Common use of Appointment and Acceptance; Services to be Rendered by Sub-Adviser Clause in Contracts

Appointment and Acceptance; Services to be Rendered by Sub-Adviser. (a) In accordance with and subject to the Management Agreement between the Trust and the Manager with respect to the Fund (the “Management Agreement”), the Manager hereby appoints the Sub-Adviser to act as Sub-Adviser with respect to the Fund for the period and on the terms set forth in this Agreement. The Sub-Adviser accepts such appointment and shall render the services herein set forth for the compensation herein provided. (b) The Manager shall cause the Sub-Adviser to be kept fully informed at all times with regard to the securities and other financial instruments owned by the Fund, its funds available, or to become available, for investment, and generally as to the condition of the Fund’s affairs. The Manager shall furnish the Sub-Adviser with such other documents and information with regard to the Fund’s affairs as the Sub-Adviser may from time to time reasonably request. (c) Subject always to the supervision of the trustees of the Trust (the “Trustees”) and the Manager, the Sub-Adviser, at its expense, will furnish continuously an investment program for the Fund. In furnishing such investment program, the Sub-Adviser will have full investment discretion with respect to the assets allocated by the Manager to determine what securities and other financial instruments shall be purchased, held, sold or exchanged by the Fund and, subject to the direction provided by the Manager, what portion, if any, of the assets of the Fund shall be held un-invested, and shall, on behalf of the Fund, make changes in the Fund’s investments. In the performance of its duties hereunder, the Sub-Adviser will comply with the provisions of the Second Amended and Restated Agreement and Declaration of Trust and the By-Laws of the Trust, each as amended (together, the “Governing Documents”), and the stated investment objectives, policies and restrictions of the Fund as set forth in the Trust’s then-current Prospectus and Statement of Additional Information relating to the Fund (together, the “Offering Documents”) describing certain information about the Fund, and with other written policies that the Trustees and/or the Manager may from time-to-time determine and of which the Sub-Adviser has received adequate notice. In furnishing an investment program to the Fund and in determining what securities shall be purchased, held, sold or exchanged by the Fund, the Sub-Adviser shall (i) comply in all material respects with all provisions of applicable law governing its duties and responsibilities hereunder, including the 1940 Act, the Investment Advisers Act of 1940, as amended, the Internal Revenue Code of 1986, as amended (the “Code”), as it relates to regulated investment companies, the Ixxxxxx Xxxxxxx and Securities Fraud Enforcement Act of 1988, as amended, and such other laws as may be applicable to the Trust, the Fund, and/or the Sub-Adviser in its capacity as an investment sub-adviser to the Fund; and (ii) manage the Fund’s portfolio so that the Fund will qualify, and continue to qualify, as a regulated investment company under subchapter M of the Code. (d) The Sub-Adviser, at its expense, will (i) furnish all necessary investment and management facilities, including salaries of personnel, required for it to perform its duties hereunder, (ii) keep records relating to the purchase, sale or current status of portfolio securities, (iii) provide clerical personnel and equipment necessary for the efficient rendering of investment advice to the Fund, (iv) upon reasonable notice, review written references to the Sub-Adviser or its methodology, whether in the Offering Documents, sales material or otherwise, (v) furnish to the Trustees and the Manager such reports and records regarding the Fund and the Sub-Adviser as the Trustees or the Manager shall from time to time request, and (vi) make its officers and employees available to the Manager and/or Trustees at such time or times reasonably requested by the Trustees and/or the Manager to review the Fund’s investment performance and investment policies, as well as to discuss and consult with the Trustees and/or the Manager regarding the investment affairs of the Fund. (e) The Sub-Adviser will select those brokers and dealers through which all orders for the purchase and sale of portfolio investments for the Fund’s account will be placed. The Sub-Adviser shall not be responsible for any loss caused by a broker or dealer selected by the Sub-Adviser to effect any order for the Fund provided that such selection was reasonable. In addition, in the selection of such brokers or dealers and the placing of such orders, the Sub-Adviser shall use its best efforts to obtain for the Fund the most favorable price and execution available, except to the extent that it may be permitted to pay higher brokerage commissions for brokerage and research services in accordance with Section 28(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In using its best efforts to obtain for the Fund the most favorable price and execution available, the Sub-Adviser, bearing in mind the Fund’s best interests at all times, shall consider all factors it deems relevant, including price, the size of the transaction, the nature of the market for the security, the amount of the commission, if any, the timing of the transaction taking into account market prices and trends, the reputation, experience and financial stability of the broker or dealer involved and the quality of service rendered by the broker or dealer in other transactions. Subject to Section 28(e) as well as such written policies as the Trustees or the Manager may determine, and of which the Sub-Adviser has received adequate notice, 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 its having caused the Fund to pay a broker or dealer that provides brokerage and research services to the Sub-Adviser and/or the Manager an amount of commission for effecting a portfolio investment transaction in excess of the amount of commission another broker or dealer would have charged for effecting that transaction, provided that the Sub-Adviser determines in good faith that such amount of commission is reasonable in relation to the value of the brokerage and research services provided by such broker or dealer, viewed in terms of either that particular transaction or the Sub-Adviser’s and/or Manager’s overall responsibilities with respect to the Trust and to other clients as to which the Sub-Adviser and/or Manager or persons controlled by or under common control with the Sub-Adviser and/or Manager exercise investment discretion. (f) Subject to paragraph (e) above, the Manager authorizes any entity or person associated with the Sub-Adviser that is a member of a national securities exchange to effect any transaction on the exchange for the account of the Fund which is permitted by Section 11(a) of the Exchange Act and Rule 11a2-2(T) thereunder, and the Fund hereby consents to the retention of compensation for such transactions in accordance with Rule 11a2-2(T)(a)(2)(iv). Notwithstanding the foregoing, the Sub-Adviser will not deal with itself, or with the Trustees or any principal underwriter of the Fund, as principals or agents in making purchases or sales of securities or other property for the account of the Fund, nor will it purchase any securities from an underwriting or selling group in which the Sub-Adviser or its affiliates is participating, or arrange for purchases and sales of securities between the Fund and another account advised by the Sub-Adviser or its affiliates, except in each case as permitted by the 1940 Act and in accordance with such policies and procedures as may be adopted by the Fund from time to time, and the Sub-Adviser will comply with all other provisions of the Governing Documents and the Fund’s then-current Offering Documents relative to the Sub-Adviser and its directors and officers. (g) The assets of the Fund shall be held by the Trust’s custodian in an account which the Trust has directed the custodian to open. The Sub-Adviser shall at no time take custody or physical control of any of the assets of the Fund. The Manager shall cause such custodian to provide the Sub-Adviser with such information and reports concerning the Fund or its assets as the Sub-Adviser may from time to time reasonably request and to accept instructions from the Sub-Adviser with respect to such assets and transactions by the Fund in the performance of the Sub-Adviser’s duties hereunder. The Sub-Adviser shall have no liability or obligation to pay the cost of such custodian or any of its services. (h) The Sub-Adviser shall hold in confidence (i) all advice or other information provided pursuant to this Agreement by the Sub-Adviser to the Trust, the Fund, the Trustees and/or the Manager and (ii) information received by the Sub-Adviser from the Manager pursuant to this Agreement, except to the extent necessary to comply with the federal and state securities laws and, if practical and on the advice of counsel to the Manager, after notice to the Sub-Adviser, upon order of any court or administrative agency or self-regulatory organization of which the Manager or its affiliates are members. The Manager shall, and shall cause the Trust to, hold in confidence all advice or other information provided pursuant to this Agreement by the Sub-Adviser to the Trust, the Fund, the Trustees and/or the Manager, except to the extent necessary to comply with the federal and state securities laws and, if practical and on the advice of counsel to the Sub-Adviser, after notice to the Manager, upon order of any court or administrative agency or self-regulatory organization of which the Sub-Adviser or its affiliates are members. (i) Nothing in this Agreement shall obligate the Sub-Adviser to (i) pay any expenses of or for the Fund other than as expressly provided in this Section 1, (ii) determine the Fund’s net asset value or the purchase or sale price of any Fund share, other than to provide reasonable assistance to the Trustees of the Trust or their delegate concerning the values of specific assets and liabilities of the Fund as well as information as to the securities and other financial instruments held in the Fund’s portfolio, (iii) provide shareholder accounting services to the Trust or with respect to the Fund, or (iv) advise the Manager or take any action on behalf of the Manager in any legal proceedings, including bankruptcies or class actions, involving assets held or formerly held by the Fund or the issuers of those securities.