SUB-ADVISORY AGREEMENT
Exhibit
EX-99.d.8
THIS
SUB-ADVISORY AGREEMENT is made as of the 31st
day of
March, 2005 (“Contract”), among Hillview Investment Trust II, a Delaware
statutory
trust
(“Trust”), Hillview Capital Advisors, LLC (“Adviser”), a limited liability
company organized under the laws of the State of Delaware
and
Pinnacle Associates, LTD, a registered
investment adviser
organized under the laws of the State of New York (“Sub-Adviser”).
WHEREAS,
the Adviser has entered into an Interim
Investment
Management Contract
dated
March 31, 2005
(“Management Agreement”)
with
the Trust, an open-end management investment company registered under the
Investment Company Act of 1940, as amended (“1940 Act”),
and
anticipates entering into a final investment management agreement with the
Trust
upon shareholder approval of such agreement on or before August 26,
2005;
and
WHEREAS,
The International Alpha Fund (“Fund”) is a series of the Trust; and
WHEREAS,
under the Management Agreement,
the
Adviser has agreed to provide certain investment advisory and administrative
services to the Fund; and
WHEREAS,
the Adviser is authorized under the Management Agreement
to
delegate its investment advisory responsibilities to one or more persons or
companies; and
WHEREAS,
the Sub-Adviser is willing to furnish such services to the Adviser and the
Fund;
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein
contained, Trust, Adviser and the Sub-Adviser agree as follows:
1. Appointment.
The Trust hereby appoints and employs the Sub-Adviser as a discretionary
portfolio manager, on the terms and conditions set forth herein, of those assets
of the Fund which the Adviser determines to assign to the Sub-Adviser (those
assets being referred to as the “Fund Account”). The Sub-Adviser’s
responsibility for providing portfolio management services to the Fund shall
be
limited to the Fund Account. The Adviser may, from time to time, make additions
to and withdrawals, including cash and cash equivalents, from the Fund Account.
2. Acceptance
of Appointment. The Sub-Adviser accepts that appointment and agrees to render
the services herein set forth, for the compensation herein provided.
3. Duties
as
Sub-Adviser.
(a) Subject
to the supervision and direction of the Trust’s Board of Trustees (“Board”) and
of the Adviser, and all written guidelines adopted by the Trust or the Adviser
that are provided to the Sub-Adviser, the Sub-Adviser will provide a continuous
investment program
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with
respect to the Fund Account, including investment research and management for
all securities and investments and cash equivalents in the Fund Account. The
Sub-Adviser will determine from time to time what investments in the Fund
Account will be purchased, retained or sold by the Fund. The Sub-Adviser will
be
responsible for placing purchase and sell orders for investments and for other
related transactions with respect to the Fund Account. The Sub-Adviser will
provide services under this Contract in accordance with the Fund’s investment
objective, policies and restrictions and the description of its investment
strategy and style, all as stated in the Trust’s registration statement under
the 1940 Act, and any amendments or supplements thereto (“Registration
Statement”) of which the Sub-Adviser has notice. The Sub-Adviser shall not
consult with any other sub-adviser of the Fund concerning transactions for
the
Fund
in
securities or other assets.
(b) The
Sub-Adviser 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-Adviser may, in its discretion, use brokers (including brokers
that may be affiliates of the Sub-Adviser to the extent permitted by Section
3(c) hereof) who provide the Sub-Adviser with research, analysis, advice and
similar services to execute portfolio transactions, and the Sub-Adviser 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-Adviser’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-Adviser
to the Fund and its other clients and that the total commissions paid by the
Fund 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
the
Sub-Adviser, or any affiliated person thereof, except in accordance with the
federal securities laws and the rules and regulations thereunder. Whenever
the
Sub-Adviser 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-Adviser,
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. The Adviser
recognizes that in some cases this procedure may adversely affect the results
obtained for the Fund.
(c) The
Sub-Adviser will not execute without the prior written approval of the Adviser
any portfolio transactions for the Fund Account with a broker which is (i)
an
affiliated person of the Trust, including the Adviser or any Sub-Adviser for
any
Fund of the Trust; (ii) a principal underwriter of the Fund's shares; or (iii)
an affiliated person of such an affiliated person or principal underwriter.
The
Adviser agrees that it will provide the Sub-Adviser with a list of such brokers
and dealers and will, from time to time, update such list as
necessary.
(d) The
Sub-Adviser 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 actions by the Sub-Adviser on behalf of the Fund, and will
furnish the Board and the Adviser with such periodic and special reports as
the
Board or the Adviser reasonably may request. In compliance with the requirements
of Rule 31a-3 under the 1940 Act, the Sub-Adviser 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 a
complete set of any records that it maintains for the Fund upon request by
the
Trust.
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(e) All
transactions will be consummated by payment to or delivery by the custodian
designated by the Trust (the “Custodian”), or such depositories or agents as may
be designated by the Custodian in writing, of all cash and/or securities due
to
or from the Fund Account, and the Sub-Adviser shall not have possession or
custody thereof. The Sub-Adviser shall advise the Custodian and confirm in
writing to the Trust and to the Adviser or any other designated agent of the
Fund all investment orders for the Fund Account placed by it with brokers and
dealers at the time and in the manner set forth in Rule 31a-1 under the 1940
Act. For purposes of the foregoing sentence, communication to the Custodian
via
DTC is acceptable. The Trust shall issue to the Custodian such instructions
as
may be appropriate in connection with the settlement of any transaction
initiated by the Sub-Adviser. The Trust shall be responsible for all custodial
arrangements and the payment of all custodial charges and fees, and, upon giving
proper instructions to the Custodian, the Sub-Adviser shall have no
responsibility or liability with respect to custodial arrangements or the acts,
omissions or other conduct of the Custodian, except that it shall be the
responsibility of the Sub-Adviser to communicate it to the Adviser if the
Custodian fails to confirm in writing proper execution of the
instructions.
(f) At
such
times as shall be reasonably requested by the Board or the Adviser, the
Sub-Adviser will provide the Board and the Adviser with economic and investment
analyses and reports as well as quarterly reports setting forth the performance
of the Fund Account and make available to the Board and Adviser any economic,
statistical and investment services that the Sub-Adviser normally makes
available to its institutional or other customers.
(g) In
accordance with procedures adopted by the Board, as amended from time to time,
the Sub-Adviser is responsible for assisting in the fair valuation of all
portfolio securities and will use its reasonable efforts to arrange for the
provision of valuation information or a price(s) from a party(ies) independent
of the Sub-Adviser for each portfolio security for which the custodian does
not
obtain prices in the ordinary course of business from an automated pricing
service.
4. Further
Duties. In all matters relating to the performance of this Contract, the
Sub-Adviser will act in conformity with the Trust’s Declaration of Trust,
By-Laws and Registration Statement of which it has received notice and with
the
written instructions and written directions of the Board and the Adviser; 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, and all other
federal and state laws and regulations applicable to the Trust and the Fund.
The
Adviser agrees to provide to the Sub-Adviser copies of the Trust’s Declaration
of Trust, By-Laws, Registration Statement, written instructions and directions
of the Board and the Adviser, and any amendments or supplements to any of these
materials as soon as practicable after such materials become
available.
5. Proxies.
The Sub-Adviser will vote all proxies solicited by or with respect to issuers
of
securities in which assets of the Fund Account may be invested from time to
time. At the request of the Sub-Adviser, the Adviser shall provide the
Sub-Adviser with its or the Trust’s recommendations as to the voting of such
proxies. The Adviser shall instruct the Custodian to forward or cause to be
forwarded to the Sub-Adviser all relevant proxy solicitation
materials.
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6. Expenses.
During the term of this Contract, the Sub-Adviser will bear all expenses
incurred by it in connection with its services under this Contract other than
the cost of securities (including brokerage commissions, transactional fees
and
taxes, if any) purchased for the Fund. The Fund shall be responsible for its
expenses.
7. Compensation.
The compensation of the Sub-Adviser for its services under this Contract shall
be calculated and paid by the Trust in accordance with the attached Schedule
A.
8. Limitation
of Liability. The Sub-Adviser 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 the Adviser 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.
9. Indemnification.
(a) The
Adviser and the Trust shall indemnify the Sub-Adviser or any of its directors,
officers, employees or affiliates for all losses, damages, liabilities, costs
and expenses (including legal) (“Losses”) as they are incurred by the
Sub-Adviser by reason of or arising out of any act or omission by the Adviser
or
Trust under this Agreement, or any breach of warranty, representation or
agreement hereunder, except to the extent that such Losses arise as a result
of
the negligence of the Sub-Adviser or the Sub-Adviser’s breach of fiduciary duty
to the Adviser or the Trust.
(b) The
Sub-Adviser shall indemnify the Adviser or any of its directors, officers,
employees or affiliates for all losses, damages, liabilities, costs and expenses
(including legal) (“Losses”) as they are incurred by the Adviser by reason of or
arising out of any act or omission by the Sub-Adviser under this Agreement,
or
any breach of warranty, representation or agreement hereunder, except to the
extent that such Losses arise as a result of the negligence of the Adviser
or
the Adviser’s breach of fiduciary duty to the Sub-Adviser.
(c) The
Sub-Adviser shall indemnify the Trust or any of its directors, officers,
employees or affiliates for all losses, damages, liabilities, costs and expenses
(including legal) (“Losses”) as they are incurred by the Trust by reason of or
arising out of any act or omission by the Sub-Adviser under this Agreement,
or
any breach of warranty, representation or agreement hereunder, except to the
extent that such Losses arise as a result of the negligence of the Trust or
the
Trust’s breach of fiduciary duty to the Sub-Adviser.
10. Representations,
Warranties and Agreements of the Trust. The Trust represents, warrants and
agrees that:
(a) Each
of
the Adviser and the Sub-Adviser has been duly appointed by the Board of Trustees
of the Trust to provide investment services to the Fund Account as contemplated
hereby.
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(b) The
Trust
will deliver to the Sub-Adviser a true and complete copy of the Fund’s
Registration Statement as effective from time to time and such other documents
or instruments governing the investment of the Fund Account and such other
information as is necessary for the Sub-Adviser to carry out its obligations
under this Contract.
(c) The
Trust
is currently in compliance and shall at all times continue to comply with the
requirements imposed upon the Trust by applicable law and
regulations.
11. Representations
of Adviser. The Adviser represents, warrants and agrees that:
(a) The
Adviser has been duly authorized by the Board of Trustees of the Trust to
delegate to the Sub-Adviser the provision of investment services to the Fund
Account as contemplated hereby.
(b) The
Adviser is currently in compliance and shall at all times continue to comply
with the requirements imposed upon the Adviser by applicable law and
regulations.
12. Representations
of Sub-Adviser. The Sub-Adviser represents, warrants and agrees as
follows:
(a) The
Sub-Adviser (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, the Advisers Act or other law,
regulation or order 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 Adviser of the
occurrence of any event that would disqualify the Sub-Adviser from serving
as an
investment adviser of an investment company pursuant to Section 9(a) of the
1940
Act or otherwise. The Sub-Adviser will also immediately notify the Fund and
the
Adviser if it 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 Fund.
(b) The
Sub-Adviser has adopted a written code of ethics complying with the requirements
of Rule 17j-1 under the 1940 Act and will provide the Adviser and the Board
with
a copy of such code of ethics, together with evidence of its adoption. Within
forty-five days of the end of the last calendar quarter of each year that this
Contract is in effect, the president, Chief Operating Officer or a
vice-president of the Sub-Adviser shall certify to the Adviser that the
Sub-Adviser has complied with the requirements of Rule 17j-1 during the previous
year and that there has been no violation of the Sub-Adviser’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 the Adviser, the
Sub-Adviser shall permit the Adviser, its employees or its agents to examine
the
reports required to be made to the Sub-Adviser by Rule 17j-1(c)(1) and all
other
records relevant to the Sub-Adviser’s code of ethics.
(c) The
Sub-Adviser has provided the Trust and the Adviser with a copy of its Form
ADV,
which as of the date of this Agreement is its Form ADV as most recently filed
with the
5
Securities
and Exchange Commission (“SEC”) and promptly will furnish a copy of all
amendments to the Trust and the Adviser at least annually. Such amendments
shall
reflect all changes in the Sub-Adviser’s organizational structure, professional
staff or other significant developments affecting the Sub-Adviser, as required
by the Investment Advisers Act of 1940.
(d) The
Sub-Adviser will notify the Trust and the Adviser of any change of control
of
the Sub-Adviser, including any change of its general partners, controlling
persons or 25% shareholders, as applicable, and any changes in the key personnel
who are either the portfolio manager(s) of the Fund Account or senior management
of the Sub-Adviser, in each case prior to, or promptly after, such change.
The
Sub-Adviser agrees to bear all reasonable expenses of the Fund, if any, arising
out of such change in control.
(e) The
Sub-Adviser agrees to maintain an appropriate level of errors and omissions
or
professional liability insurance coverage.
(f) The
Sub-Adviser agrees that neither it, nor any of its affiliates, will in any
way
refer directly or indirectly to its relationship with the Trust, the Fund,
the
Adviser or any of their respective affiliates in offering, marketing or other
promotional materials without the express written consent of the Adviser.
However, the Sub-Adviser may use the performance of the Fund Account in its
composite performance.
13. Services
Not Exclusive. The services furnished by the Sub-Adviser hereunder are not
to be
deemed to be exclusive, and the Sub-Adviser shall be free to furnish similar
services to others, except as prohibited by applicable law or agreed upon in
writing among the Sub-Adviser, the Fund and the Adviser.
14. Confidentiality.
Subject to the duty of the Sub-Adviser and the Adviser to comply with applicable
law, including any demand of any regulatory or taxing authority having
jurisdiction, the parties hereto shall treat as confidential all material non
public information pertaining to the Fund Account and the actions of the
Sub-Adviser, the Adviser and the Fund in respect thereof. Unless such use is
required by law, the Adviser and the Trust may not use Sub-Adviser’s name,
investment performance information, other descriptive biographical information
about the Sub-Adviser or its personnel, or other pertinent information regarding
the Sub-Adviser in offering documents for the Fund, and in marketing or
advertising materials relating to the Fund, the Trust or the Adviser, without
consent of the Sub-Adviser, which will not be unreasonably
withheld.
15. Duration
and Termination.
(a) This
Contract shall become effective upon the date first above written, provided
that
this Contract shall not take effect unless it has first been approved 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, cast in person at a meeting
called for the purpose of voting on such approval. Adviser shall provide
Sub-Adviser with verification that such approval has occurred.
(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
6
specifically
approved at least annually: (i) 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, 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. Adviser shall provide Sub-Adviser with
verification that such approvals have occurred.
(c) Notwithstanding
the foregoing, this Contract may be terminated by any party hereto at any time,
without the payment of any penalty, immediately upon written notice to the
other
parties hereto in the event of material breach of any provision thereof by
the
party so notified if such breach shall not have been cured within a 20-day
period after notice of such breach; or otherwise, by any party upon thirty
(30)
days written notice to the other parties hereto. The Agreement may also be
terminated immediately if, in the reasonable judgment of the Trust or the
Adviser, the Sub-Adviser becomes unable to discharge its duties and obligations
under this Contract, including circumstances such as financial insolvency of
the
Sub-Adviser or other circumstances that could adversely affect the Fund. This
Contract will terminate automatically in the event of its assignment or upon
termination of any
future investment management agreement entered into between the Adviser and
the
Trust
as it
relates to the Fund.
This
Contract shall not terminate upon termination of the Management Agreement
defined herein..
16. 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 shall be effective until
approved (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.
17. Trust
and Shareholder Liability.
The
Adviser and Sub-Adviser are hereby expressly put on notice of the limitation
of
shareholder liability as set forth in the Declaration of Trust of the Trust
and
agree that obligations assumed by the Trust pursuant to this Agreement shall
be
limited in all cases to the Trust and its assets, and if the liability relates
to one or more series, the obligations hereunder shall be limited to the
respective assets of the Fund. The Adviser and Sub-Adviser further agree that
they shall not seek satisfaction of any such obligation from the shareholders
or
any individual shareholder of the Fund, nor from the Trustees or any individual
Trustee of the Trust.
18. 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.
19. 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
7
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
such rule, regulation or order. This Contract and the Schedule(s) attached
hereto embody the entire agreement and understanding among the parties. This
Contract may be signed in counterpart.
20. Notices.
Any
notice herein required is to be in writing and is deemed to have been given
to
the Sub-Adviser or Adviser 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 Adviser will be sent to the attention
of Xxx Xxxxxxx. All notices provided to the Sub-Adviser will be sent to the
attention of Xxxx Xxxxxx.
[rest
of
page left intentionally blank]
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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.
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on
behalf of
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HILLVIEW
ALPHA FUND
|
|
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000
Xxx Xxxxx Xxxxxxxx
|
|
|
Xxxxxxx,
Xxxxxxxxxxxx 00000
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|
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Attest:
|
|
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By:
/s/ Xxxxxx X. Xxxxxxx
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By:
/s/
Xxxxx X. Xxxxxxx
|
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Name:
Xxxxxx X. Xxxxxxx
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Name:
Xxxxx X. Xxxxxxx
|
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Title:
Secretary & Treasurer
|
Title:
President
|
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HILLVIEW
CAPITAL ADVISORS, LLC
|
|
|
|
|
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000
Xxx Xxxxx Xxxxxxxx
|
|
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Xxxxxxx,
Xxxxxxxxxxxx 00000
|
|
|
Attest:
|
|
|
By:
/s/ Xxxxxx X. Xxxxxxx
|
By:
/s/ Xxxxx X. Xxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxx
|
Name:
Xxxxx X. Xxxxxxx
|
|
Title:
Secretary & Treasurer
|
Title:
President
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PINNACLE
ASSOCIATES, LTD.
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000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Attest:
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|
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By:
/s/ Xxxx Xxxxxx
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By:
/s/ Xxxxxx Xxxxxxxxxx
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Name:
Xxxx Xxxxxx
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Name:
Xxxxxx Xxxxxxxxxx
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Title:
Compliance Officer
|
Title:
Portfolio Manager
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9
Exhibit
A
Sub-Advisory
Fees
This
Exhibit A contains the sub-advisory fee information required by Section 7 of
the
Sub-Advisory Agreement among Hillview Investment Trust II (“Trust”), Hillview
Capital Advisors, LLC (“Adviser”) and Pinnacle Associates, Ltd (“Sub-Adviser”)
relating to the International Alpha Fund series (“Fund”) of the
Trust.
Fee
Schedule.
Fees
payable to the Sub-Adviser pursuant to this Contract shall be payable within
ten
days after receipt by the Trust of the Sub-Adviser’s xxxx after the end of each
calendar quarter for services rendered during the prior quarter (or billing
period, if less than a calendar quarter). The fees are calculated as of the
close of trading on the last business day of the calendar quarter by applying
the applicable fee rate to the average daily assets of the Fund allocated to
the
Sub-Adviser for that period. For purposes of calculating the fee, the value
of
the Fund’s assets shall be determined in the same manner as that which the Fund
uses to determine the net asset value of its shares. The applicable annualized
fee rate shall be:
.90%
on
the first $15 million of market value
.675%
on
the next $15 million of market value
.45%
on
any balance over $30 million
