FORM OF
INVESTMENT SUB-ADVISORY AGREEMENT
BETWEEN
X. X. XXXXXX INVESTMENT MANAGEMENT INC.
AND
XXXXXXX PARTNER, LLC
INVESTMENT SUBADVISORY AGREEMENT, effective as of the 21st day of January 2003,
between X.X. Xxxxxx Investment Management Inc. (the "Adviser"), a corporation
organized and existing under the laws of the State of Delaware, and XXXXXXX
PARTNER, LLC ("Subadviser"), a limited liability company organized and existing
under the laws of the State of Georgia.
WHEREAS, the Adviser has entered into an Investment Advisory Agreement dated as
of the 21st day of January 2003 ("Advisory Agreement") with X.X. Xxxxxx Xxxxxxx
Series Trust, a Massachusetts business trust (the "Trust"), which is engaged in
business as an open-end management investment company registered under the
Investment Company Act of 1940 ("1940 Act"); and
WHEREAS, the Trust is and will continue to be a series fund having two or more
investment portfolios, each with its own assets, investment objectives, policies
and restrictions (each a "Fund"); and
WHEREAS, the Subadviser is engaged principally in the business of rendering
investment advisory services and is registered as an investment adviser under
the Investment Advisers Act of 1940 ("Advisers Act"); and
WHEREAS, the Adviser desires to retain the Subadviser to assist it in the
provision of a continuous investment program for that portion of the assets of
the Fund listed on Appendix A which the Adviser may from time to time assign to
the Subadviser (the "Subadviser Assets") and the Subadviser is willing to
furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual promises herein set
forth, the parties hereto agree as follows:
1. APPOINTMENT. Adviser hereby retains the Subadviser to act as investment
adviser for and to manage the Subadviser Assets for the period and on the terms
set forth in this Agreement. The Subadviser accepts such employment and agrees
to render the services herein set forth, for the compensation herein provided.
2. DUTIES OF THE SUBADVISER
A. INVESTMENT SUBADVISORY SERVICES. Subject to the supervision of the
Trust's Board of Trustees (the "Board") and the Adviser, the Subadviser
shall (a) manage the investments of the Subadviser Assets in accordance
with the Fund's investment objective, policies, and restrictions as
provided in the Trust's Prospectus and Statement of Additional Information,
as currently in effect and as amended or supplemented from time to time
(hereinafter referred to as the "Prospectus"), and in compliance with the
requirements applicable to registered investment companies under applicable
laws and those requirements applicable to regulated investment companies
under Subchapter M of the Internal Revenue Code of 1986, as amended
("Code") and such other limitations as the Adviser may institute. The
Subadviser shall (a) make investment decisions for the Subadviser Assets;
(b) place purchase and sale orders for portfolio transactions for the
Subadviser Assets; and (c) employ professional portfolio managers and
securities analysts to provide research services to the Subadviser Assets.
In providing these services, the Sub-Adviser will conduct a continual
program of investment, evaluation and, if appropriate, sale and
reinvestment of the Subadviser Assets.
B. SUBADVISER UNDERTAKINGS. In all matters relating to the performance
of this Agreement,
the Subadviser shall act in conformity with the Trust's Articles of
Incorporation, By-Laws, and Prospectus and with the written instructions
and directions of the Board and the Adviser. The Subadviser hereby agrees
to:
(i) regularly report to the Board and the Adviser (in such form
and frequency as the Adviser and Subadviser mutually agree)
with respect to the implementation of the investment
program, compliance of the Subadviser Assets with the
Prospectus, the 1940 Act and the Code, and on other topics
as may reasonably be requested by the Board or the Adviser,
including attendance at Board meetings, as reasonably
requested, to present such reports to the Board;
(ii) consult with the Trust's pricing agent regarding the
valuation of securities that are not registered for public
sale, not traded on any securities markets, or otherwise may
be deemed illiquid for purposes of the 1940 Act and for
which market quotations are not readily available;
(iii) Provide, subject to any obligations or undertakings
reasonably necessary to maintain the confidentiality of the
Subadviser's non-public information, any and all
information, records and supporting documentation about the
composite of accounts and the funds the Subadviser manages
that have investment objectives, policies, and strategies
substantially similar to those employed by the Subadviser in
managing the Subadviser Assets which may be reasonably
necessary, under applicable laws, to allow the Trust or its
agent to present historical performance information
concerning the Subadviser's similarly managed accounts and
funds, for inclusion in the Trust's Prospectus and any other
reports and materials prepared by the Trust or its agent, in
accordance with regulatory requirements or as requested by
applicable federal or state regulatory authorities.
C. EXPENSES. The Subadviser will bear all of its expenses in connection
with the performance of its services under this Agreement. All other
expenses to be
incurred in the operation of the Fund will be borne by the Trust,
except to the extent specifically assumed by the Subadviser. The
expenses to be borne by the Trust include, without limitation, the
following: organizational costs, taxes, interest, brokerage fees and
commissions, Trustees' fees, Securities and Exchange Commission fees
and state Blue Sky qualification fees, advisory fees, charges of
custodians, transfer and dividend disbursing agents' fees, certain
insurance premiums, industry association fees, outside auditing and
legal expenses, costs of independent pricing services, costs of
maintaining existence, costs attributable to investor services
(including, without limitation, telephone and personnel expenses),
costs of preparing and printing prospectuses and statements of
additional information for regulatory purposes and for distribution to
existing stockholders, costs of stockholders' reports and meetings, and
any extraordinary expenses.
D. BROKERAGE. The Subadviser will select brokers and dealers to effect
all orders for the purchase and sale of Subadviser Assets. In selecting
brokers or dealers to execute transactions on behalf of the Subadviser
Assets of the Fund, the Subadviser will seek the best overall terms
available. In assessing the best overall terms available for any
transaction, the Subadviser will consider factors it deems relevant,
including, without limitation, 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, for the specific transaction and on a
continuing basis. In selecting brokers or dealers to execute a
particular transaction, and in evaluating the best overall terms
available, the Subadviser is authorized to consider the brokerage and
research services (within the meaning of Section 28(e) of the
Securities Exchange Act of 1934, as amended) provided to the Fund
and/or other accounts over which the Subadviser exercises investment
discretion. Until permitted by rule or order of the SEC, Subadviser
will not engage in principal transactions with any affiliate of the
Adviser or of any other subadviser to the Fund, and will engage in
agency transactions with such affiliates only in accordance with all
applicable rules and
regulations. Subadviser will provide a list of its affiliates to
Adviser, as such may be amended from time to time. Adviser will provide
to Subadviser a list of affiliated brokers and dealers of the Adviser
and of each other subadviser to the Fund.
E. AGGREGATION OF ORDERS. On occasions when the Subadviser deems the
purchase or sale of a security to be in the best interest of the
Subadviser Assets as well as other clients of the Subadviser, the
Subadviser to the extent permitted by applicable laws and regulations,
may, but shall be under no obligation to, aggregate the orders for
securities to be purchased or sold. 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 Subadviser in the manner the
Subadviser considers to be the most equitable and consistent with its
fiduciary obligations to the Fund and to its other clients. The Adviser
recognizes that, in some cases, the Subadviser's allocation procedure
may limit the size of the position that may be acquired or sold for the
Subadviser Assets.
F. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Subadviser hereby agrees that all records which
it maintains for the Subadviser Assets of the Fund are the property of
the Trust and further agrees to surrender promptly to the Trust copies
of any of such records upon the Fund's or the Adviser's request,
provided, however, that Subadviser may retain copies of any records to
the extent required for it to comply with applicable laws. The
Subadviser further agrees to preserve for the periods prescribed by
Rule 31a-2 under the 1940 Act the records relating to its activities
hereunder required to be maintained by Rule 31a-1 under the 1940 Act
and to preserve the records relating to its activities hereunder
required by Rule 204-2 under the Advisers Act for the period specified
in said Rule. Notwithstanding the foregoing, Subadviser has no
responsibility for the maintenance of the records of the Fund, except
for those related to the Subadviser Assets.
G. SUBADVISER COMPLIANCE RESPONSIBILITIES. The Subadviser and the
Adviser acknowledge that the Subadviser is not the compliance agent for
the Fund, and does not have access to all of the Trust's books and
records necessary to perform certain compliance testing. However, to
the extent that the Subadviser has agreed to perform the services
specified in this Agreement, the Subadviser shall perform compliance
testing with respect to the Subadviser Assets based upon information in
its possession and upon information and written instructions received
from the Adviser or the Trust's Administrator and shall not be held in
breach of this Agreement so long as it performs in accordance with such
information and instructions. Specifically, the Subadviser shall not be
responsible for the Fund being in violation of any applicable law or
regulation or investment policy or restriction applicable to the Fund
as a whole or for the Fund's failure to qualify as a regulated
investment company under the Code if the securities and other holdings
of the Subadviser Assets would not be in such violation or failing to
so qualify if the Subadviser Assets were deemed a separate series of
the Trust or a separate regulated investment company under the Code.
The Adviser or Trust's Administrator shall promptly provide the
Subadviser with copies of the Trust's Articles of Incorporation,
By-Laws, current Prospectus and any written policies or procedures
adopted by the Board applicable to the Fund and any amendments or
revisions thereto. Subadviser shall supply such reports or other
documentation as reasonably requested from time to time by the Adviser
to evidence Subadviser's compliance with such Prospectus, policies or
procedures.
H. PROXY VOTING. The Subadviser shall use its good faith judgment in a
manner which it reasonably believes best serves the interests of the
Fund's shareholders to vote or abstain from voting all proxies
solicited by or with respect to the issuers of securities in the
Subadviser Assets. The Adviser shall cause to be forwarded to
Subadviser all proxy solicitation materials that Adviser receives.
Subadviser shall provide to the Advisor a summary of the votes cast.
I. USE OF NAMES. The Subadviser shall not use the name, logo, insignia,
or other identifying xxxx of the Trust or the Adviser or any of their
affiliates or any derivative or logo or trade or service xxxx thereof,
or disclose information related to the business of the Adviser or any
of its affiliates in material relating to the Subadviser in any manner
not approved prior thereto by the Adviser; provided, however, that the
Adviser shall approve all uses of its or the Trust's name and that of
their affiliates which merely refer in accurate terms to the
appointment of the Subadviser hereunder or which are required by the
SEC or a state securities commission; and provided, further, that in no
event shall such approval be unreasonably withheld. The Adviser shall
not use the name, logo, insignia, or other identifying xxxx of the
Subadviser or any of its affiliates in any prospectus, sales literature
or other material relating to the Trust in any manner not approved
prior thereto by the Subadviser; provided, however, that the Subadviser
shall approve all uses of its name which merely refer in accurate terms
to the appointment of the Subadviser hereunder or which are required by
the SEC or a state securities commission; and provided, further that in
no event shall such approval be unreasonably withheld.
J. OTHER SUBADVISERS. With respect to any Fund, (i) the Subadviser will
not consult with any other subadviser to that Fund (including, in the
case of an offering of securities subject to Section 10(f) of the 1940
Act, any subadviser that is a principal underwriter or an affiliated
person of a principal underwriter of such offering) concerning
transactions for that Fund in securities or other assets, except, in
the case of transactions involving securities of persons engaged in
securities-related businesses, for purposes of complying with the
conditions of paragraphs (a) and (b) of Rule 12d3-1 under the 1940 Act;
and (ii) the Subadviser will provide advice and otherwise perform
services hereunder exclusively with respect to the Subadviser Assets of
that Fund.
3. COMPENSATION OF SUBADVISER. The Adviser will pay the Subadviser, with respect
to each Fund on Appendix A attached hereto the compensation specified in
Appendix A. Such fees will be computed daily and paid monthly, calculated at an
annual rate based on the Subadviser Assets' average daily net assets as
determined by the Trust's accounting agent. Compensation for any partial period
shall be pro-rated based on the length of the period.
4. STANDARD OF CARE. The Subadviser shall exercise its best judgment in
rendering its services described in this Agreement. Except as may otherwise be
required by the 1940 Act or the rules thereunder or other applicable law, the
Subadviser shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund or the Adviser in connection with the matters
to which this Agreement relates, except a loss resulting from Subadviser's
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties hereunder or from reckless disregard by it of its
obligations and duties under this Agreement
5. INDEMNIFICATION.
a. The Adviser agrees to indemnify and hold harmless the Sub-Adviser
from and against any and all claims, losses, liabilities or damages (including
reasonable attorneys' fees and other related expenses) ("Losses"), howsoever
arising, from or in connection with this Agreement or the performance by the
Sub-Adviser of its duties hereunder; provided however that the Adviser will not
indemnify the Subadviser for Losses resulting from the Subadviser's willful
misfeasance, bad faith or gross negligence in the performance of its duties or
from the Subadviser's reckless disregard of its obligations and duties under
this Agreement
b. The Subadviser agrees to indemnify and hold harmless the Adviser
from and against any and all Losses resulting from the Subadviser's willful
misfeasance, bad faith, or gross negligence in the performance of, or from
reckless disregard of, the Subadviser's obligations and duties under this
Agreement; ; provided however that the Subadviser will not indemnify the Adviser
for Losses resulting from the Adviser's willful misfeasance, bad faith or gross
negligence in the performance of its duties or from the Adviser's reckless
disregard of its obligations and duties under this Agreement.
6. NON-EXCLUSIVITY. The services of the Subadviser to the Fund and the Trust are
not to be deemed to be exclusive, and the Subadviser and its affiliates shall be
free to render investment advisory or other services to others (including other
investment companies) and to engage in other activities. It is understood and
agreed that the directors, officers, and employees of the Subadviser are not
prohibited from engaging in any other business activity or from rendering
services to any other person, or from serving as partners, officers, directors,
trustees, or employees of any other firm or corporation, including other
investment companies. Adviser acknowledges that Subadviser or its affiliates may
give advice and take actions in the performance of its duties to clients which
differ from the advice, or the timing and nature of actions taken, with respect
to other clients' accounts or employee accounts which may invest in some of the
same securities recommended to advisory clients. In addition, advice provided by
the Subadviser may differ from advice given by its affiliates.
7. MAINTENANCE OF INSURANCE. During the term of this Agreement and for a period
of one year after the termination hereof, Subadviser will maintain comprehensive
general liability coverage and will carry a fidelity bond covering it and each
of its employees and authorized agents with limits of not less than those
considered commercially reasonable and appropriate under current industry
practices.
8. CONFIDENTIALITY. Each party to this Agreement shall keep confidential any
nonpublic information concerning the other party and will not use or disclose
such information for any purpose other than the performance of its
responsibilities and duties hereunder, unless the non-disclosing party has
authorized such disclosure or if such disclosure is expressly required or
requested by applicable federal or state regulatory authorities. Nonpublic
information shall not include information a party to this Agreement can clearly
establish was (a) known to the party prior to this Agreement; (b) rightfully
acquired by the party from third parties whom the party reasonably believes are
not under an obligation of confidentiality to the other party to this Agreement;
(c) placed in public domain without fault of the party or its affiliates; or (d)
independently developed by the party without reference or reliance upon the
nonpublic information.
9. TERM OF AGREEMENT. This Agreement shall become effective as of the date of
its execution and shall continue in effect for a period of two years from the
date of execution. Thereafter, this Agreement shall continue automatically for
successive annual periods, provided such continuance is specifically approved at
least annually by (i) the Board or (ii) a vote of a "majority" (as defined in
the 0000 Xxx) of the Fund's outstanding voting securities, provided that in
either event the continuance also is approved by a majority of the Board who are
not "interested persons" (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable, without penalty, on 60 days'
written notice, by the Adviser, by the Board, by vote of holders of a majority
of the Fund's shares or by the Subadviser, and will terminate five business days
after the Subadviser receives written notice of the termination of the Advisory
Agreement between the Trust and the Adviser. This Agreement also will terminate
automatically in the event of its assignment (as defined in the 1940 Act).
10. REPRESENTATIONS OF SUBADVISER. The Subadviser represents, warrants, and
agrees as follows:
A. The Subadviser: (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or
the Advisers Act from performing the services contemplated by this
Agreement; (iii) has met, and will continue to meet for so long as this
Agreement remains in effect, any other applicable federal or state
requirements, or the applicable requirements of any regulatory or
industry self-regulatory organization, necessary to be met in order to
perform the services contemplated by this Agreement; (iv) has the
authority to enter into and perform the services contemplated by this
Agreement; and (v) will promptly notify the Adviser of the occurrence
of any event that would disqualify the Subadviser from serving as an
investment adviser of an investment company pursuant to Section 9(a) of
the 1940 Act or otherwise.
B. The Subadviser has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and, if it has not
already done so, will provide the
Adviser and the Trust with a copy of such code of ethics. On at least
an annual basis, the Subadviser will comply with the reporting
requirements of Rule 17j-1, which may include (i) certifying to the
Adviser that the Subadviser and its Access Persons have complied with
the Subadviser's Code of Ethics with respect to the Subadviser Assets
and (ii) identifying any material violations which have occurred with
respect to the Subadviser Assets.
C. The Subadviser has provided the Adviser and the Trust with a copy of
its Form ADV as most recently filed with the SEC and hereafter will
furnish a copy of its annual amendment to the Adviser. The Adviser
acknowledges receipt of the Subadviser's Form ADV more than 48 hours
prior to the execution of this Agreement.
11. PROVISION OF CERTAIN INFORMATION BY SUBADVISER. The Subadviser will promptly
notify the Adviser (1) in the event the SEC or other governmental authority has
censured the Subadviser; placed limitations upon its activities, functions or
operations; suspended or revoked its registration, if any, as an investment
adviser; or has commenced proceedings or an investigation that may result in any
of these actions or (2) upon having a reasonable basis for believing that the
Fund has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Code. The Subadviser further agrees to notify
the Adviser promptly of any material fact known to the Subadviser respecting or
relating to the Subadviser that is not contained in the Prospectus, and is
required to be stated therein or necessary to make the statements therein not
misleading, or of any statement contained therein that becomes untrue in any
material respect. As reasonably requested by the Adviser or the Fund and in
accordance with the scope of Subadviser's obligations and responsibilities
contained in this Agreement, Subadviser will cooperate to provide assistance to
Adviser or the Fund in connection with Adviser's or Fund's compliance with the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated by the SEC
thereunder.
12. PROVISION OF CERTAIN INFORMATION BY THE ADVISER. The Adviser will promptly
notify the Subadviser (1) in the event that the SEC has censured the Adviser or
the Trust; placed limitations upon either of their activities, functions, or
operations; suspended or
revoked the Adviser's registration as an investment adviser; or has commenced
proceedings or an investigation that may result in any of these actions and (2)
upon having a reasonable basis for believing that the Fund has ceased to qualify
or might not qualify as a regulated investment company under Subchapter M of the
Code.
13. AMENDMENT OF AGREEMENT. No provision of this Agreement may be changed,
waived, discharged, or terminated orally, but only by an instrument in writing
signed by both parties.
14. MISCELLANEOUS.
A. GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof, and with the 1940 Act. To the
extent that the applicable laws of the State of New York conflict with
the applicable provisions of the 1940 Act, the latter shall control.
B. CAPTIONS. The Captions contained in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
C. ENTIRE AGREEMENT. This Agreement represents the entire agreement and
understanding of the parties hereto and shall supersede any prior
agreements between the parties relating to the subject matter hereof.
D. DEFINITIONS. Any question of interpretation of any term or provision
of this Agreement having a counterpart in or otherwise derived from a
term or provision of the 1940 Act shall be resolved by reference to
such term or provision of the 1940 Act and to interpretations thereof,
if any, by the United States courts or, in the absence of any
controlling decision of any such court, by rules, releases or orders of
the SEC validly issued pursuant to the Act. As used in this Agreement,
the terms "majority of the outstanding voting securities," "affiliated
person," "interested person," "assignment," "broker," "investment
adviser," "net assets," "sale," "sell," and "security" shall have the
same meaning as such terms have in the
1940 Act, subject to such exemptions as may be granted by the SEC by
any rule, release or order. Where the effect of a requirement of the
federal securities laws reflected in any provision of this Agreement is
made less restrictive by a rule, release, or order of the SEC, whether
of special or general application, such provision shall be deemed to
incorporate the effect of such rule, release, or order.
E. NOTICES. Any notice herein required is to be in writing and is
deemed to have been given to Subadviser or Adviser upon receipt of the
same at their respective addresses set forth below. All written notices
required or permitted to be given under this Agreement will be
delivered by personal service, by postage mail return receipt requested
or by facsimile machine or similar means of delivery that provide
evidence of receipt. All notices to Adviser shall be sent to: X.X.
Xxxxxx Investment Management, Inc. 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx Xxxxxxxx.
All notices to Subadviser shall be sent to: XXX XXXXXX, Chief Admin.
And Compliance Officer, XXXXXXX Partners, 00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized signatories as of the date and
year first above written.
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
Attest: By:
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(Title)
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Date:
XXXXXXX PARTNERS, LLC
Attest: By:
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(Title)
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Date:
APPENDIX A
FEE SCHEDULE
For the services provided by Subadviser to the Subadviser Assets, pursuant to
the attached Investment Sub-Advisory Agreement, the Adviser will pay the
Subadviser a fee, computed daily and payable monthly, based on the average daily
net assets of the Subadvisory Assets at the following annual rates of the
average daily net assets of the Subadviser Assets as determined by the Trust's
accounting agent:
FUND RATE
JPMorgan Multi-Manager Small Cap Value Fund 0.55%