EX-99.B(d)(2)
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT made this __ day of _________, 2004, between Constellation
Investment Management Company, LP (the "Adviser") and Xxxxxx Investment
Partners, Inc. (the "Sub-Adviser").
WHEREAS, Westlakes Institutional Portfolios, a Delaware business trust
(the "Trust"), is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser has entered into a Management Agreement dated
________, 2004 (the "Management Agreement") with the Trust, pursuant to which
the Adviser will act as manager and investment adviser to the separate series of
the Trust set forth on Schedule A of the Management Agreement (each a
"Portfolio"); and
WHEREAS, the Adviser, with the approval of the Trust, desires to retain
the Sub-Adviser to provide investment advisory services to the Adviser in
connection with the management of the Portfolio(s) set forth on Schedule A of
this Investment Sub-Advisory Agreement, and the Sub-Adviser is willing to render
such investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. DUTIES OF THE SUB-ADVISER. Subject to supervision by the Adviser and
the Trust's Board of Trustees, the Sub-Adviser shall manage all of the
securities and other assets of the Portfolios entrusted to it hereunder
(the "Assets"), including the purchase, retention and disposition of
the Assets, in accordance with each Portfolio's investment objectives,
policies and restrictions as stated in the Portfolio's prospectus and
statement of additional information, as currently in effect and as
amended or supplemented from time to time (referred to collectively as
the "Prospectus"), and subject to the following:
(a) The Sub-Adviser shall, in consultation with and subject to the
direction of the Adviser,
determine from time to time what Assets will be purchased,
retained or sold by the Portfolio, and what portion of the
Assets will be invested or held uninvested in cash.
(b) In the performance of its duties and obligations under this
Agreement, the Sub-Adviser shall act in conformity with the
Trust's Declaration of Trust (as defined herein) and the
Prospectus and with the instructions and directions of the
Adviser and of the Board of Trustees of the Trust and will
conform to and comply with the requirements of the 1940 Act,
the Internal Revenue Code of 1986, and all other applicable
federal and state laws and regulations, as each is amended
from time to time.
(c) The Sub-Adviser shall determine the Assets to be purchased or
sold by the Portfolio as provided in subparagraph (a) and will
place orders with or through such persons, brokers or dealers
to carry out the policy with respect to brokerage set forth in
each Portfolio's registration statement on Form N-1A filed
with the Securities and Exchange Commission and Prospectus or
as the Board of Trustees or the Adviser may direct from time
to time, in conformity with federal securities laws. In
executing Portfolio transactions and selecting brokers or
dealers, the Sub-Adviser will use its best efforts to seek on
behalf of each Portfolio the best overall terms available. In
assessing the best overall terms available for any
transaction, the Sub-Adviser shall consider all factors that
it deems relevant, including the breadth of the market in the
security, the price of the security, the
financial condition and execution capability of the broker or
dealer, and the reasonableness of the commission, if any, both
for the specific transaction and on a continuing basis. In
evaluating the best overall terms available, and in selecting
the broker-dealer to execute a particular transaction, the
Sub-Adviser may also consider the brokerage and research
services provided (as those terms are defined in Section 28(e)
of the Securities Exchange Act of 1934). Consistent with any
guidelines established by the Board of Trustees of the Trust,
the Sub-Adviser is authorized to pay to a broker or dealer who
provides such brokerage and research services a commission for
executing a fund transaction for a Portfolio which is in
excess of the amount of commission another broker or dealer
would have charged for effecting that transaction if, but only
if, the Sub-Adviser determines in good faith that such
commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or
dealer - - viewed in terms of that particular transaction or
terms of the overall responsibilities of the Sub-Adviser to
the Portfolio. In addition, the Sub-Adviser is authorized to
allocate purchase and sale orders for securities to brokers or
dealers (including brokers and dealers that are affiliated
with the Adviser, Sub-Adviser or the Trust's principal
underwriter) to take into account the sale of shares of the
Trust if the Sub-Adviser believes that the quality of the
transaction and the commission are comparable to what they
would be with other qualified firms. In no instance, however,
will a Portfolio's Assets be purchased from or sold to the
Adviser, Sub-Adviser, the Trust's principal underwriter, or
any affiliated person of either the Trust, Adviser, the
Sub-Adviser or the principal underwriter, acting as principal
in the transaction, except to the extent permitted by the
Securities and Exchange Commission ("SEC") and the 1940 Act.
(d) The Sub-Adviser shall maintain all books and records with
respect to transactions involving the Assets required by
subparagraphs (b)(5), (6), (7), (9), (10) and (11) and
paragraph (f) of Rule 31a-1 under the 1940 Act. The
Sub-Adviser shall provide to the Adviser or the Board of
Trustees such periodic and special reports, balance sheets or
financial information, and such other information with regard
to its affairs as the Adviser or Board of Trustees may
reasonably request.
The Sub-Adviser shall keep the books and records relating to
the Assets required to be maintained by the Sub-Adviser under
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 a Portfolio required by Rule 31a-1 under the 1940
Act. The Sub-Adviser shall also furnish to the Adviser any
other information relating to the Assets that is required to
be filed by the Adviser or the Trust with the SEC or sent to
shareholders under the 1940 Act (including the rules adopted
thereunder) or any exemptive or other relief that the Adviser
or the Trust obtains from the SEC. The Sub-Adviser agrees that
all records that it maintains on behalf of a Portfolio are
property of the Portfolio and the Sub-Adviser will surrender
promptly to the Portfolio any of such records upon the
Portfolio's request; provided, however, that the Sub-Adviser
may retain a copy of such records. In addition, for the
duration of this Agreement, the Sub-Adviser shall 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 this Agreement, and shall transfer said records to any
successor sub-adviser upon the termination of this Agreement
(or, if there is no successor sub-adviser, to the Adviser).
(e) The Sub-Adviser shall provide each 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.
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(f) 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.
(g) The Sub-Adviser shall promptly notify the Adviser of any
financial condition that is likely to impair the Sub-Adviser's
ability to fulfill its commitment under this Agreement.
(h) The Sub-Adviser shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in
relation to the Assets in accordance with such proxy voting
guidelines or other direction that may be provided by the
Adviser or a Portfolio from time to time. The Adviser shall
instruct the custodian and other parties providing services to
the Portfolio to promptly forward all proxies to the
Sub-Adviser.
(i) Except as specifically permitted in writing by the Adviser, or
as otherwise permitted or required to comply with the
requirements of the 1940 Act (including the rules adopted
thereunder), the Sub-Adviser shall not consult with any other
sub-adviser to the Trust or a Portfolio concerning the
purchase, retention or disposition of Assets.
2. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to each Portfolio
pursuant to the Management Agreement and shall oversee and review the
Sub-Adviser's performance of its duties under this Agreement; provided,
however, that in connection with its management of the Assets, nothing
herein shall be construed to relieve the Sub-Adviser of responsibility
for compliance with the Trust's Declaration of Trust (as defined
herein), the Prospectus, the instructions and directions of the Board
of Trustees of the Trust, the requirements of the 1940 Act, the
Internal Revenue Code of 1986, and all other applicable federal and
state laws and regulations, as each is amended from time to time.
3. DELIVERY OF DOCUMENTS. The Adviser has furnished the Sub-Adviser with
copies properly certified or authenticated of each of the following
documents:
(a) The Trust's Agreement and Declaration of Trust, as filed with
the Secretary of State of the 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, herein
called the "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) Prospectus(es) of each Portfolio.
4. COMPENSATION TO THE SUB-ADVISER. For the services to be provided by the
Sub-Adviser pursuant to this Agreement, the Adviser will pay the
Sub-Adviser, and the Sub-Adviser agrees to accept as full compensation
therefor, a sub-advisory fee at the rate specified on Schedule A, which
is attached hereto and made part of this Agreement. The fee will be
calculated based on the average monthly market value of the Assets
under the Sub-Adviser s management and will be paid to the Sub-Adviser
monthly. Except as may otherwise be prohibited by law or regulation
(including any then current SEC staff interpretation), the Sub-Adviser
may, in its discretion and from time to time, waive a portion of its
fee. Sub-Adviser shall not be responsible for expenses and costs of a
Portfolio's operations payable by a Portfolio or the Adviser.
5. INDEMNIFICATION. The Sub-Adviser shall indemnify and hold harmless the
Adviser from and against any and all claims, losses, liabilities or
damages (including reasonable attorney's fees
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and other related expenses) caused by or otherwise directly related to
the Sub-Adviser's own willful misfeasance, bad faith or gross
negligence, or to the reckless disregard of its duties under this
Agreement.
6. DURATION AND TERMINATION. This Agreement shall become effective upon
its approval by the Trust's Board of Trustees and by the vote of a
majority of the outstanding voting securities of each Portfolio. 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 with respect to a
Portfolio (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 Sub-Adviser, or (c) by the Sub-Adviser at any time,
without the payment of any penalty, on 90 days' written notice to the
Adviser. This Agreement shall terminate automatically and immediately
in the event of its assignment, or in the event of a termination of the
Adviser's agreement with the Trust. 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 SEC under the 1940 Act.
7. GOVERNING LAW. This Agreement shall be governed by the internal laws of
the Commonwealth of Pennsylvania, without regard to conflict of law
principles; provided, however, that nothing herein shall be construed
as being inconsistent with the 1940 Act.
8. SEVERABILITY. 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.
9. NOTICE. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by
registered, certified or overnight mail, postage prepaid addressed by
the party giving notice to the other party at the last address
furnished by the other party:
To the Adviser at: Constellation Investment Management Company, LP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
To the Sub-Adviser at: Xxxxxx Investment Partners, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
10. AMENDMENT. No provision of this Agreement may be changed, waived,
discharged or terminated orally unless in an instrument in writing
signed by the party against which enforcement is sought, and no
material amendments of this Agreement shall be effective with respect
to a Portfolio unless approved by a vote of a majority of the
outstanding securities of such Portfolio.
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11. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between 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.
12. MISCELLANEOUS. A copy of the Declaration of Trust is on file with the
Secretary of State of the State of Delaware, and notice is hereby given
that the obligations of this instrument are not binding upon any of the
Trustees, officers or shareholders of the Portfolio or the Trust. 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 SEC,
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.
CONSTELLATION INVESTMENT MANAGEMENT XXXXXX INVESTMENT PARTNERS, INC.
COMPANY, LP
By: _______________________________ By: _______________________________
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
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SCHEDULE A
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
BETWEEN
CONSTELLATION INVESTMENT MANAGEMENT COMPANY, LP
AND
XXXXXX INVESTMENT PARTNERS, INC.
Pursuant to Article 4, the Adviser shall pay the Sub-Adviser compensation at an
annual rate as follows:
PORTFOLIO FEE (IN BASIS POINTS)
Small Cap Core Portfolio 0.50% of the average daily net assets
MidCap Core Portfolio 0.45% of the average daily net assets
MidCap Growth Portfolio 0.45% of the average daily net assets
