XXXX XXXXXXX INVESTMENT TRUST III Xxxx Xxxxxxx International Fund Interim
Sub-Investment Management Contract Dated December 14, 2000 XXXX XXXXXXX
ADVISERS, INC. 000 Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 XXXX XXXXXXX
INVESTMENT TRUST III - Xxxx Xxxxxxx International Fund 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 XXXXXXXX-XXXXXXXXX CAPITAL MANAGEMENT 000 Xxxx
Xxxxxxxx Xxx Xxxxx, Xxxxxxxxxx 00000 Interim Sub-Investment Management Contract
Ladies and Gentlemen: Xxxx Xxxxxxx Investment Trust III (the "Trust") has been
organized as a business trust under the laws of The Commonwealth of
Massachusetts to engage in the business of an investment company. The Trust's
shares of beneficial interest may be classified into series, each series
representing the entire undivided interest in a separate portfolio of assets.
Series may be established or terminated from time to time by action of the Board
of Trustees of the Trust. As of the date hereof, the Trust has four series of
shares, representing interests in Xxxx Xxxxxxx Global Xxxx, Xxxx Xxxxxxx Large
Cap Growth Xxxx, Xxxx Xxxxxxx International Fund, and Xxxx Xxxxxxx Mid Cap
Growth Fund. The Board of Trustees of the Trust (the "Trustees") has selected
Xxxx Xxxxxxx Advisers, Inc. (the "Adviser") to provide overall investment advice
and management for the Xxxx Xxxxxxx International Fund (the "Fund"), and to
provide certain other services, under the terms and conditions provided in the
Investment Management Contract, dated July 1, 1996, between the Trust, the Fund
and the Adviser (the "Investment Management Contract"). The Adviser and the
Trustees have selected Xxxxxxxx-Xxxxxxxxx Capital Management (the "Sub-Adviser")
to provide the Adviser and the Fund with the advice and services set forth
below, and the Sub-Adviser is willing to provide such advice and services,
subject to the review of the Trustees and overall supervision of the Adviser,
under the terms and conditions hereinafter set forth. The Sub-Adviser hereby
represents and warrants that it is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended. Accordingly, the Trust, on behalf
of the Fund, and the Adviser agree with the Sub- Adviser as follows: 1. Delivery
of Documents. The Trust has furnished the Sub-Adviser with copies, properly
certified or otherwise authenticated, of each of the following: (a) Amended and
Restated Declaration of Trust of the Trust, dated July 1, 1996, as amended from
time to time (the "Declaration of Trust"); (b) By-Laws of the Trust as in effect
on the date hereof; (c) Resolutions of the Trustees approving the form of this
Agreement by and among the Adviser, the Sub-Adviser and the Trust, on behalf of
the Fund; (d) Resolutions of the Trustees selecting the Adviser as investment
adviser for the Fund and approving the form of the Investment Management
Contract; (e) the Investment Management Contract; (f) the Fund's portfolio
compliance checklists; (g) the Fund's current Registration Statement, including
the Fund's Prospectus and Statement of Additional Information; and (h) the
Fund's Code of Ethics. The Trust will furnish to the Sub-Adviser from time to
time copies, properly certified or otherwise authenticated, of all amendments of
or supplements to the foregoing, if any. 2. Investment Services. The Sub-Adviser
will use its best efforts to provide to the Fund continuing and suitable
investment advice with respect to investments, consistent with the investment
policies, objectives and restrictions of the Fund as set forth in the Fund's
Prospectus and Statement of Additional Information. In the performance of the
Sub-Adviser's duties hereunder, subject always (x) to the provisions contained
in the documents delivered to the Sub- Adviser pursuant to Section 1, as each of
the same may from time to time be amended or supplemented, and (y) to the
limitations set forth in the Registration Statement of the Trust, on behalf of
the Fund, as in effect from time to time under the Securities Act of 1933, as
amended, and the Investment Company Act of 1940, as amended (the "1940 Act"),
the Sub-Adviser will have investment discretion with respect to the Fund and
will, at its own expense: (a) furnish the Adviser and the Fund with advice and
recommendations, consistent with the investment policies, objectives and
restrictions of the Fund as set forth in the Fund's Prospectus and Statement of
Additional Information, with respect to the purchase, holding and disposition of
portfolio securities including the purchase and sale of options; (b) furnish the
Adviser and the Fund with advice as to the manner in which voting rights,
subscription rights, rights to consent to corporate action and any other rights
pertaining to the Fund's assets shall be exercised, the Fund having the
responsibility to exercise such voting and other rights; (c) furnish the Adviser
and the Fund with research, economic and statistical data in connection with the
Fund's investments and investment policies; (d) submit such reports relating to
the valuation of the Fund's securities as the Trustees may reasonably request;
(e) subject to prior consultation with the Adviser, engage in negotiations
relating to the Fund's investments with issuers, investment banking firms,
securities brokers or dealers and other institutions or investors; (f) The
Sub-Adviser shall have full authority and discretion to select brokers and
dealers to execute portfolio transactions for the Fund and for the selection of
the markets on or in which the transaction will be executed. In providing the
Fund with investment management, it is recognized that the Sub-Adviser will give
primary consideration to securing the most favorable price and efficient
execution considering all circumstances. Within the framework of this policy,
the Sub-Adviser may consider the financial responsibility, research and
investment information and other research services and products 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 Fund that the Sub-Adviser have access to
brokerage and research services and products and security and economic analysis
provided by brokers who may execute brokerage transactions at a higher cost to
the Fund than broker-dealers that do not provide such brokerage and research
services. Therefore, in compliance with Section 28(e) of the Securities Exchange
Act of 1934 ("1934 Act"), the Sub-Adviser is authorized to place orders for the
purchase and sale of securities for the Fund with such brokers, that provide
brokerage and research products and/or services that charge an amount of
commission for effecting securities transaction in excess of the amount of
commission another broker would have charged for effecting that transaction,
provided the Sub-Adviser determines in good faith that such amount of commission
was reasonable in relation to the value of the brokerage and research products
and/or services provided by such broker viewed in terms of either that
particular transaction or the overall responsibilities of the Sub-Adviser for
this or other advisory accounts, subject to review by the Adviser from time to
time with respect to the extent and continuation of this practice. It is
understood that the information, services and products provided by such brokers
may be useful to the Sub-Adviser in connection with the Sub-Adviser's services
to other clients; (g) from time to time or at any time requested by the Adviser
or the Trustees, make reports to the Adviser or the Trust of the Sub- Adviser's
performance of the foregoing services; (h) subject to the supervision of the
Adviser, maintain all books and records with respect to the Fund's securities
transactions required by the 1940 Act, and preserve such records for the periods
prescribed therefor by the 1940 Act (the Sub-Adviser agrees that such records
are the property of the Trust and copies will be surrendered to the Trust
promptly upon request therefor); (i) give instructions to the Fund's custodian
as to deliveries of securities to and from such custodian and transfer of
payment of cash for the account of the Fund, and advise the Adviser on the same
day such instructions are given; and (j) cooperate generally with the Fund and
the Adviser to provide information necessary for the preparation of registration
statements and periodic reports to be filed with the Securities and Exchange
Commission, including Form N-1A, periodic statements, shareholder communications
and proxy materials furnished to holders of shares of the Fund, filings with
state "blue sky" authorities and with United States agencies responsible for tax
matters, and other reports and filings of like nature. 3. Expenses Paid by the
Sub-Adviser. The Sub-Adviser will pay the cost of maintaining the staff and
personnel necessary for it to perform its obligations under this Agreement, the
expenses of office rent, telephone, telecommunications and other facilities it
is obligated to provide in order to perform the services specified in Section 2,
and any other expenses incurred by it in connection with the performance of its
duties hereunder. 4. Expenses of the Fund Not Paid by the Sub-Adviser. The
Sub-Adviser will not be required to pay any expenses which this Agreement does
not expressly make payable by the Sub-Adviser. In particular, and without
limiting the generality of the foregoing but subject to the provisions of
Section 3, the Sub-Adviser will not be required to pay under this Agreement: (a)
the compensation and expenses of Trustees and of independent advisers,
independent contractors, consultants, managers and other agents employed by the
Trust or the Fund other than through the Sub- Adviser; (b) legal, accounting and
auditing fees and expenses of the Trust or the Fund; (c) the fees and
disbursements of custodians and depositories of the Trust or the Fund's assets,
transfer agents, disbursing agents, plan agents and registrars; (d) taxes and
governmental fees assessed against the Trust or the Fund's assets and payable by
the Trust or the Fund; (e) the cost of preparing and mailing dividends,
distributions, reports, notices and proxy materials to shareholders of the Trust
or the Fund except that the Sub-Adviser shall bear the costs of providing the
information referred to in Section 2(j) to the Adviser; (f) brokers' commissions
and underwriting fees; and (g) the expense of periodic calculations of the net
asset value of the shares of the Fund. 5. Compensation of the Sub-Adviser. For
all services to be rendered, facilities furnished and expenses paid or assumed
by the Sub-Adviser as herein provided for the Fund, the Adviser will pay the
Sub-Adviser quarterly, in arrears, a fee at the annual rate of 55% of the
investment advisory fee. The "average daily net assets" of the Fund shall be
determined on the basis set forth in the Fund's Prospectus or otherwise
consistent with the 1940 Act and the regulations promulgated thereunder. The
Sub-Adviser will receive a pro rata portion of such fee for any periods in which
the Sub-Adviser advises the Fund less than a full quarter. The Fund shall not be
liable to the Sub-Adviser for the Sub- Adviser's compensation hereunder.
Calculations of the Sub-Adviser's fee will be based on average net asset values
as provided by the Adviser. In addition to the foregoing, the Sub-Adviser may
from time to time agree not to impose all or a portion of its fee otherwise
payable hereunder (in advance of the time such fee or portion thereof would
otherwise accrue) and/or undertake to pay or reimburse the Fund for all or a
portion of its expenses not otherwise required to be borne or reimbursed by it.
Any such fee reduction or undertaking may be discontinued or modified by the
Sub-Adviser at any time. 6. Other Activities of the Sub-Adviser and Its
Affiliates. Nothing herein contained shall prevent the Sub-Adviser or any
associate of the Sub-Adviser from engaging in any other business or from acting
as investment adviser or investment manager for any other person or entity,
understood that officers, directors and employees of the Sub-Adviser or its
affiliates may continue to engage in providing portfolio management services and
advice to other investment companies, whether or not registered, to other
investment advisory clients of the Sub-Adviser or its affiliates and to said
affiliates themselves. 7. Avoidance of Inconsistent Position. In connection with
purchases or sales of portfolio securities for the account of the Fund, neither
the Sub-Adviser nor any of its investment management subsidiaries nor any of
such investment management subsidiaries' directors, officers or employees will
act as principal or agent or receive any commission, except as may be permitted
by the 1940 Act and rules and regulations promulgated thereunder. The
Sub-Adviser shall not knowingly recommend that the Fund purchase, sell or retain
securities of any issuer in which the Sub-Adviser has a financial interest
without obtaining prior approval of the Adviser prior to the execution of any
such transaction. Nothing herein contained shall limit or restrict the
Sub-Adviser or any of its officers, affiliates or employees from buying, selling
or trading in any securities for its or their own account or accounts. The Trust
and Fund acknowledge the Sub-Adviser and its officers, affiliates, and
employees, and its other clients may at any time have, acquire, increase,
decrease or dispose of positions in investments which are at the same time being
acquired or disposed of hereunder. The Sub-Adviser shall have no obligation to
acquire with respect to the Fund, a position in any investment which the
Sub-Adviser, its officers, affiliates or employees may acquire for its or their
own accounts or for the account of another client, if in the sole discretion of
the Sub-Adviser, it is not feasible or desirable to acquire a position in such
investment on behalf of the Fund. Nothing herein contained shall prevent the
Sub-Adviser from purchasing or recommending the purchase of a particular
security for one or more funds or clients while other funds or clients may be
selling the same security. 8. No Partnership or Joint Venture. The Trust, the
Fund, the Adviser and the Sub-Adviser are not partners of or joint venturers
with each other and nothing herein shall be construed so as to make them such
partners or joint venturers or impose any liability as such on any of them. 9.
Name of the Trust, the Fund and the Sub-Adviser. The Trust and the Fund may use
the name "Xxxx Xxxxxxx" or any name or names derived from or similar to the
names "Xxxx Xxxxxxx Advisers, Inc." or "Xxxx Xxxxxxx Life Insurance Company"
only for so long as this Agreement remains in effect. At such time as this
Agreement shall no longer be in effect, the Trust and the Fund will (to the
extent that they lawfully can) cease to use such a name or any other name
indicating that the Fund is advised by or otherwise connected with the Adviser.
The Fund acknowledges that it has adopted the name Xxxx Xxxxxxx International
Fund through permission of Xxxx Xxxxxxx Life Insurance Company, a Massachusetts
insurance company, and agrees that Xxxx Xxxxxxx Life Insurance Company reserves
to itself and any successor to its business the right to grant the nonexclusive
right to use the name "Xxxx Xxxxxxx" or any similar name or names to any other
corporation or entity, including but not limited to any investment company of
which Xxxx Xxxxxxx Life Insurance Company or any subsidiary or affiliate thereof
shall be the investment adviser. In addition, the Fund and the Trust hereby
consent to the reasonable use of the name of the Fund in marketing/client
materials developed and distributed by or on behalf of Sub-Adviser. In addition,
it is understood that the name "Xxxxxxxx-Xxxxxxxxx" or the name of any of its
affiliates, or any derivative associated with those names, are the valuable
property of the Sub-Adviser and its affiliates and that the Fund, Trust and/or
the Adviser have the right to use such name(s) or derivative(s) in offering
materials and sales literature so long as this Agreement is in effect. Upon
termination of the Agreement, such authorization shall forthwith cease to be in
effect. 10. Limitation of Liability of Sub-Adviser. The Sub-Adviser shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust or the Fund or the Adviser in connection with the matters to which
this Agreement relates, except 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 by it of its obligations and duties under this
Agreement. Any person, even though also employed by the Sub-Adviser, who may be
or become an employee of and paid by the Trust or the Fund shall be deemed, when
acting within the scope of his employment by the Trust or the Fund, to be acting
in such employment solely for the Trust or the Fund and not as the Sub-Adviser's
employee or agent. 11. Duration and Termination of this Agreement. This
Agreement shall remain in force until May 12, 2001. This Agreement may, on 60
days' written notice, be terminated at any time without the payment of any
penalty by the Trust or the Fund by vote of a majority of the outstanding voting
securities of the Fund, by the Trustees, the Adviser or the Sub-Adviser.
Termination of this Agreement with respect to the Fund shall not be deemed to
terminate or otherwise invalidate any provisions of any contract between the
Sub-Adviser and any other series of the Trust. This Agreement shall
automatically terminate in the event of its assignment or upon termination of
the Investment Management Contract. In interpreting the provisions of this
Section 11, the definitions contained in Section 2(a) of the 1940 Act
(particularly the definitions of "assignment," "interested person" or "voting
security"), shall be applied. 12. Amendment of this Agreement. 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, transfer,
assignment, sale, hypothecation or pledge of this Agreement shall be effective
until approved by (a) the Trustees, including a majority of the Trustees who are
not interested persons of the Adviser, the Sub-Adviser, or (other than as Board
members) of the Trust or the Fund, cast in person at a meeting called for the
purpose of voting on such approval, and (b) a majority of the outstanding voting
securities of the Fund, as defined in the 1940 Act. 13. Governing Law. This
Agreement shall be governed and construed in accordance with the laws of the
Commonwealth of Massachusetts. 14. Severability. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be deemed invalid or
unenforceable in whole or in part. 15. Miscellaneous. (a) The captions in this
Agreement are included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The name Xxxx Xxxxxxx
Investment Trust III is the designation of the Trustees under the Amended and
Restated Declaration of Trust dated July 1, 1996, as amended from time to time.
The Declaration of Trust has been filed with the Secretary of The Commonwealth
of Massachusetts. The obligations of the Trust and the Fund are not personally
binding upon, nor shall resort be had to the private property of, any of the
Trustees, shareholders, officers, employees or agents of the Fund, but only the
Fund's property shall be bound. The Trust or the Fund shall not be liable for
the obligations of any other series of the Trust. (b) Any information supplied
by the Sub-Adviser, which is not otherwise in the public domain, in connection
with the performance of its duties hereunder is to be regarded as confidential
and for use only by the Fund and/or its agents, and only in connection with the
Fund and its investments. 16. Xxxxxxxx-Xxxxxxxxx undertakes to promptly notify
Fund of any change in its general partner(s). 17. The Fund agrees to obtain and
maintain insurance coverage satisfying any insurance requirements under the 1940
Act, to carry errors and omissions coverage in the amount of $10,000,000. 18.
The Adviser has received from Sub-Adviser and reviewed the disclosure statement
or "brochure" required to be delivered pursuant to Rule 204-3 of the Act (the
"Brochure"), which Xxxxxxxx was received and reviewed by the Adviser more than
48 hours prior to entering into this Agreement. Yours very truly, XXXX XXXXXXX
INVESTMENT TRUST III on behalf of Xxxx Xxxxxxx International Fund By:
______________________________________ President The foregoing contract is
hereby agreed to as of the date hereof. XXXX XXXXXXX ADVISERS, INC. By:
______________________________________ President XXXXXXXX-XXXXXXXXX CAPITAL
MANAGEMENT By: ____________________________ Name: Title:
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