Item #77E
Xxxx Xxxxx Partners Equity Trust
Xxxx Xxxxx Partners Target Retirement 2015
SUBADVISORY AGREEMENT
This SUBADVISORY AGREEMENT (Agreement) is made
this ____ day of August, 2008, by and between Xxxx
Xxxxx Partners Fund Advisor, LLC, a Delaware limited
liability company (the Manager), and Xxxx Xxxxx
Global Asset Allocation, LLC, a Delaware limited
liability company (the Subadviser).
WHEREAS, the Manager has been retained by Xxxx
Xxxxx Partners Equity Trust (the Trust), a Maryland
business trust registered as a management investment
company under the Investment Company Act of 1940, as
amended (the 1940 Act) to provide investment
advisory, management, and administrative services to
the Trust with respect to certain series of the
Trust; and
WHEREAS, the Manager wishes to engage the
Subadviser to provide certain investment advisory
services to the Trust with respect to the series of
the Trust designated in Schedule A annexed hereto
(the Fund) and Subadviser is willing to furnish
such services on the terms and conditions hereinafter
set forth;
NOW THEREFORE, in consideration of the promises
and mutual covenants herein contained, it is agreed
as follows:
1. 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
Subadviser to act as Subadviser with respect to the
Fund for the period and on the terms set forth in
this Agreement. The Subadviser accepts such
appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. The Manager shall cause the Subadviser to be
kept fully informed at all times with regard to the
securities owned by the Fund, its funds available, or
to become available, for investment, and generally as
to the condition of the Funds affairs. The Manager
shall furnish the Subadviser with such other
documents and information with regard to the Funds
affairs as the Subadviser may from time to time
reasonably request.
3. (a) Subject to the supervision of the Trusts
Board of Trustees (the Board) and the Manager, the
Subadviser shall regularly provide the Fund with
respect to such portion of the Funds assets as shall
be allocated to the Subadviser by the Manager from
time to time (the Allocated Assets) with investment
research, advice, management and supervision and
shall furnish a continuous investment program for the
Allocated Assets consistent with the Funds
investment objective, policies and restrictions, as
stated in the Funds current Prospectus and Statement
of Additional Information. The Subadviser shall, with
respect to the Allocated Assets, determine from time
to time what securities and other investments will be
purchased, retained, sold or exchanged by the Fund
and what portion of the Allocated Assets will be held
in the various securities and other investments in
which the Fund invests, and shall implement those
decisions (including the execution of investment
documentation), all subject to the provisions of the
Trusts Declaration of Trust and By-Laws
(collectively, the Governing Documents), the 1940
Act, and the applicable rules and regulations
promulgated thereunder by the Securities and Exchange
Commission (the SEC) and interpretive guidance
issued thereunder by the SEC staff and any other
applicable federal and state law, as well as the
investment objective, policies and restrictions of
the Fund referred to above, and any other specific
policies adopted by the Board and disclosed to the
Subadviser. The Subadviser is authorized as the agent
of the Trust to give instructions with respect to the
Allocated Assets to the custodian of the Fund and any
sub-custodian or prime broker as to deliveries of
securities and other investments and payments of cash
in respect of securities transactions or cash margin
calls for the account of the Fund. Subject to
applicable provisions of the 1940 Act, the investment
program to be provided hereunder entails the
investment of all or substantially all of the assets
of the Fund in one or more investment companies. The
Subadviser will place orders pursuant to its
investment determinations for the Fund either
directly with the issuer or with any broker or
dealer, foreign currency dealer, futures commission
merchant or others selected by it. In connection with
the selection of such brokers or dealers and the
placing of such orders, subject to applicable law,
brokers or dealers may be selected who also provide
brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange
Act of 1934, as amended (the Exchange Act)) to the
Fund and/or the other accounts over which the
Subadviser or its affiliates exercise investment
discretion. The Subadviser is authorized to pay a
broker or dealer who provides such brokerage and
research services a commission for executing a
portfolio transaction for the Fund, which is in
excess of the amount of commission another broker or
dealer would have charged for effecting that
transaction, if the Subadviser 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. This
determination may be viewed in terms of either that
particular transaction or the overall
responsibilities which the Subadviser and its
affiliates have with respect to accounts over which
they exercise investment discretion. The Board may
adopt policies and procedures that modify and
restrict the Subadvisers authority regarding the
execution of the Funds portfolio transactions
provided herein. The Subadviser shall exercise voting
rights, rights to consent to corporate action and any
other rights pertaining to the Allocated Assets
subject to such direction as the Board may provide,
and shall perform such other functions of investment
management and supervision as may be directed by the
Board. The Subadviser may execute on behalf of the
Fund certain agreements, instruments and documents in
connection with the services performed by it under
this Agreement. These may include, without
limitation, brokerage agreements, clearing
agreements, account documentation, futures and
options agreements, swap agreements, other investment
related agreements, and any other agreements,
documents or instruments the Subadviser believes are
appropriate or desirable in performing its duties
under this Agreement.
(b) The Fund hereby authorizes any entity or
person associated with the Subadviser which 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
Subadviser agrees that it will not deal with itself,
or with members of the Board 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 the
Subadviser purchase any securities from an
underwriting or selling group in which it or its
affiliates is participating, or arrange for purchases
and sales of securities between the Fund and another
account advised by the Subadviser 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
will comply with all other provisions of the
Governing Documents and the Funds current Prospectus
and Statement of Additional Information relative to
the Subadviser and its directors and officers.
4. The Subadviser may delegate to any other one
or more companies that the Subadviser controls, is
controlled by, or is under common control with, or to
specified employees of any such companies, certain of
the Subadvisers duties under this Agreement,
provided in each case the Subadviser will supervise
the activities of each such entity or employees
thereof, that such delegation will not relieve the
Subadviser of any of its duties or obligations under
this Agreement and provided further that any such
arrangements are entered into in accordance with and
meet all applicable requirements of the 1940 Act.
5. The Subadviser agrees that it will keep
records relating to its services hereunder in
accordance with all applicable laws, and in
compliance with the requirements of Rule 31a-3 under
the 1940 Act, the Subadviser hereby agrees that any
records that it maintains for the Fund are the
property of the Fund, and further agrees to surrender
promptly to the Fund any of such records upon the
Funds request. The Subadviser further agrees to
arrange for the preservation of the records required
to be maintained by Rule 31a-1 under the 1940 Act for
the periods prescribed by Rule 31a-2 under the 1940
Act.
6. (a) The Subadviser, at its expense, shall
supply the Board, the officers of the Trust, and the
Manager with all information and reports reasonably
required by them and reasonably available to the
Subadviser relating to the services provided by the
Subadviser hereunder.
(b) The Subadviser shall bear all expenses, and
shall furnish all necessary services, facilities and
personnel, in connection with its responsibilities
under this Agreement. Other than as herein
specifically indicated, the Subadviser shall not be
responsible for the Funds expenses, including,
without limitation, advisory fees; distribution fees;
interest; taxes; governmental fees; voluntary
assessments and other expenses incurred in connection
with membership in investment company organizations;
organization costs of the Fund; the cost (including
brokerage commissions, transaction fees or charges,
if any) in connection with the purchase or sale of
the Funds securities and other investments and any
losses in connection therewith; fees and expenses of
custodians, transfer agents, registrars, independent
pricing vendors or other agents; legal expenses; loan
commitment fees; expenses relating to share
certificates; expenses relating to the issuing and
redemption or repurchase of the Funds shares and
servicing shareholder accounts; expenses of
registering and qualifying the Funds shares for sale
under applicable federal and state law; expenses of
preparing, setting in print, printing and
distributing prospectuses and statements of
additional information and any supplements thereto,
reports, proxy statements, notices and dividends to
the Funds shareholders; costs of stationery; website
costs; costs of meetings of the Board or any
committee thereof, meetings of shareholders and other
meetings of the Fund; Board fees; audit fees; travel
expenses of officers, members of the Board and
employees of the Fund, if any; and the Funds pro
rata portion of premiums on any fidelity bond and
other insurance covering the Fund and its officers,
Board members and employees; litigation expenses and
any non-recurring or extraordinary expenses as may
arise, including, without limitation, those relating
to actions, suits or proceedings to which the Fund is
a party and the legal obligation which the Fund may
have to indemnify the Funds Board members and
officers with respect thereto.
7. No member of the Board, officer or employee of
the Trust or Fund shall receive from the Trust or
Fund any salary or other compensation as such member
of the Board, officer or employee while he is at the
same time a director, officer, or employee of the
Subadviser or any affiliated company of the
Subadviser, except as the Board may decide. This
paragraph shall not apply to Board members, executive
committee members, consultants and other persons who
are not regular members of the Subadvisers or any
affiliated companys staff.
8. As compensation for the services performed by
the Subadviser, including the services of any
consultants retained by the Subadviser, the Manager
shall pay the Subadviser out of the management fee it
receives with respect to the Fund, and only to the
extent thereof, as promptly as possible after the
last day of each month, a fee, computed daily at an
annual rate set forth on Schedule A annexed hereto.
The first payment of the fee shall be made as
promptly as possible at the end of the month
succeeding the effective date of this Agreement, and
shall constitute a full payment of the fee due the
Subadviser for all services prior to that date. If
this Agreement is terminated as of any date not the
last day of a month, such fee shall be paid as
promptly as possible after such date of termination,
shall be based on the average daily net assets of the
Fund or, if less, the portion thereof comprising the
Allocated Assets in that period from the beginning of
such month to such date of termination, and shall be
that proportion of such average daily net assets as
the number of business days in such period bears to
the number of business days in such month. The
average daily net assets of the Fund or the portion
thereof comprising the Allocated Assets shall in all
cases be based only on business days and be computed
as of the time of the regular close of business of
the New York Stock Exchange, or such other time as
may be determined by the Board.
9. The Subadviser assumes no responsibility under
this Agreement other than to render the services
called for hereunder, in good faith, and shall not be
liable for any error of judgment or mistake of law,
or for any loss arising out of any investment or for
any act or omission in the execution of securities
transactions for the Fund, provided that nothing in
this Agreement shall protect the Subadviser against
any liability to the Manager or the Fund to which the
Subadviser would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence
in the performance of its duties or by reason of its
reckless disregard of its obligations and duties
hereunder. As used in this Section 9, the term
Subadviser shall include any affiliates of the
Subadviser performing services for the Trust or the
Fund contemplated hereby and the partners,
shareholders, directors, officers and employees of
the Subadviser and such affiliates.
10. Nothing in this Agreement shall limit or
restrict the right of any director, officer, or
employee of the Subadviser who may also be a Board
member, officer, or employee of the Trust or the
Fund, to engage in any other business or to devote
his time and attention in part to the management or
other aspects of any other business, whether of a
similar nature or a dissimilar nature, nor to limit
or restrict the right of the Subadviser to engage in
any other business or to render services of any kind,
including investment advisory and management
services, to any other fund, firm, individual or
association. If the purchase or sale of securities
consistent with the investment policies of the Fund
or one or more other accounts of the Subadviser is
considered at or about the same time, transactions in
such securities will be allocated among the accounts
in a manner deemed equitable by the Subadviser. Such
transactions may be combined, in accordance with
applicable laws and regulations, and consistent with
the Subadvisers policies and procedures as presented
to the Board from time to time.
11. For the purposes of this Agreement, the
Funds net assets shall be determined as provided
in the Funds then-current Prospectus and Statement
of Additional Information and the terms assignment,
interested person, and majority of the outstanding
voting securities shall have the meanings given to
them by Section 2(a) of the 1940 Act, subject to such
exemptions as may be granted by the SEC by any rule,
regulation or order.
12. This Agreement will become effective with
respect to the Fund on the date set forth opposite
the Funds name on Schedule A annexed hereto,
provided that it shall have been approved by the
Trusts Board and, if so required by the 1940 Act, by
the shareholders of the Fund in accordance with the
requirements of the 1940 Act and, unless sooner
terminated as provided herein, will continue in
effect through August __, 2010. Thereafter, if not
terminated, this Agreement shall continue in effect
with respect to the Fund, so long as such continuance
is specifically approved at least annually (i) by the
Board or (ii) by a vote of a majority of the
outstanding voting securities of the Fund, provided
that in either event the continuance is also approved
by a majority of the Board members who are not
interested persons of any party to this Agreement, by
vote cast in person at a meeting called for the
purpose of voting on such approval.
13. This Agreement is terminable with respect to
the Fund without penalty by the Board or by vote of a
majority of the outstanding voting securities of the
Fund, in each case on not more than 60 days nor less
than 30 days written notice to the Subadviser, or by
the Subadviser upon not less than 90 days written
notice to the Fund and the Manager, and will be
terminated upon the mutual written consent of the
Manager and the Subadviser. This Agreement shall
terminate automatically in the event of its
assignment by the Subadviser and shall not be
assignable by the Manager without the consent of the
Subadviser.
14. The Subadviser agrees that for any claim by
it against the Fund in connection with this Agreement
or the services rendered under this Agreement, it
shall look only to assets of the Fund for
satisfaction and that it shall have no claim against
the assets of any other series of the Trust.
15. 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 material
amendment of the Agreement shall be effective until
approved, if so required by the 1940 Act, by vote of
the holders of a majority of the Funds outstanding
voting securities.
16. This Agreement, and any supplemental terms
contained on Annex I hereto, if applicable, embodies
the entire agreement and understanding between the
parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter
hereof. Should any part of this Agreement be held or
made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding
on and shall inure to the benefit of the parties
hereto and their respective successors.
17. This Agreement shall be construed and the
provisions thereof interpreted under and in
accordance with the laws of the State of New York.
[signature page to follow]
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their
officers thereunto duly authorized.
XXXX XXXXX
PARTNERS
FUND
ADVISOR,
LLC
By:
___________
___________
___________
______
Name:
Title:
XXXX XXXXX
GLOBAL
ASSET
ALLOCATION,
LLC
By:
___________
___________
___________
_____
Name:
Title:
The foregoing is acknowledged:
The undersigned officer of the Trust has executed
this Agreement not individually but in his/her
capacity as an officer of the Trust. The Trust does
not hereby undertake, on behalf of the Fund or
otherwise, any obligation to the Subadviser.
XXXX XXXXX
PARTNERS
EQUITY
TRUST
By:
___________
___________
___________
__________
Name:
Title:
ANNEX I
Not applicable.
SCHEDULE A
Xxxx Xxxxx Partners Target Retirement 2015
Date:
August __, 2008
Fee:
None.
1505473.4
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