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EXHIBIT (d)(4)
SUB-ADVISORY CONTRACT
This SUB-ADVISORY CONTRACT (the "Agreement") is made as of ________,
2001, between U.S. BANCORP XXXXX XXXXXXX ASSET MANAGEMENT, INC., a Delaware
corporation that is registered with the Securities and Exchange Commission
("SEC") as an investment adviser under the Investment Advisers Act of 1940, as
amended (the "Subadviser"), and XXXXXXX ASSET MANAGEMENT, INC., a Michigan
corporation and registered investment adviser under the Investment Advisers Act
of 1940, as amended (the "Adviser").
RECITALS:
X. Xxxxxxx Investments, a Massachusetts business trust (the "Trust"),
an open-end management investment company registered under the Investment
Company Act of 1940, as amended ("1940 Act"), has registered shares of
beneficial interest in its series known as the "Xxxxxxx Government Money Market
Fund" (the "Money Market Fund") under the Securities Act of 1933 amended ("1933
Act").
B. The Trust has retained the Adviser to render investment advisory and
portfolio management services to the Money Market Fund pursuant to an Advisory
Agreement, dated May 20, 1996 (the "Management Agreement").
C. The Adviser desires at this time to retain the Subadviser to render
investment advisory and portfolio management services for the Money Market Fund,
and the Subadviser is willing to provide such services.
In consideration of the foregoing and the mutual promises and covenants
contained herein, the parties agree as follows:
1. Appointment. The Adviser hereby appoints the Subadviser, and the
Subadviser accepts the appointment, to manage the investment and reinvestment of
the assets of the Money Market Fund for the period and on the terms set forth
herein.
2. Delivery of Documents. The Adviser has furnished Subadviser with
copies of each of the following
(a) the Trust's Declaration of Trust, as filed with the Secretary of
State of the Commonwealth of Massachusetts on July 20, 1993, and all
amendments thereto;
(b) the Trust's Bylaws and all amendments thereto;
(c) the resolutions of the Trust's Board of Trustees and the
shareholders of the Fund authorizing the appointment of Subadviser and
approving this Agreement;
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(d) the most recent Post-Effective Amendment to the Trust's
Registration Statement on Form N-1A pursuant to which the Trust has
registered the shares of the Fund under the 1933 Act, including the
Prospectus and the Statement of Additional Information relating to the
Fund (which are collectively referred to herein as the "Prospectus");
and
(e) the Trust's Notification of Registration under the 1940 Act as
filed with the SEC.
The Adviser will furnish Subadviser from time to time with copies of all
amendments of or supplements to the foregoing.
3. Management. The Subadviser will: (i) manage the investment and
reinvestment of the Fund's assets in accordance with the applicable investment
objectives, policies and limitations set forth in the Fund's Prospectus; (ii) be
subject to the supervision of the Adviser and the Trust's Board of Trustees;
(iii) place orders for the purchase or sale of securities for the Fund's account
with brokers or dealers selected by the Subadviser; and (iv) provide compliance
monitoring with respect to Rule 2a-7 of the 1940 Act and Subchapter M of the
Internal Revenue Code of 1986, as amended. The Subadviser is authorized as the
agent of the Fund to give instructions to the Custodian of the Fund as to the
deliveries of securities and payments of cash for the account of the Fund. The
Subadviser shall have access to such reports and records of the Fund it deems
necessary to perform it services hereunder.
Except as specifically stated in this Section 3, the Subadviser shall
not be responsible for providing (i) compliance monitoring, reporting or
testing; (ii) record maintenance or preparation; or (iii) accounting, tax or
other services to the Fund.
In connection with the selection of brokers or dealers and the placing
of orders, the Subadviser will seek for the Fund best execution of orders. The
Subadviser shall not be deemed to have acted unlawfully or to have breached any
duty, created by this Agreement or otherwise solely by reason of its having
caused the Fund to pay a broker or dealer an amount of commission for effecting
a securities transaction in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction, if the Subadviser
determined in good faith that the charges are reasonable in view of any research
or other services provided to the Subadviser by such broker or dealer.
4. Compensation of the Subadviser. For the services to be provided by
the Subadviser hereunder, the Adviser will pay to the Subadviser at the end of
each calendar month, an investment advisory and management fee, computed daily
and payable monthly, at an annual rate of 0.10% of the first $250,000,000 of
average net assets of the Fund, and at an annual rate of 0.08% of the average
net assets of the Fund in excess of $250,000,000. For the month and year in
which this Agreement becomes effective or terminates, there shall be an
appropriate proration on the basis of the number of days that the Agreement is
in effect during the month and year, respectively. The services of the
Subadviser under this Agreement are not to be deemed exclusive, and the
Subadviser shall be free to render similar services or other services to others.
5. Calculation of Net Asset Value. The Subadviser shall assist the
Adviser in calculating the market value of all portfolio securities held on
behalf of the Fund as of 3:00 p.m.,
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Central Time, on each day that the New York Stock Exchange and the Federal
Reserve Bank of Chicago are open for business, and as of such other time or
times as the Adviser may determine in accordance with the provisions of the 1940
Act and the policies and procedures established from time to time by the Board
of Trustees of the Trust. On each day when net asset value is not calculated,
the net asset value of a share of any class of the Fund's shares shall be deemed
to be the net asset value of such a share as of the last day on which such
calculation was made for the purpose of the foregoing computations.
6. Limitation on Subadviser Liability. The Subadviser shall not be
liable for any error of judgment or of law or for any loss suffered by the Fund
in connection with the matters to which this Agreement relates, except loss
resulting from willful misfeasance, bad faith or gross negligence on the part of
the Subadviser in the performance of its obligations and duties or by reason of
its reckless disregard of its obligations and duties under this Agreement.
7. Duration and Termination. This Agreement shall become effective with
respect to the Fund on the date that it is approved by the shareholders of the
Money Market Fund following its approval by the Board of Trustees of the Trust
in accordance with the 1940 Act and the rules and regulations of the SEC
thereunder, and shall remain in full force until the second anniversary of such
effective date, unless sooner terminated as hereinafter provided. This Agreement
shall continue in force from year-to-year thereafter with respect to the Money
Market Fund, but only as long as such continuance is specifically approved at
least annually in the manner required by the 1940 Act and the rules and
regulations of the SEC thereunder; provided, however, that if the continuation
of this Agreement is not approved for the Money Market Fund, the Subadviser may
continue to serve in such capacity in the manner and to the extent permitted by
the 1940 Act and the rules and regulations thereunder.
This Agreement shall automatically terminate in the event of its
assignment or in the event that the Management Agreement is terminated for any
reason. In addition, this Agreement may be terminated at any time with respect
to the Money Market Fund or any other series of the Trust which hereafter become
subject to this Agreement without the payment of any penalty by the Adviser or
by the Subadviser on not less than sixty (60) days' prior written notice by one
party to the other party. The Trust may effect termination with respect to the
Money Market Fund or any other series, without payment of any penalty, by action
of the Board of Trustees or by vote of majority of the outstanding voting
securities of the Money Market Fund or any such other series on sixty (60) days'
written notice to the Adviser and the Subadviser.
This Agreement may be terminated with respect to the Money Market Fund
or any such other series at any time, without prior written notice and without
the payment of any penalty, by the Board of Trustees of the Trust, by vote of a
majority of the outstanding voting securities of the Money Market Fund or such
other series, or by the Adviser, in the event that it shall have been
established by a court of competent jurisdiction that the Subadviser or any
officer or director of the Subadviser has taken any action which results in a
breach of the covenants of the Subadviser set forth herein.
The terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the meanings set forth in the 1940 Act and the
rules and regulations thereunder.
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Termination of this Agreement shall not affect the right of the
Subadviser to receive payments on any unpaid balance of the compensation
described in Section 4 earned prior to such termination.
8. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder
shall not be thereby affected.
9. Notices. Any notice under this Agreement shall be in writing,
addressed and delivered or mailed, postage prepaid, to the other party at such
address as such other party may designate for the receipt of such notice.
10. Governing Law. This Agreement shall be construed in accordance with
applicable federal law and the laws of the State of Illinois.
11. Amendment. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by a written instrument signed on
behalf of each of the parties.
12. Entire Agreement. This Agreement is the entire contract between the
parties relating to the subject matter hereof and supersedes all prior
agreements between the parties relating to the subject matter hereof.
IN WITNESS WHEREOF, the Adviser and the Subadviser have caused this
Agreement to be executed as of the day and year first above written.
XXXXXXX ASSET MANAGEMENT, INC.
By______________________________________
Xxxx X. Xxxxxxxx, Chairman
U.S. BANCORP XXXXX XXXXXXX ASSET MANAGEMENT, INC.
By:______________________________________
Its:_____________________________________
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