policies as the Board of Directors may determine and consistent with Section
28(e) of the Securities Exchange Act of 1934, as amended (the 1934 ACT), the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached
any duty created by this Agreement or otherwise solely by reason of the
Sub-Adviser's having caused the Portfolio to pay a member of an exchange,
broker or dealer an amount of commission for effecting a securities
transaction in excess of the amount of commission another member of an
exchange, broker or dealer would have charged for effecting that transaction,
if the Sub-Adviser determines in good faith that such amount of commission
was reasonable in relation to the value of the brokerage and research
services provided by such member of an exchange, broker or dealer, viewed in
terms of either that particular transaction or the Sub-Adviser's overall
responsibilities with respect to the Portfolio and to the Sub-Adviser's other
clients as to which the Sub-Adviser exercises investment discretion. In
accordance with Section 11(a) of the 1934 Act and Rule 11a2-2(T) thereunder,
and subject to any other applicable laws and regulations including Section
17(e) of the 1940 Act and Rule 17e-1 thereunder, the Sub-Adviser may engage
its affiliates, Manager and its affiliates or any other sub-adviser to the
Fund and its respective affiliates as broker-dealers or futures commission
merchants to effect portfolio transactions in securities and other
investments for the Portfolio.
SECTION 3. RECORDS, REPORTS, ETC.
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In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Sub-Adviser hereby agrees that all records which the Sub-Adviser maintains
for the Portfolio are the property of the Fund and further agrees to
surrender promptly to the Fund any of such records upon the Fund's or
Manager's request or upon termination of this Agreement, although the
Sub-Adviser may, at the Sub-Adviser's own expense, make and retain a copy of
such records. The Sub-Adviser further agrees to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-1 under the 1940 Act and to preserve the records
required by the Rule 204-2 under the Advisers Act for the period specified in
the Rule.
SECTION 4. PAYMENT OF EXPENSES.
The Sub-Adviser shall assume and pay all of the costs and expenses of performing
its obligations under this Agreement.
SECTION 5. COMPENSATION FOR SERVICES.
Manager will pay to the Sub-Adviser a monthly sub-advisory fee (adjusted pro
rata for any shorter applicable period) at an annual rate of .40% of the
average daily net assets of the Portfolio from the management fee actually
received by Manager from the Fund; provided, however, that the sub-advisory
fee shall be reduced proportionately if the management fee actually paid to
Manager by the Portfolio shall have been reduced as a result of applicable
state expense limitations or fee waivers agreed to in writing by the
Sub-Adviser. The sub-advisory fee shall be computed, accrue and be payable in
the same manner as the management fee which is payable by the Fund to Manager
pursuant to the Management Agreement and as specified in the Fund's
Registration Statement.
SECTION 6. LIABILITY FOR SERVICES.
Except as may otherwise be required by the 1940 Act or the rules thereunder
or other applicable law, and except as set forth in the next paragraph, the
Fund and Manager agree that the Sub-Adviser, any of its affiliated persons,
and each person, if any, who, within the meaning of Section 15 of the
Securities Act of 1933, as amended, controls the Sub-Adviser, shall not be
liable for, or subject to any damages, expenses, or losses in connection
with, any act or omission connected with or arising out of any services
rendered under this Agreement, except by reason of willful misfeasance, bad
faith, or gross negligence in the performance of the Sub-Adviser's duties, or
by reason of reckless disregard of the Sub-Adviser's obligations and duties
under this Agreement.
SECTION 7. INDEMNIFICATION BY SUB-ADVISER.
The Sub-Adviser agrees to indemnify and hold harmless Manager against any
losses, expenses, claims, damages or liabilities (or actions or proceedings in
respect thereof), to which Manager may become subject arising out of or based on
the breach or alleged breach by the Sub-Adviser of any provisions of this
Agreement; provided, however, that the Sub-Adviser shall not be liable under
this paragraph in respect of any loss, expense, claim, damage or liability to
the extent that a court having jurisdiction shall have determined by a final
judgment, or independent counsel agreed upon by Manager and the Sub-Adviser
shall have concluded in a written opinion, that such loss, expense, claim,
damage or liability resulted primarily from Manager's willful misfeasance, bad
faith or gross negligence or by reason of the reckless disregard by Manager of
its
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duties. The foregoing indemnification shall be in addition to any rights that
Manager may have at common law or otherwise. The Sub-Adviser's agreements in
this paragraph shall, upon the same terms and conditions, extend to and inure
to the benefit of each person who may be deemed to control Manager, be
controlled by Manager or be under common control with Manager and its
affiliates, directors, officers, employees and agents. The Sub-Adviser's
agreements in this paragraph shall also extend to any of Manager's successors
or the successors of the aforementioned affiliates, directors, officers,
employees or agents.
SECTION 8. INDEMNIFICATION BY MANAGER.
Manager agrees to indemnify and hold harmless the Sub-Adviser against any
losses, expenses, claims, damages or liabilities (or actions or proceedings
in respect thereof), to which the Sub-Adviser may become subject arising out
of or based on the breach or alleged breach by Manager of any provisions of
this Agreement or the Management Agreement, or any wrongful action or alleged
wrongful action by Manager or its affiliates in the distribution of the
Fund's shares, or any wrongful action or alleged wrongful action by the Fund
other than wrongful action or alleged wrongful action that was caused by the
breach by the Sub-Adviser of the provisions of this Agreement; provided,
however, that Manager shall not be liable under this paragraph in respect of
any loss, expense, claim, damage or liability to the extent that a court
having jurisdiction shall have determined by a final judgment, or independent
counsel agreed upon by Manager and the Sub-Adviser shall have concluded in a
written opinion, that such loss, expense, claim, damage or liability resulted
primarily from the Sub-Adviser's willful misfeasance, bad faith or gross
negligence or by reason of the reckless disregard by the Sub-Adviser of its
duties. The foregoing indemnification shall be in addition to any rights that
the Sub-Adviser may have at common law or otherwise. Manager's agreements in
this paragraph shall, upon the same terms and conditions, extend to and inure
to the benefit of each person who may be deemed to control the Sub-Adviser,
be controlled by the Sub-Adviser or be under common control with the
Sub-Adviser and to each of the Sub-Adviser's and each such person's
respective affiliates, directors, officers, employees and agents. Manager's
agreements in this paragraph shall also extend to any of the Sub-Adviser's
successors or the successors of the aforementioned affiliates, directors,
officers, employees or agents.
SECTION 9. NOTICE AND DEFENSE OR PROCEEDINGS, ETC.
Promptly after receipt by a party indemnified under paragraph 7 or 8 above of
notice of the commencement of any action, proceeding or investigation for
which indemnification will be sought, such indemnified party shall promptly
notify the indemnifying party in writing; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
otherwise have to any indemnified party unless such omission results in
actual material prejudice to the indemnifying party. In case any action or
proceeding shall be brought against any indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, individually or jointly with
any other indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of any action or proceeding, the indemnifying party shall not be
liable to the indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation. If the indemnifying party does
not elect to assume the defense of any action or proceeding, the indemnifying
party on a monthly basis shall reimburse the indemnified party for the legal
fees and expenses incurred by the indemnified party for continuing its
defense thereof. Regardless of whether or not the indemnifying party shall
have assumed the defense of any action or proceeding, the indemnified party
shall not settle or compromise the action or proceeding without the prior
written consent of the indemnifying party.
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SECTION 10. REPRESENTATIONS AND WARRANTIES; COVENANTS.
(a) The Sub-Adviser hereby represents and warrants as follows:
(i) The Sub-Adviser is registered with the SEC as an investment adviser under
the Advisers Act, and such registration is current, complete and in full
compliance with all material applicable provisions of the Advisers Act and the
rules and regulations thereunder;
(ii) The Sub-Adviser has all requisite authority to enter into, execute, deliver
and perform the Sub-Adviser's obligations under this Agreement;
(iii) The Sub-Adviser's performance of its obligations under this Agreement does
not conflict with any law, regulation or order to which the Sub-Adviser is
subject; and
(iv) The Sub-Adviser has reviewed the Registration Statement for the Fund
filed with the SEC, and with respect to the disclosure about the Sub-Adviser
and the Portfolio or information relating, directly or indirectly, to the
Sub-Adviser or the Portfolio which was made in reliance upon and in
conformity with written information provided by the Sub-Adviser to the Fund
specifically for use therein or, if written information was not provided,
which the Sub-Adviser had the opportunity to review prior to filing with the
SEC, such Registration Statement contains, as of its date, no untrue
statement of any material fact and does not omit any statement of a material
fact which was required to be stated therein or necessary to make the
statements contained therein not misleading.
(b) The Sub-Adviser hereby covenants and agrees that, so long as this Agreement
shall remain in effect:
(i) The Sub-Adviser shall maintain the Sub-Adviser's registration as an
investment adviser under the Advisers Act, and such registration shall at all
times remain current, complete and in full compliance with all material
applicable provisions of the Advisers Act and the rules and regulations
thereunder;
(ii) The Sub-Adviser's performance of its obligations under this Agreement shall
not conflict with any law, regulation or order to which the Sub-Adviser is then
subject;
(iii) The Sub-Adviser shall at all times fully comply with the Advisers Act, the
1940 Act, all applicable rules and regulations under such Acts and all other
applicable law;
(iv) The Sub-Adviser shall promptly notify Manager and the Fund upon the
occurrence of any event that might disqualify or prevent the Sub-Adviser from
performing its duties under this Agreement. The Sub-Adviser further agrees to
notify Manager and the Fund promptly with respect to written material that has
been provided to the Fund or Manager by the Sub-Adviser for inclusion in the
Registration Statement or prospectus for the Fund or any supplement or amendment
thereto, or, if written material has not been provided, with respect to the
information in the Registration Statement or Prospectus, or any amendment or
supplement thereto, reviewed by the Sub-Adviser, in either case of any untrue
statement of a material fact or of any omission of any statement of a material
fact which is required to be stated therein or is necessary to make the
statements contained therein not misleading; and
(v) If the Sub-Adviser is a partnership, the Sub-Adviser shall notify the Fund
and Manager of any change in
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membership within a reasonable time after such change.
SECTION 11. EXCLUSIVITY OF SERVICES AND USE OF NAMES.
The Sub-Adviser acknowledges that a fundamental marketing feature of the
variable annuity contracts and certificates offered through Integrity Life
Insurance Company (INTEGRITY)and National Integrity Life Insurance Company
(NATIONAL INTEGRITY), a wholly-owned subsidiary of Integrity, under which
contributions may be allocated to separate accounts of Integrity and National
Integrity for the purchase of shares of the Portfolio is the fact that the
Sub-Adviser provides investment advisory services to the Portfolio. In
recognition thereof and of the costs incurred by the Fund and Manager in
establishing the Portfolio and registering the Fund as an investment company,
the Sub-Adviser agrees that from the date of this Agreement until the earlier
of (i) six months after the date Integrity and National Integrity begin
offering to the public variable annuity contracts and certificates funded in
whole or in part by the Portfolio or (ii) May 31, 1993, the Sub-Adviser and
the Sub-Adviser's affiliates shall not provide investment advisory services
to any registered investment company or portfolio thereof which has
investment objectives and policies substantially similar to those of the
Portfolio and which serves as a funding vehicle for any variable annuity
product (excluding advisory arrangements in existence on the date of this
Agreement) without the prior written approval of the Fund, Integrity and
National Integrity. The Sub-Adviser acknowledges that a breach of this
provision may irreparably harm the Fund, Integrity or National Integrity. In
the event of a breach of this provision, the Fund, Integrity or National
Integrity shall be entitled to injunctive relief, to enforcement by specific
performance of this Agreement, and to actual and punitive damages.
The Sub-Adviser further acknowledges and agrees that the names THE LEGENDS
FUND and PINNACLE, and abbreviations or logos associated with those names,
are the valuable property of Manager and its affiliates; that the Fund,
Manager and its affiliates have the right to use such names, abbreviations
and logos; and that the Sub-Adviser shall use the names THE LEGENDS FUND and
PINNACLE, and associated abbreviations and logos, only in connection with the
Sub-Adviser's performance of its duties hereunder.
Manager acknowledges that "Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxx" (the
SUB-ADVISER'S NAME) is distinctive in connection with investment advisory and
related services provided by the Sub-Adviser, the Sub-Adviser's name is a
property right of the Sub-Adviser, and the Sub-Adviser's name in the name of
the Portfolio is understood to be used by the Fund with the Sub-Adviser's
consent. The Sub-Adviser hereby grants to the Fund a non-exclusive license to
use the Sub-Adviser's name in the name of the Portfolio upon the conditions
hereinafter set forth; provided that the Fund may use such name only so long
as the Sub-Adviser shall be retained as the investment sub-adviser of the
Portfolio pursuant to the terms of this Agreement. Any such use by the Fund
shall in no way prevent the Sub-Adviser or any of its successors or assigns
from using or permitting the use of the Sub-Adviser's name along with any
other word or words, for, by or in connection with any other entity or
business, other than the Fund or its business, whether or not the same
directly competes or conflicts with the Fund or its business in any manner,
except for the six month period as described in the first paragraph of this
Section.
Manager acknowledges that the Fund shall use the Sub-Adviser's name in the
Portfolio for the period set forth herein in a manner not inconsistent with the
interests of the Sub-Adviser and that the Fund's rights in the Sub-Adviser's
name are limited to its use as a component of the Portfolio's name and in
connection with accurately describing the activities of the Portfolio. In the
event that the Sub-Adviser shall cease to be the
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investment sub-adviser of the Portfolio, then Fund at its own expense, upon the
Sub-Adviser's written request:
(i) shall cease to use the Sub-Adviser's name, or any combination thereof as
part of the Portfolio's name or for any other commercial purpose (other than
the right to refer to the Portfolio's former name in the Fund's Registration
Statement, proxy materials and other Fund documents to the extent required
under the 1940 Act);
(ii) shall on all letterheads and other materials designed to be read or used by
salesmen, distributors or investors, state in a prominent position and prominent
type that the Sub-Adviser has ceased to be the investment sub-adviser of the
Portfolio; and
(ii) shall use its best efforts to cause the Fund's officers and directors to
take any all actions which may be necessary or desirable to effect the foregoing
and to reconvey to the Sub-Adviser all rights which the Fund may have to such
name. Manager agrees to take any all actions as may be necessary or desirable to
effect the foregoing.
The Sub-Adviser hereby agrees and consents to the use of the Sub-Adviser's name
upon the foregoing terms and conditions.
SECTION 12. ENTIRE AGREEMENT; AMENDMENT, WAIVER.
This Agreement supersedes all prior agreements between the parties and
constitutes the entire agreement by the parties. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which enforcement of
the change, waiver, discharge or termination is sought, and no amendment of
this Agreement shall be effective with respect to the Portfolio until
approved as required by the 1940 Act.
SECTION 13. EFFECTIVENESS AND DURATION OF AGREEMENT.
Unless sooner terminated, this Agreement shall continue in effect for two years
and thereafter for successive one year periods, provided that continuation of
this Agreement and the terms thereof are specifically approved annually in
accordance with the requirements of the 1940 Act by a majority of the Directors
of the Fund, including a majority of the Directors who are not interested
persons of the Sub-Adviser, Manager or the Fund, cast in person at a meeting
called for the purpose of voting on such approval.
SECTION 14. TERMINATION OF AGREEMENT, ASSIGNMENT.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Sub-Adviser or by Manager, upon sixty (60) days' written notice
from the terminating party to the other party and to the Fund, or by the Fund,
upon sixty (60) days written notice to the Sub-Adviser and Manager, acting
pursuant to a resolution adopted by a majority of the members of the Board of
Directors who are not interested persons or by a vote of the holders of the
lesser of (1) 67% of the Portfolio's voting shares present if the holders of
more than 50% of the outstanding shares are present in person or by proxy, or
(2) more than 50% of the outstanding shares of the Portfolio.
This Agreement shall automatically terminate in the event of its assignment or
the termination of the
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Management Agreement pertaining to the Portfolio. Termination of this Agreement
shall not affect rights of the parties which have accrued prior thereto.
The provisions of paragraphs 6, 7, 8, 9 and 11 shall survive the termination of
this Agreement, except that if Manager or the Fund terminates the Agreement, the
first paragraph of Section 11 shall not survive termination.
SECTION 15. DEFINITIONS.
The terms ASSIGNMENT and INTERESTED PERSON when used in this Agreement shall
have the meanings given such terms in the 1940 Act and the rules and regulations
thereunder.
SECTION 16. CONCERNING APPLICABLE PROVISIONS OF LAW.
This Agreement shall be subject to all applicable provisions of law, including,
without limitation, the applicable provisions of the 1940 Act, and to the extent
that any provisions herein contained conflict with any such applicable
provisions of law, the latter shall control. This Agreement shall be governed
by the laws of the State of New York, without reference to principles of
conflicts of law.
SECTION 17. COUNTERPARTS.
This Agreement may be executed in counterparts, and each counterpart shall for
all purposes be deemed an original and all such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, authorized officers of Manager and the Sub-Adviser have
executed this Agreement as of the day and year first written above.
INTEGRITY CAPITAL ADVISORS, INC.
By: /s/ Xxxxx Xxxxxx
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Attest: /s/ Xxx X. Xxxxxxxx
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XXXXXX XXXXXXX XXXXXXXX & XXXXX L.L.C.
By: /s/ Xxxxx Xxxxx
-------------------------------
Attest: /s/ Xxxxxx X. Xxxxxxxxxx
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