Exhibit No. 4(f)
FORM OF SUB-ADVISORY CONTRACT
Agreement made as of ___________, _____ ("Contract") between XXXXXXX
ADVISORS, INC., a Delaware corporation ("Xxxxxxx Advisors"), and
___________________________________, a corporation ("Sub-Advisor").
RECITALS
(1) Xxxxxxx Advisors has entered into an Investment Advisory Contract,
dated _________, 2001 ("Advisory Contract"), with Xxxxxxx Managed
Investments Trust ("Trust"), an open-end management investment company
registered under the Investment Company Act of 1940, as amended ("1940
Act"), with respect to the series of the Trust designated as Xxxxxxx
Equity Focus Fund ("Fund");
(2) Xxxxxxx Advisors wishes to retain the Sub-Advisor to furnish certain
investment advisory services to Xxxxxxx Advisors and the Fund; and
(3) The Sub-Advisor is willing to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, Xxxxxxx Advisors and the Sub-Advisor agree as follows:
1. APPOINTMENT. Xxxxxxx Advisors hereby appoints the Sub-Advisor as an
investment sub-advisor with respect to the Fund for the period and on the terms
set forth in this Contract. The Sub-Advisor accepts that appointment and agrees
to render the services herein set forth, for the compensation herein provided.
2. DUTIES AS SUB-ADVISOR.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees ("Board") and review by Xxxxxxx Advisors, and any written guidelines
adopted by the Board or Xxxxxxx Advisors and furnished to the Sub-Advisor, the
Sub-Advisor will provide a continuous investment program for all or a designated
portion of the assets ("Segment") of the Fund, including investment research and
discretionary management with respect to all securities and investments and cash
equivalents in the Fund or Segment. The Sub-Advisor will determine from time to
time what investments will be purchased, retained or sold by the Fund or
Segment. The Sub-Advisor will be responsible for placing purchase and sell
orders for investments and for other related transactions for the Fund or
Segment. The Sub-Advisor will be responsible for voting proxies of issuers of
securities held by the Fund or Segment. The Sub-Advisor will provide services
under this Contract in accordance with the Fund's investment objective, policies
and restrictions as stated in the Trust's currently effective registration
statement under the 1940 Act, and any amendments or supplements thereto
("Registration Statement").
(b) The Sub-Advisor agrees that, in placing orders with brokers, it will
seek to obtain the best net result in terms of price and execution; provided
that, on behalf of the Fund, the Sub-Advisor may, in its discretion, use brokers
that provide the Sub-Advisor with research, analysis, advice and similar
services to execute portfolio transactions on behalf of the Fund or Segment, and
the Sub-Advisor may pay to those brokers in return for brokerage and research
services a higher commission than may be charged by other brokers, subject to
the Sub-Advisor's determining in good faith that such commission is reasonable
in terms either of the particular transaction or of the overall responsibility
of the Sub-Advisor to the Fund or its other clients and that the total
commissions paid by the Fund or Segment will be reasonable in relation to the
benefits to the Fund over the long term. In no instance will portfolio
securities be purchased from or sold to Xxxxxxx Advisors or the Sub-Advisor, or
any affiliated person thereof, except in accordance with the federal securities
laws and the rules and regulations thereunder. The Sub-Advisor may aggregate
sales and purchase orders with respect to the assets of the Fund or Segment with
similar orders being made simultaneously for other accounts advised by the
Sub-Advisor or its affiliates. Whenever the Sub-Advisor simultaneously places
orders to purchase or sell the same security on behalf of the Fund and one or
more other accounts advised by the Sub-Advisor, the orders will be allocated as
to price and amount among all such accounts in a manner believed to be equitable
over time to each account. Xxxxxxx Advisors recognizes that in some cases this
procedure may adversely affect the results obtained for the Fund or Segment.
(c) The Sub-Advisor will maintain all books and records required to be
maintained pursuant to the 1940 Act and the rules and regulations promulgated
thereunder with respect to transactions by the Sub-Advisor on behalf of the Fund
or Segment, and will furnish the Board and Xxxxxxx Advisors with such periodic
and special reports as the Board or Xxxxxxx Advisors reasonably may request. In
compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Sub-Advisor hereby agrees that all records that it maintains for the Fund are
the property of the Trust, agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act any records that it maintains for the Trust and that
are required to be maintained by Rule 31a-1 under the 1940 Act, and further
agrees to surrender promptly to the Trust any records or copies thereof that it
maintains for the Fund upon request by the Trust.
(d) At such times as shall be reasonably requested by the Board or Xxxxxxx
Advisors, the Sub-Advisor will provide the Board and Xxxxxxx Advisors with
economic and investment analyses and reports as well as quarterly reports
setting forth the performance of the Fund or Segment and make available to the
Board and Xxxxxxx Advisors any economic, statistical and investment services
that the Sub-Advisor normally makes available to its institutional or other
customers.
(e) In accordance with procedures adopted by the Board, as amended from
time to time, the Sub-Advisor is responsible for assisting in the fair valuation
of all portfolio securities in the Fund or Segment, in accordance with
procedures adopted by the Board, as amended from time to time. The Sub-Advisor
will use its reasonable efforts to arrange for the provision of a price from one
or more parties independent of the Sub-Advisor for each portfolio security for
which the custodian does not obtain prices in the ordinary course of business
from an automated pricing service.
3. FURTHER DUTIES. In all matters relating to the performance of this
Contract, the Sub-Advisor will act in conformity with the Trust's Declaration of
Trust, By-Laws and Registration Statement and with the written instructions and
written directions of the Board and will comply with the requirements of the
1940 Act and the Investment Advisers Act of 1940, as amended ("Advisers Act")
and the rules under each, Subchapter M of the Internal Revenue Code ("Code"), as
applicable to regulated investment companies; and all other federal and state
laws and regulations applicable to the Trust and the Fund. Xxxxxxx Advisors
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agrees to provide to the Sub-Advisor copies of the Trust's Declaration of Trust,
By-Laws, Registration Statement, written instructions and directions of the
Board and Xxxxxxx Advisors, and any amendments or supplements to any of these
materials as soon as practicable after such materials become available; and
further agrees to identify to the Sub-Advisor in writing any broker-dealers that
are affiliated with Xxxxxxx Advisors (other than UBS PaineWebber Inc. and
Xxxxxxx Advisors itself).
4. EXPENSES. During the term of this Contract, the Sub-Advisor will bear
all expenses incurred by it in connection with its services under this Contract.
5. COMPENSATION.
(a) For the services provided and the expenses assumed by the Sub-Advisor
pursuant to this Contract, Xxxxxxx Advisors, not the Fund, will pay to the
Sub-Advisor a sub-advisory fee, computed daily and paid monthly, at an annual
rate of ____% of the average daily net assets of the Fund or Segment (computed
in the manner specified in the Advisory Contract). If the Sub-Advisor is
managing a Segment, its fees will be based on the value of assets of the Fund
within the Sub-Advisor's Segment.
(b) The fee shall be accrued daily and payable monthly to the Sub-Advisor
on or before the last business day of the next succeeding calendar month.
(c) If this Contract becomes effective or terminates before the end of any
month, the fee for the period from the effective date to the end of the month or
from the beginning of such month to the date of termination, as the case may be,
shall be pro-rated according to the proportion that such period bears to the
full month in which such effectiveness or termination occurs.
6. LIMITATION OF LIABILITY.
The Sub-Advisor shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund, the Trust, its shareholders or by
Xxxxxxx Advisors in connection with the matters to which this Contract relates,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by it of
its obligations and duties under this Contract. Nothing in this paragraph shall
be deemed a limitation or waiver of any obligation or duty that may not by law
be limited or waived.
7. REPRESENTATIONS OF THE SUB-ADVISOR.
(a) The Sub-Advisor (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this Contract
remains in effect; (ii) is not prohibited by the 1940 Act or the Advisers Act
from performing the services contemplated by this Contract; (iii) has met and
will seek to continue to meet for so long as this Contract remains in effect,
any other applicable federal or state requirements, or the applicable
requirements of any regulatory or industry self-regulatory agency necessary to
be met in order to perform the services contemplated by this Contract; (iv) has
the authority to enter into and perform the services contemplated by this
Contract; and (v) will promptly notify Xxxxxxx Advisors of the occurrence of any
event that would disqualify the Sub-Advisor from serving as a sub-investment
advisor of an investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
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(b) The Sub-Advisor has adopted a written code of ethics and appropriate
procedures complying with the requirements of Rule 17j-1 under the 1940 Act and
has provided Xxxxxxx Advisors and the Board with a copy of such code of ethics,
together with evidence of its adoption. Within thirty days of the end of the
last calendar quarter of each year that this Contract is in effect, the
president or a vice president of the Sub-Advisor shall certify to Xxxxxxx
Advisors that the Sub-Advisor has complied with the requirements of Rule 17j-1
during the previous year and that there has been no material violation of the
Sub-Advisor's code of ethics or, if such a violation has occurred, that
appropriate action was taken in response to such violation. Upon the written
request of Xxxxxxx Advisors, the Sub-Advisor shall permit Xxxxxxx Advisors, its
employees or its agents to examine the reports required to be made by the
Sub-Advisor pursuant to Rule 17j-1 relevant to the Sub-Advisor code of ethics.
(c) The Sub-Advisor has provided Xxxxxxx Advisors with a copy of its Form
ADV, as most recently filed with the SEC and promptly will furnish a copy of all
amendments to Xxxxxxx Advisors at least annually.
(d) The Sub-Advisor will notify Xxxxxxx Advisors of any change of control
(as defined in the 0000 Xxx) of the Sub-Advisor, including any change of its
general partners or 25% shareholders or 25% limited partners, as applicable, and
any changes in the key personnel who are either the portfolio manager(s) of the
Fund or senior management of the Sub-Advisor, in each case prior to, or promptly
after, such change.
(e) The Sub-Advisor agrees that neither it, nor any of its affiliates, will
in any way refer directly or indirectly to its relationship with the Fund, the
Trust, Xxxxxxx Advisors or any of their respective affiliates in offering,
marketing or other promotional materials without the prior express written
consent of Xxxxxxx Advisors.
8. SERVICES NOT EXCLUSIVE. The services furnished by the Sub-Advisor
hereunder are not to be deemed exclusive and the Sub-Advisor shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby or unless otherwise agreed to by the parties hereunder
in writing. Nothing in this Contract shall limit or restrict the right of any
trustee, director, officer or employee of the Sub-Advisor, who may also be a
Trustee, officer or employee of the Trust, 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 other business, whether of a similar nature or a dissimilar nature.
9. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the day and year first
written above, provided that this Contract has been approved for the Fund by a
vote of a majority of those Trustees of the Trust who are not parties to this
Contract or interested persons of any such party ("Independent Trustees") cast
in person at a meeting called for the purpose of voting on such approval and
(ii) a majority of the Fund's outstanding voting securities unless in the case
of (ii), the Trust complies with the terms of any SEC exemptive order or rule
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permitting it to modify to the Contract without such vote.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from its effective date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually: (i) by a vote of a majority of Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
the Fund.
(c) Notwithstanding the foregoing, with respect to the Fund, this Contract
may be terminated at any time, without the payment of any penalty, by vote of
the Board or by a vote of a majority of the outstanding voting securities of the
Fund on sixty days' written notice to the Sub-Advisor. The Contract may also be
terminated, without payment of penalty, by Xxxxxxx Advisors (i) upon material
breach by the Sub-Advisor of any of the representations and warranties set forth
in Paragraph 7 of this Contract, if such breach shall not have been cured within
a 20 day period after notice of such breach or (ii) if, in the reasonable
judgment of Xxxxxxx Advisors, the Sub-Advisor becomes unable to discharge its
duties and obligations under this Contract, including circumstances such as
financial insolvency of the Sub-Advisor or other circumstances that could
adversely affect the Fund. The Sub-Advisor may terminate this Contract at any
time, without payment of any penalty, on 120 days' written notice to Xxxxxxx
Advisors. This Contract will terminate automatically in the event of its
assignment or upon termination of the Advisory Contract as it relates to the
Fund.
10. AMENDMENT OF THIS CONTRACT. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Contract as to the Fund
shall be effective until approved by vote of (i) the Independent Trustees and
(ii) a majority of the Fund's outstanding voting securities unless in the case
of (ii), the Trust complies with the terms of any SEC exemptive order or rule
permitting it to modify to the Contract without such vote.
11. GOVERNING LAW. This Contract shall be construed in accordance with the
1940 Act and the laws of the State of Delaware, without giving effect to the
conflicts of laws principles thereof. To the extent that the applicable laws of
the State of Delaware conflict with the applicable provisions of the 1940 Act,
the latter shall control.
12. MISCELLANEOUS. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "affiliated person,"
"interested person," "assignment," "broker," "investment adviser," "net assets,"
"sale," "sell" and "security" shall have the same meaning as such terms have in
the 1940 Act, subject to such exemption as may be granted by the SEC by any
rule, regulation or order. Where the effect of a requirement of the federal
securities laws reflected in any provision of this Contract is made less
restrictive by a rule, regulation or order of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
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such rule, regulation or order. This Contract may be signed in counterpart.
13. NOTICES. Any notice herein required is to be in writing and is deemed
to have been given to the Sub-Advisor or Xxxxxxx Advisors upon receipt of the
same at their respective addresses set forth below. All written notices required
or permitted to be given under this Contract will be delivered by personal
service, by postage mail - return receipt requested or by facsimile machine or a
similar means of same day delivery which provides evidence of receipt (with a
confirming copy by mail as set forth herein). All notices provided to Xxxxxxx
Advisors will be sent to the attention of ____________________. All notices
provided to the Sub-Advisor will be sent to the attention of __________________.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
XXXXXXX ADVISORS, INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attest:
By: By:
Attest:
By: By:
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