Exhibit 99.D5
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT made as of this _____ day of _______, 2001, by and among Pilgrim
Xxxxxx & Associates, Ltd. (the "Adviser"), Analytic Investors, Inc. (the
"Sub-Adviser"), and PBHG Funds, a Delaware business trust (the "Trust").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, pursuant to the Investment Advisory Agreement dated July 11, 2001
and Schedule A dated July 11, 2001 (as such Schedule may be amended from time to
time to add or delete new portfolios) between the Adviser and the Trust, the
Adviser will act as investment adviser to PBHG Disciplined Equity Fund (the
"Portfolio"); and
WHEREAS, the Adviser and the Trust each desire to retain the Sub-Adviser to
provide investment advisory services to the Trust in connection with the
management of the Portfolio, and the Sub-Adviser is willing to render such
investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. (a) Subject to supervision by the Adviser and the Trust's Board of Trustees,
the Sub-Adviser shall manage the investment operations of the Portfolio and the
composition of the Portfolio's investment portfolios, including the purchase,
retention and disposition thereof, in accordance with the Portfolio's investment
objectives, policies and restrictions as stated in such Portfolio's Prospectus
(such Prospectus and Statement of Additional Information as currently in effect
and as amended or supplemented from time to time, being herein called the
"Prospectus"), and subject to the following understandings:
(1) The Sub-Adviser shall provide supervision of the Portfolio's
investments and determine from time to time what investments and securities
will be purchased, retained or sold by the Portfolio, and what portion of
the assets will be invested or held uninvested in cash.
(2) In the performance of its duties and obligations under this
Agreement, the Sub-Adviser shall act in conformity with the Trust's
Agreement and Declaration of Trust and the Prospectus and with the
instructions and directions of the Adviser and of the Board of Trustees and
will conform and comply with the requirements of the 1940 Act, the Internal
Revenue Code of 1986, as amended, and all other applicable federal and
state laws and regulations, as each is amended from time to time.
(3) The Sub-Adviser shall determine the securities to be purchased or
sold by the Portfolio and will place orders with or through such persons,
brokers or dealers to carry out the policy with respect to brokerage set
forth in such Portfolio's Registration Statement (as defined herein) and
Prospectus or as the Board of Trustees or the Adviser may direct from time
to time, in conformity with federal securities laws. In providing the
Portfolio with investment
supervision, the Sub-Adviser will give primary consideration to securing
the most favorable price and efficient execution. Within the framework of
this policy, the Sub-Adviser may consider the financial responsibility,
research and investment information and other services 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 Portfolio that the Sub-Advisor have
access to supplemental investment and market research and security and
economic analysis provided by brokers who may execute brokerage
transactions at a higher cost to the Portfolio than may result when
allocating brokerage to other brokers on the basis of seeking the most
favorable price and efficient execution. Therefore, the Sub-Adviser is
authorized to place orders for the purchase and sale of securities for the
Portfolio with brokers, subject to review by the Trust's Board of Trustees
from time to time with respect to the extent and continuation of this
practice. It is understood that the services provided by such brokers may
be useful to the Sub-Adviser in connection with the Sub-Adviser's services
to other clients.
On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of a Portfolio as well as other clients
of the Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable
laws and regulations, may, but shall be under no obligation to, aggregate
the securities to be so purchased or sold in order to obtain the most
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 Sub-Adviser
in the manner it considers to be the most equitable and consistent with its
fiduciary obligations to the Portfolio in question and to such other
clients.
(4) The Sub-Adviser shall maintain all books and records with respect
to the Portfolio's portfolio transactions required by subparagraphs (b)(5),
(6), (7), (9), (10) and (11) and paragraph (f) of Rule 31a-1 under the 1940
Act and shall render to the Trust's Board of Trustees such periodic and
special reports as the Trust's Board of Trustees may reasonably request.
(b) The Sub-Adviser shall provide the Portfolio's Custodian on each
business day with information relating to all transactions concerning the
Portfolio's assets and shall provide the Adviser with such information upon
request of the Adviser.
(c) The investment management services provided by the Sub-Adviser under
this Agreement are not to be deemed exclusive and the Sub-Adviser shall be free
to render similar services to others, as long as such services do not impair the
services rendered to the Adviser or the Trust.
(d) Services to be furnished by the Sub-Adviser under this Agreement may be
furnished through the medium of any of the Sub-Adviser's officers or employees.
It is understood that the Sub-Adviser may obtain certain administrative
services, including, without limitation, services relating to trade
reconciliation and the production of client reports, from its parent company in
carrying out its obligations under this Agreement.
(e) The Sub-Adviser shall keep the Portfolio's books and records required
to be maintained by the Sub-Adviser pursuant to paragraph 1(a) of this Agreement
and shall timely furnish to the Adviser all information relating to the
Sub-Adviser's services under this Agreement needed by the Adviser to keep the
other books and records of the Portfolios required by Rule 31a-1 under the 1940
Act. The Sub-Adviser agrees that all records that it maintains on behalf of the
Portfolio are property of the Portfolio and the Sub-Adviser will surrender
promptly to a Portfolio any of such records upon the Portfolio's request;
provided, however, that the Sub-Adviser may retain a copy of such records. The
Sub-Adviser further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act any such records as are required to be maintained by it
pursuant to paragraph 1(a) of this Agreement.
2. The Adviser shall continue to have responsibility for all services to be
provided to the Portfolio pursuant to the Advisory Agreement and shall oversee
and review the Sub-Adviser's performance of its duties under this Agreement.
3. The Adviser has delivered to the Sub-Adviser copies of each of the following
documents and will deliver to it all future amendments and supplements, if any:
(a) Agreement and Declaration of Trust, as filed with the Secretary of
State of Delaware (such Agreement and Declaration of Trust as in effect on the
date of this Agreement, and as amended from time to time, are herein called the
"Agreement and Declaration of Trust");
(b) By-Laws of the Trust (such By-Laws, as in effect on the date of this
Agreement, and as amended from time to time, are herein called the "By-Laws");
(c) Certified resolutions of the Trust's Board of Trustees authorizing the
appointment of the Sub-Adviser and approving the form of this Agreement;
(d) Registration Statement under the 1940 Act and the Securities Act of
1933, as amended, on Form N-1A (the "Registration Statement"), as filed with the
Securities and Exchange Commission (the "Commission") relating to the Portfolio
and shares of the Portfolio's beneficial shares, and all amendments thereto;
(e) Notification of Registration of the Portfolio under the 1940 Act on
Form N-8A as filed with the Commission, and all amendments thereto; and
(f) Prospectus of the Portfolio.
4. For the services to be provided by the Sub-Adviser pursuant to this Agreement
for the Portfolio, the Adviser will pay to the Sub-Adviser as full compensation
therefore: (a) during the period that Old Mutual plc & the Sub-Adviser have
agreed to maintain the maximum expense ratio of the Analytic Enhanced Equity
Portfolio pursuant to Section 15(f) of the 1940 Act (the "Section 15(f)
Period"), a fee at an annual rate of 0.60% on the assets transferred over to the
Portfolio as a result of the reorganization of the Analytic Enhanced Equity
Portfolio into the
Portfolio (so called "Legacy Assets") and a fee of 0.30% on non-Legacy Assets
(in each instance net of any waivers, reimbursement payments, supermarket fees
and alliance fees waived, reimbursed or paid by the Adviser in respect of the
Portfolio); and (b) after the expiration of the Section 15(f) Period, a fee at
an annual rate of 0.35% of the Portfolio's average net assets (net of 50% of any
waivers, reimbursement payments, supermarket fees and alliance fees. waived,
reimbursed or paid by the Adviser in respect of the Portfolio). This fee will be
paid to the Sub-Adviser from the Adviser's advisory fee received from the
Portfolio.
5. The Sub-Adviser shall not be liable for any error of judgment or for any loss
suffered by the Portfolio or the Adviser in connection with performance of its
obligations under this Agreement, except a loss resulting from a breach of
fiduciary duty with respect to the receipt of compensation for services (in
which case any award of damages shall be limited to the period and the amount
set forth in Section 36(b)(3) of the 1940 Act), or 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 of its obligations and
duties under this Agreement, except as may otherwise be provided under
provisions of applicable state law which cannot be waived or modified hereby.
6. This Agreement shall continue in effect for a period of more than two years
from the date hereof only so long as continuance is specifically approved at
least annually in conformance with the 1940 Act provided, however, that this
Agreement may be terminated (a) by the Portfolio at any time, without the
payment of any penalty, by the vote of a majority of Trustees of the Trust or by
the vote of a majority of the outstanding voting securities of the Portfolio,
(b) by the Adviser at any time, without the payment of any penalty, on not more
than 60 days' nor less than 30 days' written notice to the other parties, or (c)
by the Sub-Adviser at any time, without the payment of any penalty, on 90 days'
written notice to the other parties. This Agreement shall terminate
automatically and immediately in the event of its assignment. As used in this
Section 6, the terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the respective meanings set forth in the 1940 Act
and the rules and regulations thereunder, subject to such exceptions as may be
granted by the Commission under the 1940 Act.
7. Nothing in this Agreement shall limit or restrict the right of any of the
Sub-Adviser's directors, officers, or employees to engage in any other business
or to devote his or her time and attention in part to the management or other
aspects of any business, whether of a similar or dissimilar nature, nor limit or
restrict the Sub-Adviser's right to engage in any other business or to render
services of any kind to any other corporation, firm, individual or association.
8. During the term of this Agreement, the Adviser agrees to furnish the
Sub-Adviser at its principal office all prospectuses, proxy statements, reports
to shareholders, sales literature or other materials prepared for distribution
to shareholders of the Portfolio, the Trust or the public that refers to the
Sub-Adviser or its clients in any way prior to use thereof and not to use
material if the Sub-Adviser reasonably objects in writing within five business
days (or such other period as may be mutually agreed upon) after receipt
thereof. The Sub-Adviser's right to object to such materials is limited to the
portions of such materials that expressly relate to the
Sub-Adviser, its services and its clients. The Adviser agrees to use its
reasonable best efforts to ensure that materials prepared by its employees or
agents or its affiliates that refer to the Sub-Adviser or its clients in any way
are consistent with those materials previously approved by the Sub-Adviser as
referenced in the first sentence of this paragraph. Sales literature may be
furnished to the Sub-Adviser by first-class or overnight mail, facsimile
transmission equipment or hand delivery.
9. No Trustee or Shareholder of the Trust shall be personally liable for any
debts, liabilities, obligations or expenses incurred by, or contracted for under
this Agreement.
10. No provisions 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 of this Agreement shall be effective until approved by
the vote of the majority of the outstanding voting securities of the Portfolio.
11. This Agreement shall be governed by the laws of the state of Delaware;
provided, however, that nothing herein shall be construed as being inconsistent
with the 1940 Act.
12. This Agreement embodies the entire agreement and understanding among the
parties hereto, and supersedes all prior agreements and understandings relating
to this Agreement's subject matter. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
13. Should any part of this Agreement be held invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
14. Any notice, advice or report to be given pursuant to this Agreement shall be
delivered or mailed:
To the Adviser at:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
To the Sub-Adviser at:
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
To the Trust or the Portfolio at:
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
15. Where the effect of a requirement of the 1940 Act reflected in any provision
of this Agreement is altered by a rule, regulation or order of the Commission,
whether of special or general application, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first written
above.
PILGRIM XXXXXX & ASSOCIATES, LTD. PBHG FUNDS
By: _____________________________ By: ______________________________
Title: __________________________ Title: ___________________________
ANALYTIC INVESTORS, INC.
By: _____________________________
Title: __________________________
