JOHN HANCOCK EXCHANGE-TRADED FUND TRUST SUBADVISORY AGREEMENT
Exhibit (d)(2)
XXXX XXXXXXX EXCHANGE-TRADED FUND TRUST
AGREEMENT made this 23rd day of September, 2015, between Xxxx Xxxxxxx Advisers, LLC, a Delaware limited liability company (the “Adviser”), and Dimensional Fund Advisors LP (formerly, Dimensional Fund Advisors Inc.), a Delaware limited partnership (the “Subadviser”). In consideration of the mutual covenants contained herein, the parties agree as follows:
| 1. | APPOINTMENT OF SUBADVISER |
The Subadviser undertakes to act as investment subadviser to, and, subject to the supervision of the Trustees of Xxxx Xxxxxxx Exchange-Traded Fund Trust (the “Trust”) and the terms of this Agreement, to manage the investment and reinvestment of the assets of the Portfolios specified in Appendix A to this Agreement as it shall be amended by the Adviser and the Subadviser from time to time (the “Portfolios”). The Subadviser will be an independent contractor and will have no authority to act for or represent the Trust or Adviser in any way except as expressly authorized in this Agreement or another writing by the Trust and Adviser.
| 2. | SERVICES TO BE RENDERED BY THE SUBADVISER TO THE TRUST |
| a. | Subject always to the direction and control of the Trustees of the Trust, the Subadviser will manage the investments and determine the composition of the assets of the Portfolios in accordance with the Portfolios’ registration statement, as amended. In fulfilling its obligations to manage the investments and reinvestments of the assets of the Portfolios, the Subadviser will: |
| i. | obtain and evaluate such economic, statistical, financial and other information that the Subadviser deems relevant to the management of the Portfolios; |
| ii. | formulate and implement a continuous investment program for each Portfolio consistent with the investment objectives and related investment policies for each such Portfolio as described in the Trust’s registration statement, as amended; provided however, that the Adviser provides the Subadviser with changes to the Trust’s registration statement with respect to the Portfolios at least sixty (60) days in advance of the effectiveness of such change with respect to any material change that affects the management of the Portfolios’ assets, and within a reasonable period of time in advance of the effectiveness of such change with respect to any other changes; |
| iii. | implement these investment programs by the purchase and sale of securities including the placing of orders for such purchases and sales; |
| iv. | regularly report to the Trustees of the Trust with respect to the implementation of these investment programs; and |
| v. | upon reasonable request, provide assistance to the Trust to assist the Trust in fair value pricing securities held by the Portfolios for which market quotations are not readily available, including communicating with the Trust’s Custodian or pricing agent. |
| b. | The Subadviser, at its expense, will furnish (i) all necessary investment and management facilities, including payment of salaries of personnel required for it to execute its duties faithfully, and (ii) administrative facilities, including recordkeeping, clerical personnel and equipment necessary for the conduct of investing each Portfolios’ assets (excluding non-investment advisory services such as the determination of net asset value and custodial, transfer agency, and Portfolio and shareholder accounting services). The Adviser acknowledges and agrees that the Subadviser is not responsible to advise or act for the Trust or the Portfolio in any legal proceedings, including bankruptcies or class actions, involving securities held or previously held by the Portfolio or the issuers of such securities. To the extent the Subadviser has received written documentation related to such proceedings related to securities held by the Trust, which are managed by the Subadviser, the Subadviser shall promptly forward the documentation to the Adviser. |
| c. | The Subadviser will select brokers, dealers, futures commission merchants and other counterparties to effect all transactions for the Portfolios, including without limitation, with respect to transactions in securities, derivatives, foreign currency exchange, commodities and/or any other investments. The Subadviser will draft and negotiate agreements and related documentation that Subadviser believes are necessary or desirable in order to effect transactions on behalf of the Portfolios; however, the Adviser reserves the right to review and make adjustments to such documentation prior to finalization by the Subadviser or, in Adviser’s discretion, to draft and fully negotiate such documentation. The Subadviser will place all orders with brokers, dealers, counterparties or issuers, and will negotiate brokerage commissions, spreads and other financial and non-financial terms, as applicable. The Subadviser will always seek the best possible price and execution in the circumstances in all transactions. Subject to the foregoing, the Subadviser is directed at all times to seek to execute transactions for the Portfolios in accordance with its trading policies, as disclosed by the Subadviser to the Portfolio from time to time, but in all cases subject to policies and practices established by the Portfolio and described in the Trust’s registration statement. Notwithstanding the foregoing, the Subadviser may pay a broker-dealer that provides research and brokerage services a higher spread or commission for a particular transaction than otherwise might have been charged by another broker-dealer to the extent permitted by Section 28(e) of the Securities Exchange Act of 1934 and by the Trust’s registration statement, if the Subadviser determines that the higher spread or commission is reasonable in relation to the value of the brokerage and research services that such broker-dealer provides, viewed in terms of either the particular transaction or the Subadviser’s overall responsibilities with respect to accounts managed by the Subadviser. The Subadviser may use for the benefit of the Subadviser’s other clients, or make available to companies affiliated with the Subadviser or to its directors for the benefit of its clients, any such brokerage and research services that the Subadviser obtains from brokers or dealers. |
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| d. | On occasions when the Subadviser deems the purchase or sale of a security to be in the best interest of the Portfolio 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 securities to be purchased or sold to attempt to obtain a more 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 Subadviser in the manner the Subadviser considers to be the most equitable and consistent with its fiduciary obligations to the Portfolio and to its other clients. |
| e. | The Subadviser will maintain all accounts, books and records with respect to the Portfolios as are required to be kept of an investment adviser of a registered investment company pursuant to the Investment Company Act of 1940 (the “Investment Company Act”) and Investment Advisers Act of 1940 (the “Investment Advisers Act”) and the rules thereunder. |
| f. | To the extent proxy voting materials have been forwarded to the Subadviser in a timely fashion by the Portfolio’s custodian, the Subadviser shall vote proxies relating to the Portfolio’s investment securities in accordance with (i) the Trust’s proxy voting policies and procedures; provided however, the Adviser shall notify the Subadviser of any material change to the Trust’s proxy voting policies and procedures at least sixty (60) days in advance of the effectiveness of such change); and (ii) the proxy voting policies and procedures adopted by the Subadviser in conformance with Rule 206(4)-6 under the Investment Advisers Act (a summary of which is described in the Subadviser’s Form ADV Part II, as amended from time to time). |
| g. | The Adviser understands and agrees that the Subadviser, as part of its duties hereunder, is not responsible for determining whether or not the Portfolio is a suitable and appropriate investment for the clients who invest in such Portfolio. |
| h. | The Subadviser may rely on specific information, instructions or requests given or made to Subadviser by the Adviser with respect to the Trust, the Portfolio and the management of the Portfolio’s assets, which are believed to be in good faith by the Subadviser to be reliable. |
| i. | The Subadviser shall discharge its responsibilities hereunder in compliance with (i) the Investment Company Act and the Investment Advisers Act, and the rules and regulations adopted under each from time to time; (ii) the income and diversification requirements of Section 851(b)(2) and (3) of Subchapter M of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”) applicable to regulated investment companies (as defined in the Internal Revenue Code); (iii) either of the investment thresholds specified in Rule 4.5(c)(2)(iii)(A)-(B) under Commodity Exchange Act, as amended (“CEA”); (iv) all other federal and state laws and regulations, including without limitation, the rules of any self-regulatory organization, that apply to the services that Subadviser provides pursuant to this Agreement; (v) the Trust’s Amended and Restated Agreement and Declaration of Trust (the “Declaration”) and By-Laws, as each may be amended from time to time; (vi) the objectives, policies and limitations for each Portfolio set forth in Registration Statement; (vii) such guidelines, policies and procedures adopted by the Trustees with respect to a Portfolio or to the activities of the Subadviser under this Agreement; and (viii) any terms and conditions of (to the extent applicable to the services that the Subadviser provides pursuant to this Agreement) exemptive relief obtained by the Trust from the U.S. Securities and Exchange Commission (the “SEC”); provided, however, that in the case of (vi) – (vii), Subadviser will have a reasonable opportunity to review and comment on, and a reasonable time to implement, any limitation, process or requirement referenced therein before Subadviser will be obligated under this Agreement to adhere to or implement any such limitation, process, or requirement. The Subadviser shall maintain compliance procedures and operational processes that it believes are reasonably designed to prevent the services that it provides under this Agreement from causing the Subadviser or a Portfolio to violate any requirement imposed on the Subadviser or a Portfolio by (i)-(viii). |
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| j. | The Subadviser shall not be responsible for effecting those purchases or sales of portfolio securities that result from any kind of in-kind transfer of portfolio securities that is made in connection with the issuance or redemption of a Portfolio’s “creation units” (as such term is defined in the Portfolio’s registration statement). |
| 3. | COMPENSATION OF SUBADVISER |
The Adviser will pay the Subadviser with respect to each Portfolio the compensation specified in Appendix A to this Agreement.
| 4. | LIABILITY OF SUBADVISER AND AFFILIATES |
The Subadviser, its affiliates and each of their directors, officers and employees shall not be liable to the Adviser or the Trust for any error of judgment or mistake of law or for any loss suffered by the Adviser or Trust in connection with the matters to which this Agreement relates except for losses resulting from willful misfeasance, bad faith or gross negligence in the performance of, or from the reckless disregard of, the duties of the Subadviser or any of its directors.
| 5. | CONFLICTS OF INTEREST |
It is understood that trustees, officers, agents and shareholders of the Trust are or may be interested in the Subadviser as trustees, officers, shareholders or otherwise; that employees, agents and shareholders of the Subadviser are or may be interested in the Trust as trustees, officers, shareholders or otherwise; that the Subadviser may be interested in the Trust; and that the existence of any such dual interest shall not affect the validity hereof or of any transactions hereunder except as otherwise provided in the Declaration and the Certificate of Limited Partnership of the Subadviser, respectively, or by specific provision of applicable law.
| 6. | REGULATION |
The Subadviser shall submit to all regulatory and administrative bodies having jurisdiction over the services provided pursuant to this Agreement any information, reports or other material which any such body by reason of this Agreement may request or require pursuant to applicable laws and regulations.
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| 7. | DURATION AND TERMINATION OF AGREEMENT |
This Agreement shall become effective with respect to each Portfolio on the later of (i) its execution and (ii) the date of the meeting of the Board of Trustees of the Trust, at which meeting this Agreement is approved as described below. The Agreement will continue in effect for a period more than two years from the date of its execution only so long as such continuance is specifically approved at least annually either by the Trustees of the Trust or by a majority of the outstanding voting securities of each of the Portfolios, provided that in either event such continuance shall also be approved by the vote of a majority of the Trustees of the Trust who are not interested persons (as defined in the Investment Company Act) of any party to this Agreement cast in person at a meeting called for the purpose of voting on such approval. Any required shareholder approval of the Agreement or of any continuance of the Agreement shall be effective with respect to any Portfolio if a majority of the outstanding voting securities of the series (as defined in Rule 18f-2(h) under the Investment Company Act) of shares of that Portfolio votes to approve the Agreement or its continuance, notwithstanding that the Agreement or its continuance may not have been approved by a majority of the outstanding voting securities of (a) any other Portfolio affected by the Agreement or (b) all the portfolios of the Trust.
This Agreement may be terminated at any time, without the payment of any penalty, by the Trustees of the Trust, by the vote of a majority of the outstanding voting securities of the Trust, or with respect to any Portfolio by the vote of a majority of the outstanding voting securities of such Portfolio, on sixty (60) days’ written notice to the Adviser and the Subadviser, or by the Adviser or Subadviser on sixty (60) days’ written notice to the Trust and the other party. This Agreement will automatically terminate, without the payment of any penalty, in the event of its assignment (as defined in the Investment Company Act) or in the event the Advisory Agreement between the Adviser and the Trust terminates for any reason.
| 8. | PROVISION OF CERTAIN INFORMATION |
| a. | The Subadviser will promptly notify the Adviser in writing of the occurrence of any of the following events: |
| i. | the Subadviser fails to be registered as an investment adviser under the Investment Advisers Act or under the laws of any jurisdiction in which the Subadviser is required to be registered as an investment adviser in order to perform its obligations under this Agreement; |
| ii. | the Subadviser is served or otherwise receives notice of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, involving the affairs of the Trust; and |
| iii. | any change in actual control or management of the Subadviser or the portfolio manager responsible for coordinating the day-to-day management of any Portfolio. |
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| b. | The Adviser shall furnish to the Subadviser copies of the following documents: |
| i. | the resolutions of the Trust’s Board approving the engagement of the Subadviser as a subadviser to the Portfolio and approving the form of this Agreement; |
| ii. | current copies of the registration statement, Prospectus and Statement of Additional Information of the Trust relating to the Portfolio; |
| iii. | resolutions, policies and procedures adopted by the Trust’s Board in respect of the management or operation of the Portfolio; and |
| iv. | a list of affiliated brokers and underwriters and other affiliates for compliance with applicable provisions of the Investment Company Act. |
The Adviser shall furnish the Subadviser from time to time with copies, properly certified or otherwise authenticated, of all amendments of or supplements to the foregoing, if any. Such amendments or supplements to the items above shall be provided: (1) with respect to any material change that affects the management of the Portfolios’ assets, within sixty (60) days for items (i) and (ii) above and thirty (30) days for items (iii) and (iv) above in advance of the effectiveness of such amendment or supplement, and (2) with respect to any other changes, within a reasonable period of time such materials become available to the Adviser. Until so provided, the Subadviser may continue to rely on those documents previously provided.
| 9. | SERVICES TO OTHER CLIENTS |
The Adviser understands, and has advised the Trust’s Board of Trustees, that the Subadviser now acts, or may in the future act, as an investment adviser to fiduciary and other managed accounts and as investment adviser or subadviser to other investment companies. Further, the Adviser understands, and has advised the Trust’s Board of Trustees that the Subadviser and its affiliates may give advice and take action for its accounts, including investment companies, which differs from advice given on the timing or nature of action taken for the Portfolio. The Subadviser is not obligated to initiate transactions for a Portfolio in any security which the Subadviser, its partners, affiliates or employees may purchase or sell for their own accounts or other clients.
| 10. | CONSULTATION WITH OTHERS |
The Subadviser may enter into arrangements with other persons affiliated with the Subadviser or with unaffiliated third parties to better enable the Subadviser to fulfill its obligations under this Agreement for the provision of certain personnel and facilities to the Subadviser; provided that the Subadviser shall be responsible for any acts or omissions of such affiliated or unaffiliated persons or parties to the extent Subadviser would have been responsible under this Agreement, and shall notify the Adviser in writing before entering into such arrangements.
Notwithstanding the foregoing, as required by Rule 17a-10 under the Investment Company Act of 1940, the Subadviser is prohibited from consulting with the entities listed below concerning transactions for a Portfolio in securities or other assets:
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| a. | other subadvisers to a Portfolio; |
| b. | other subadvisers to a Trust portfolio; and |
| c. | other subadvisers to a portfolio under common control with the Portfolio. |
| 11. | AMENDMENTS TO THE AGREEMENT |
This Agreement may be amended by the parties only if such amendment is specifically approved by the vote of a majority of the Trustees of the Trust and by the vote of a majority of the Trustees of the Trust who are not interested persons of any party to this Agreement cast in person at a meeting called for the purpose of voting on such approval. Any required shareholder approval shall be effective with respect to any Portfolio if a majority of the outstanding voting securities of that Portfolio vote to approve the amendment, notwithstanding that the amendment may not have been approved by a majority of the outstanding voting securities of (a) any other Portfolio affected by the amendment or (b) all the portfolios of the Trust.
| 12. | ENTIRE AGREEMENT |
This Agreement contains the entire understanding and agreement of the parties.
| 13. | HEADINGS |
The headings in the sections of this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.
| 14. | NOTICES |
All notices required to be given pursuant to this Agreement shall be delivered or mailed to the last known business address of the Trust or applicable party in person or by registered mail or a private mail or delivery service providing the sender with notice of receipt. Notice shall be deemed given on the date actually received.
| 15. | SEVERABILITY |
Should any portion of this Agreement for any reason be held to be void in law or in equity, the Agreement shall be construed, insofar as is possible, as if such portion had never been contained herein.
| 16. | GOVERNING LAW |
The provisions of this Agreement shall be construed and interpreted in accordance with the laws of Massachusetts, or any of the applicable provisions of the Investment Company Act. To the extent that the laws of Massachusetts, or any of the provisions in this Agreement, conflict with applicable provisions of the Investment Company Act, the latter shall control.
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| 17. | LIMITATION OF LIABILITY |
The Declaration, a copy of which, together with all amendments thereto, is on file in the office of the Secretary of The Commonwealth of Massachusetts, provides that the name “ Xxxx Xxxxxxx Exchange-Traded Fund Trust” refers to the Trustees under the Declaration collectively as Trustees, but not as individuals or personally; and no Trustee, shareholder, officer, employee or agent of the Trust shall be held to any personal liability, nor shall resort be had to their private property, for the satisfaction of any obligation or claim, in connection with the affairs of the Trust or any portfolio thereof, but only the assets belonging to the Trust, or to the particular Portfolio with respect to which such obligation or claim arose, shall be liable.
| 18. | CONFIDENTIALITY OF TRUST PORTFOLIO HOLDINGS; MATERIAL NON-PUBLIC INFORMATION |
Except as otherwise required pursuant to the terms and conditions of the Trust’s exemptive relief relating to the operation of the Portfolios as exchange traded funds and any related requirements for the listing of its shares on a securities exchange, the Subadviser agrees to treat Trust portfolio holdings as confidential information and shall comply with the Trust’s “Policy Regarding Disclosure of Portfolio Holdings”, as such policy applies to exchange traded funds and as it may be amended from time to time. The Trust shall provide the Subadviser with such policy and any such amendments. The Subadviser will keep in place a policy on xxxxxxx xxxxxxx, as amended from time to time, and shall prohibit its employees from trading in violation of such policy.
| 19. | COMPLIANCE |
Upon execution of this Agreement, the Subadviser shall provide the Adviser with the Subadviser’s written policies and procedures (“Compliance Policies”) as required by Rule 206(4)-7 under the Investment Advisers Act. Throughout the term of this Agreement, the Subadviser shall promptly submit to the Adviser: (i) any material changes to the Compliance Policies, (ii) notification of the commencement of a regulatory examination (other than written inquiries such as “sweep letters” conducted by the SEC or exams that cannot be disclosed by law or order of the regulatory agency) of the Subadviser that relates to services provided by the Subadviser to the Trust and a general summary of any material deficiencies of the Subadviser cited by the applicable regulatory agency as a result of such examination to the extent such disclosure is permitted by law, and (iii) notification of any material compliance matter that relates to the services provided by the Subadviser to the Trust, including but not limited to any material violation of the Compliance Policies or of the Subadviser’s code of ethics and any material deficiency relating to the services provided by the Subadviser to the Trust under this Agreement discovered as a result of any formal internal audit conducted by Subadviser. Throughout the term of this Agreement, the Subadviser shall provide the Adviser with certifications, information and access to personnel (including those resources that are responsible for enforcing the Compliance Policies to permit reasonable testing of such Compliance Policies by the Adviser) that the Adviser may reasonably request to enable the Trust to comply with Rule 38a-1 under the Investment Company Act.
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| 20. | REFERENCES TO THE ADVISER AND SUBADVISER |
During the term of this Agreement, each party agrees to furnish the other party at its principal office sales literature, prospectuses or shareholder reports, or other similar material prepared for distribution to the public, which refers to the other party or its clients, prior to use thereof and not to use such references if the other party objects in writing within five business days (or such other time as may be agreed upon) after receipt thereof. Sales literature may be furnished to the other party by first-class or overnight mail, facsimile transmission equipment or hand delivery.
| 21. | NO THIRD PARTY BENEFICIARIES |
There shall be no third party beneficiaries of this Agreement.
(REMAINDER OF THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers as of the date first mentioned above.
| XXXX XXXXXXX ADVISERS, LLC | |||
| By: | /s/ Xxx Xxxxxxx | ||
| Name: | Xxx Xxxxxxx | ||
| Title: | Senior Vice President and | ||
| Chief Investment Officer | |||
| DIMENSIONAL FUND ADVISORS LP | ||
| By: | Dimensional Holdings Inc., its general partner | |
| By: | /s/ Xxxxxxx O | |
| Name: Xxxxxxx O | ||
| Title: Vice President | ||
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APPENDIX A
The Subadviser shall serve as investment subadviser for each Portfolio of the Trust listed below. The Adviser will pay the Subadviser, as full compensation for all services provided under this Agreement with respect to each Portfolio, the fee computed separately for each Portfolio at an annual rate as follows (the “Subadviser Fee”):
| Portfolio | First $300 million of Aggregate Net Assets* | Excess Over $300 million of Aggregate Net Assets* | ||||||
| Xxxx Xxxxxxx Multifactor Large Cap ETF | [ ] | [ ] | ||||||
| Xxxx Xxxxxxx Multifactor Mid Cap ETF | [ ] | [ ] | ||||||
| Xxxx Xxxxxxx Multifactor Healthcare ETF | [ ] | [ ] | ||||||
| Xxxx Xxxxxxx Multifactor Technology ETF | [ ] | [ ] | ||||||
| Xxxx Xxxxxxx Multifactor Financials ETF | [ ] | [ ] | ||||||
| Xxxx Xxxxxxx Multifactor Consumer Discretionary ETF | [ ] | [ ] | ||||||
*The term Aggregate Net Assets includes the net assets of a Portfolio of the Trust subadvised by the Subadviser. It also includes with respect to each Portfolio the net assets of one or more other portfolios subadvised by the Subadviser as indicated below, but in each case only for the period during which the Subadviser for the Portfolio also serves as the subadviser for the other portfolio(s).
| Trust Portfolio(s) | Other Portfolio(s) | |||
| Xxxx Xxxxxxx Multifactor Large Cap ETF | N/A | |||
| Xxxx Xxxxxxx Multifactor Mid Cap ETF | N/A | |||
| Xxxx Xxxxxxx Multifactor Healthcare ETF | N/A | |||
| Xxxx Xxxxxxx Multifactor Technology ETF | N/A | |||
| Xxxx Xxxxxxx Multifactor Financials ETF | N/A | |||
| Xxxx Xxxxxxx Multifactor Consumer Discretionary ETF | N/A | |||
For purposes of determining Aggregate Net Assets and calculating the Subadviser Fee, the net assets of the Portfolio and each other portfolio of the Trust are determined as of the close of business on the previous business day of the Trust, and the net assets of each portfolio of each other fund are determined as of the close of business on the previous business day of that fund.
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The Subadviser Fee for a Portfolio shall be based on the applicable annual fee rate for the Portfolio which for each day shall be equal to the (i) the sum of the amounts determined by applying the annual percentage rates in the table to the applicable portions of Aggregate Net Assets divided by (ii) Aggregate Net Assets (the “Applicable Annual Fee Rate”). The Subadviser Fee for each Portfolio shall be accrued for each calendar day, and the sum of the daily fee accruals shall be paid monthly to the Subadviser within 30 calendar days of the end of each month. The daily fee accruals will be computed by multiplying the fraction of one over the number of calendar days in the year by the Applicable Annual Fee Rate, and multiplying this product by the net assets of the Portfolio. The Adviser shall provide Subadviser with such information as Subadviser may reasonably request supporting the calculation of the fees paid to it hereunder. Fees shall be paid either by wire transfer or check, as directed by Subadviser.
If, with respect to any Portfolio, this Agreement becomes effective or terminates, or if the manner of determining the Applicable Annual Fee Rate changes, before the end of any month, the fee (if any) for the period from the effective date to the end of such month or from the beginning of such month to the date of termination or from the beginning of such month to the date such change, as the case may be, shall be prorated according to the proportion which such period bears to the full month in which such effectiveness or termination or change occurs.
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