INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT made as of this 7th day of May, 2003, by and among Pilgrim
Xxxxxx & Associates, Ltd. (the "Adviser"), Xxxxxxxx, Xxxxxx & Xxxxxxxx, Inc.
(the "Sub-Adviser"), and PBHG Funds, a Delaware business trust (the "Trust").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, pursuant to the Investment Advisory Agreement dated July 11,
2001 and Schedule A dated May 7, 2003 (as such Schedule may be amended from time
to time to add or delete new portfolios) between the Adviser and the Trust, the
Adviser will act as investment adviser to PBHG Small Cap Value Fund (the
"Portfolio"); and
WHEREAS, the Adviser and the Trust each desire to retain the
Sub-Adviser to provide investment advisory services to the Trust in connection
with the management of the Portfolio, and the Sub-Adviser is willing to render
such investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) Subject to supervision by the Adviser and the Trust's Board of Trustees,
the Sub-Adviser shall manage the investment operations of the Portfolio and the
composition of the Portfolio's investment portfolios, including the purchase,
retention and disposition thereof, in accordance with the Portfolio's investment
objectives, policies and restrictions as stated in such Portfolio's Prospectus
(such Prospectus and Statement of Additional Information as currently in effect
and as amended or supplemented from time to time, being herein called the
"Prospectus"), and subject to the following understandings:
(1) The Sub-Adviser shall provide supervision of the Portfolio's
investments and determine from time to time what investments and securities will
be purchased, retained or sold by the Portfolio, and what portion of the assets
will be invested or held uninvested in cash.
(2) In the performance of its duties and obligations under this
Agreement, the Sub-Adviser shall act in conformity with the Trust's Agreement
and Declaration of Trust and the Prospectus and with the instructions and
directions of the Adviser and of the Board of Trustees and will conform and
comply with the requirements of the 1940 Act, the Internal Revenue Code of 1986,
as amended, and all other applicable federal and state laws and regulations, as
each is amended from time to time.
(3) The Sub-Adviser shall determine the securities to be purchased
or sold by the Portfolio and will place orders with or through such persons,
brokers or dealers to carry out the policy with respect to brokerage set forth
in such Portfolio's Registration Statement (as defined herein) and Prospectus or
as the Board of Trustees or the Adviser may direct from time to time, in
conformity with federal securities laws. In providing the Portfolio with
investment supervision, the Sub-Adviser will give primary consideration to
securing the most favorable price and efficient execution. Within the framework
of this policy, the Sub-Adviser may consider the financial responsibility,
research and investment information and other services provided by brokers or
dealers who may effect or be a party to any such transaction or other
transactions to which the Sub-Adviser's other clients may be a party. It is
understood that it is desirable for the Portfolio that the Sub-Advisor have
access to supplemental investment and market research and security and economic
analysis provided by brokers who may execute brokerage transactions at a higher
cost to the Portfolio than may result when allocating brokerage to other brokers
on the basis of seeking the most favorable price and efficient execution.
Therefore, the Sub-Adviser is authorized to place orders for the purchase and
sale of securities for the Portfolio with brokers, subject to review by the
Trust's Board of Trustees from time to time with respect to the extent and
continuation of this practice. It is understood that the services provided by
such brokers may be useful to the Sub-Adviser in connection with the
Sub-Adviser's services to other clients.
On occasions when the Sub-Adviser deems the purchase or sale of
a security to be in the best interest of a Portfolio as well as other clients of
the Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be so purchased or sold in order to obtain the most favorable price or lower
brokerage commissions and efficient 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 in the manner it considers to be
the most equitable and consistent with its fiduciary obligations to the
Portfolio in question and to such other clients.
(4) The Sub-Adviser shall maintain all books and records with
respect to the Portfolio's portfolio transactions required by subparagraphs
(b)(5), (6), (7), (9), (10) and (11) and paragraph (f) of Rule 31a-1 under the
1940 Act and shall render to the Trust's Board of Trustees such periodic and
special reports as the Trust's Board of Trustees may reasonably request.
(b) The Sub-Adviser shall provide the Portfolio's Custodian on each business day
with information relating to all transactions concerning the Portfolio's assets
and shall provide the Adviser with such information upon request of the Adviser.
(c) The investment management services provided by the Sub-Adviser under this
Agreement are not to be deemed exclusive and the Sub-Adviser shall be free to
render similar services to others, as long as such services do not impair the
services rendered to the Adviser or the Trust.
(d) Services to be furnished by the Sub-Adviser under this Agreement may be
furnished through the medium of any of the Sub-Adviser's officers or employees.
It is understood that the Sub-Adviser may obtain certain administrative
services, including, without limitation, services relating to trade
reconciliation and the production of client reports, from its parent company or
affiliated company in carrying out its obligations under this Agreement.
(e) The Sub-Adviser shall keep the Portfolio's books and records required to be
maintained by the Sub-Adviser pursuant to paragraph 1(a) of this Agreement and
shall timely furnish to the Adviser all information relating to the
Sub-Adviser's services under this Agreement needed by the Adviser to keep the
other books and records of the Portfolios required by Rule 31a-1 under the 1940
Act. The Sub-Adviser agrees that all records that it maintains on behalf of the
Portfolio are property of the Portfolio and the Sub-Adviser will surrender
promptly to a Portfolio any of such records upon the Portfolio's request;
provided, however, that the Sub-Adviser may 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 any such records as are required to be maintained by it
pursuant to paragraph 1(a) of this Agreement.
(f) The Sub-Adviser shall comply with the Trust's proxy voting guidelines and
procedures as provided to the Sub-Adviser by the Adviser and shall comply with
the requirements of Rule 206(4)-6 of the Investment Advisers Act of 1940 and
provide the Adviser with such information concerning its proxy voting on behalf
of the Fund as the Adviser or the Trust may request.
2. The Adviser shall continue to have responsibility for all services to be
provided to the Portfolio pursuant to the Advisory Agreement and shall oversee
and review the Sub-Adviser's performance of its duties under this Agreement.
3. The Adviser has delivered to the Sub-Adviser copies of each of the following
documents and will deliver to it all future amendments and supplements, if any:
(a) Agreement and Declaration of Trust, as filed with the Secretary
of State of Delaware (such Agreement and Declaration of Trust as in effect on
the date of this Agreement, and as amended from time to time, are herein called
the "Agreement and Declaration of Trust");
(b) By-Laws of the Trust (such By-Laws, as in effect on the date of
this Agreement, and as amended from time to time, are herein called the
"By-Laws");
(c) Certified resolutions of the Trust's Board of Trustees
authorizing the appointment of the Sub-Adviser and approving the form of this
Agreement;
(d) Registration Statement under the 1940 Act and the Securities Act
of 1933, as amended, on Form N-1A (the "Registration Statement"), as filed with
the Securities and Exchange Commission (the "Commission") relating to the
Portfolio and shares of the Portfolio's beneficial shares, and all amendments
thereto;
(e) Notification of Registration of the Portfolio under the 1940 Act
on Form N-8A as filed with the Commission, and all amendments thereto; and
(f) Prospectus of the Portfolio.
4. For the services to be provided by the Sub-Adviser pursuant to this Agreement
for the Portfolio, the Adviser will pay to the Sub-Adviser as full compensation
therefore: (a) until December 31, 2003 a fee at an annual rate of 1.00% of the
assets transferred over to the Portfolio as a result of the reorganization of
the TS&W Small Cap Value Fund LLC into the Portfolio (so called "Legacy Assets")
and a fee of 0.50% on non-Legacy Assets (in each instance net of any waivers,
reimbursement payments, supermarket fees and alliance fees waived, reimbursed or
paid by the Adviser in respect of the Portfolio); and (b) beginning on January
1, 2004 and thereafter, a fee at an annual rate of 0.50% of the Portfolio's
average net assets (net of 50% of any waivers, reimbursement payments,
supermarket fees and alliance fees. waived, reimbursed or paid by the Adviser in
respect of the Portfolio). This fee will be paid to the Sub-Adviser from the
Adviser's advisory fee received from the Portfolio.
5. The Sub-Adviser shall not be liable for any error of judgment or for any loss
suffered by the Portfolio or the Adviser in connection with performance of its
obligations under this Agreement, except a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the 1940 Act), or a loss resulting from willful
misfeasance, bad faith or gross negligence on the Sub-Adviser's part in the
performance of its duties or from reckless disregard of its obligations and
duties under this Agreement, except as may otherwise be provided under
provisions of applicable state law which cannot be waived or modified hereby.
6. This Agreement shall continue in effect for a period of more than two years
from the date hereof only so long as continuance is specifically approved at
least annually in conformance with the 1940 Act provided, however, that this
Agreement may be terminated (a) by the Portfolio at any time, without the
payment of any penalty, by the vote of a majority of Trustees of the Trust or by
the vote of a majority of the outstanding voting securities of the Portfolio,
(b) by the Adviser at any time, without the payment of any penalty, on not more
than 60 days' nor less than 30 days' written notice to the other parties, or (c)
by the Sub-Adviser at any time, without the payment of any penalty, on 90 days'
written notice to the other parties. This Agreement shall terminate
automatically and immediately in the event of its assignment. As used in this
Section 6, the terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the respective meanings set forth in the 1940 Act
and the rules and regulations thereunder, subject to such exceptions as may be
granted by the Commission under the 1940 Act.
7. Nothing in this Agreement shall limit or restrict the right of any of the
Sub-Adviser's directors, officers, or employees to engage in any other business
or to devote his or her time and attention in part to the management or other
aspects of any business, whether of a similar or dissimilar nature, nor limit or
restrict the Sub-Adviser's right to engage in any other business or to render
services of any kind to any other corporation, firm, individual or association.
8. During the term of this Agreement, the Adviser agrees to furnish the
Sub-Adviser at its principal office all prospectuses, proxy statements, reports
to shareholders, sales literature or other materials prepared for distribution
to shareholders of the Portfolio, the Trust or the public that refers to the
Sub-Adviser or its clients in any way prior to use thereof and not to use
material if the Sub-Adviser reasonably objects in writing within five business
days (or such other period as may be mutually agreed upon) after receipt
thereof. The Sub-Adviser's right to object to such materials is limited to the
portions of such materials that expressly relate to the Sub-Adviser, its
services and its clients. The Adviser agrees to use its reasonable best efforts
to ensure that materials prepared by its employees or agents or its affiliates
that refer to the Sub-Adviser or its clients in any way are consistent with
those materials previously approved by the Sub-Adviser as referenced in the
first sentence of this paragraph. Sales literature may be furnished to the
Sub-Adviser by first-class or overnight mail, facsimile transmission equipment
or hand delivery.
9. No Trustee or Shareholder of the Trust shall be personally liable for any
debts, liabilities, obligations or expenses incurred by, or contracted for under
this Agreement.
10. No provisions 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 until approved by
the vote of the majority of the outstanding voting securities of the Portfolio.
11. This Agreement shall be governed by the laws of the state of Delaware;
provided, however, that nothing herein shall be construed as being inconsistent
with the 1940 Act.
12. This Agreement embodies the entire agreement and understanding among the
parties hereto, and supersedes all prior agreements and understandings relating
to this Agreement's subject matter. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
13. Should any part of this Agreement be held invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
14. Any notice, advice or report to be given pursuant to this Agreement shall be
delivered or mailed:
To the Adviser at:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
To the Sub-Adviser at:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
To the Trust or the Portfolio at:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
15.Where the effect of a requirement of the 1940 Act reflected in any provision
of this Agreement is altered by a rule, regulation or order of the Commission,
whether of special or general application, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first written
above.
PILGRIM XXXXXX & ASSOCIATES, LTD. PBHG FUNDS
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxx X. Xxxxxxxx
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Title: Senior Vice President Title: Chief Financial Officer
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XXXXXXXX, XXXXXX & XXXXXXXX, INC.
By: _/s/ Xxxxxxxx Gibson______________
Title: _ Senior Vice President ___________
