EXHIBIT 5.2
SUB-ADVISORY AGREEMENT
This SUB-ADVISORY AGREEMENT (the "Agreement") is entered
into effective as of the _____ day of _______________, 1997, by
and between XXXXXX ASSOCIATES, INC., a Delaware corporation
("Xxxxxx") and PERKINS, WOLF, XXXXXXXXX & COMPANY, a Delaware
corporation ("PWM").
WHEREAS, Xxxxxx has entered into an Investment Advisory
Agreement (the "Advisory Agreement") with Xxxxxx Omni Investment
Trust, a Massachusetts business trust (the "Trust") and an open-
end, management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), with
respect to the Xxxxxx Small Cap Value Fund, a series of the Trust
(the "Fund") pursuant to which Xxxxxx has agreed to provide
investment advisory services with respect to the Fund; and
WHEREAS, PWM is engaged in the business of rendering
investment advisory services and is registered as an investment
adviser under the Investment Advisers Act of 1940, as amended
(the "Advisers Act"); and
WHEREAS, Xxxxxx desires to retain PWM to furnish investment
advisory services with respect to the Fund, and PWM is willing to
furnish such services;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Duties of PWM. Xxxxxx hereby engages the services
of
------------- PWM as subadviser in furtherance of
the Advisory Agreement. PWM agrees to perform the following
duties, subject to the oversight of Xxxxxx and to the overall
control of the officers and the Board of Trustees (the
"Trustees") of the Trust:
(a) PWM shall manage the investment operations
of the Fund and the composition of its investment portfolio,
shall determine without prior consultation with the Trust or
Xxxxxx, what securities and other assets of the Fund will be
acquired, held, disposed of or loaned, and shall direct Xxxxxx
with respect to the execution of trades in connection with such
determinations, in conformity with the investment objectives,
policies and restrictions and the other statements concerning the
Fund in the Trust's declaration of trust, as amended from time to
time (the "Declaration of Trust"), bylaws and registration
statements under the 1940 Act and the Securities Act of 1933, as
amended (the "1933 Act"), the Advisers Act, the rules thereunder
and all other applicable federal and state laws and regulations,
and the provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), applicable to the Fund as a regulated
investment company;
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(b) PWM shall cause its officers to attend
meetings and furnish oral or written reports, as the Trust or
Xxxxxx may reasonably require, in order to keep Xxxxxx, the
Trustees and appropriate officers of the Trust fully informed as
to the condition of the investment portfolio of the Fund, the
investment decisions of PWM, and the investment considerations
which have given rise to those decisions;
(c) PWM shall maintain all books and records
required to be maintained by PWM pursuant to the 1940 Act, the
Advisers Act, and the rules and regulations promulgated
thereunder, as the same may be amended from time to time, with
respect to transactions on behalf of the Fund, and shall furnish
the Trustees and Xxxxxx with such periodic and special reports as
the Trustees or Xxxxxx reasonably may request. PWM hereby agrees
that all records which it maintains for the Fund or the Trust are
the property of the Trust, agrees to permit the reasonable
inspection thereof by the Trust or its designees and agrees to
preserve for the periods prescribed under the 1940 Act and the
Advisers Act any records which it maintains for the Trust and
which are required to be maintained under the 1940 Act and the
Advisers Act, and further agrees to surrender promptly to the
Trust or its designees any records which it maintains for the
Trust upon request by the Trust; and
(d) At such times as shall be reasonably
requested by the Trustees or Xxxxxx, PWM shall provide the
Trustees and Xxxxxx with economic, operational and investment
data and reports, including without limitation all information
and materials reasonably requested by or requested to be
delivered to the Trustees of the Trust pursuant to Section 15(c)
of the 1940 Act, and shall make available to the Trustees and
Xxxxxx any economic, statistical and investment services normally
available to similar investment company clients of PWM.
(e) PWM will provide to Xxxxxx for regulatory
filings and other appropriate uses materially accurate and
complete information relating to PWM as may reasonably be
requested by Xxxxxx from time to time and, notwithstanding
anything herein to the contrary, PWM shall be liable to Xxxxxx
for all damages, costs and expenses, including without limitation
reasonable attorneys' fees (hereinafter referred to collectively
as "Damages"), incurred by Xxxxxx as a result of any material
inaccuracies or omissions in such information provided by PWM to
Xxxxxx; provided, however, that PWM shall not be liable to the
extent that any Damages are based upon inaccuracies or omissions
made in reliance upon information furnished to PWM by Xxxxxx.
2. Further Obligations. In all matters relating to the
------------------- performance of this Agreement,
PWM shall act in conformity with the Trust's Declaration of
Trust, bylaws and currently effective registration statements
under the 1940 Act and the 1933 Act and any amendments or
supplements thereto (the "Registration Statements") and with the
written policies, procedures and guidelines of the Fund, and
written instructions and directions of the Trustees and Xxxxxx
and shall comply with the requirements of the 1940 Act, the
Advisers Act, the rules thereunder, and all other applicable
federal and state laws and regulations. Xxxxxx agrees to provide
to PWM copies of the Trust's Declaration of Trust, bylaws,
Registration Statement, written policies, procedures and
guidelines and written instructions and directions of the
Trustees and Xxxxxx, and
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any amendments or supplements to any of them at, or, if
practicable, before the time such materials become effective.
3. Obligations of Xxxxxx. Xxxxxx shall have the
following
--------------------- obligations under this
Agreement:
(a) To keep PWM continuously and fully informed
(or cause the custodian of the Fund's assets to keep PWM so
informed) as to the composition of the investment portfolio of
the Fund and the nature of all of the Fund's assets and
liabilities from time to time;
(b) To furnish PWM with a certified copy of any
financial statement or report prepared for the Fund by certified
or independent public accountants and with copies of any
financial statements or reports made to the Fund's shareholders
or to any governmental body or securities exchange;
(c) To furnish PWM with any further materials or
information which PWM may reasonably request to enable it to
perform its function under this Agreement; and
(d) To compensate PWM for its services in
accordance with the provisions of Section 4 hereof.
4. Compensation.
------------
(a) Except as set forth in Section 4(b) hereof,
Xxxxxx shall pay to PWM for its services under this Agreement a
fee, payable in United States dollars, at an annual rate of 0.90%
of the first $75,000,000 of average daily net assets of the Fund,
0.50% of the next $125,000,000 of average daily net assets of the
Fund and 0.20% on any part of the average daily net assets of the
Fund in excess of $200,000,000. Such fee shall be computed and
accrued daily and payable monthly as of the last day of each
month during which or part of which this Agreement is in effect.
For the month during which this Agreement becomes effective and
the month during which it terminates, however, there shall be an
appropriate proration of the fee payable for such month based on
the number of calendar days of such month during which this
Agreement is effective.
(b) Notwithstanding any provision in Section
4(a) hereof to the contrary, in the event this Agreement
continues in effect, pursuant to Section 8, for more than four
years from the date first set forth above, the fee payable by
Xxxxxx to PWM after such four-year period for PWM's services
under this Agreement shall be at an annual rate of 0.50% of the
first $200,000,000 of average daily net assets of the Fund and
0.20% of the average daily net assets of the Fund in excess of
$200,000,000.
5. Expenses and Excluded Expenses. PWM shall pay all
its
------------------------------ own costs and
expenses incurred in rendering the services required under this
Agreement.
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6. Representations of PWM. PWM hereby represents,
---------------------- warrants and covenants to
Xxxxxx as follows:
(a) PWM: (i) is registered as an investment
adviser under the Advisers Act and will continue to be so
registered for so long as this Agreement remains in effect; (ii)
is not prohibited by the 1940 Act or the Advisers Act from
performing the services contemplated by this Agreement; (iii) has
met, and will continue to meet for so long as this Agreement
remains in effect, any other applicable federal or state
requirements, or the applicable requirements of any regulatory or
industry self-regulatory organization necessary to be met in
order to perform the services contemplated by this Agreement;
(iv) has the legal and corporate authority to enter into and
perform the services contemplated by this Agreement; and (v) will
immediately notify Xxxxxx of the occurrence of any event that
would disqualify PWM from serving as an investment adviser of an
investment company pursuant to Section 9(a) of the 1940 Act or
otherwise, and of the institution of any administrative,
regulatory or judicial proceeding against PWM that could have a
material adverse effect upon PWM's ability to fulfill its
obligations under this Agreement.
(b) PWM has adopted a written code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act
and will provide Xxxxxx with a copy of such code of ethics,
together with evidence of its adoption. Within 45 days after the
end of the last calendar quarter of each year that this Agreement
is in effect, the president or a vice president of PWM shall
certify to Xxxxxx that PWM has complied with the requirements of
Rule 17j-1 during the previous year and that there has been no
violation of PWM'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 Xxxxxx, PWM shall permit
Xxxxxx, its employees or its agents to examine the reports
required to be made to PWM by Rule 17j-1(c)(1) and all other
records relevant to PWM's code of ethics.
(c) PWM has provided Xxxxxx with a copy of its
Form ADV as most recently filed with the U.S. Securities and
Exchange Commission ("SEC") and will, promptly after filing any
amendment to its Form ADV with the SEC, furnish a copy of such
amendment to Xxxxxx.
(d) PWM will notify Xxxxxx of any change in the
identity or control of its shareholders owning a 10% or greater
interest in PWM, or any change that would constitute a change in
control of PWM under the 1940 Act, prior to any such change if
PWM is aware, or should be aware, of any such change, but in any
event as soon as any such change becomes known to PWM.
7. Representations of Xxxxxx. Xxxxxx hereby
represents,
------------------------- warrants and covenants to
PWM as follows:
(a) Xxxxxx: (i) is registered as an investment
adviser under the Advisers Act and will continue to be so
registered for so long as this Agreement remains in effect; (ii)
is not prohibited by the 1940 Act or the Advisers Act from
fulfilling its obligations under this Agreement; (iii) has met,
and will continue to meet for so long as this Agreement remains
in
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effect, any other applicable federal or state requirements, or
the applicable requirements of any regulatory or industry self-
regulatory organization necessary to be met in order to fulfill
its obligations under this Agreement; (iv) has the legal and
corporate authority to enter into and perform this Agreement; and
(v) will immediately notify PWM of the occurrence of any event
that would disqualify Xxxxxx from serving as an investment
adviser of an investment company pursuant to Section 9(a) of the
1940 Act or otherwise, and of the institution of any
administrative, regulatory or judicial proceeding against Xxxxxx
that could have a material adverse effect upon Xxxxxx'x ability
to fulfill its obligations under this Agreement.
(b) Xxxxxx has adopted a written code of ethics
complying with the requirements of Rule 17j-1 under the 1940 Act
and will provide PWM with a copy of such code of ethics, together
with evidence of its adoption.
(c) Xxxxxx has provided PWM with a copy of its
Form ADV as most recently filed with the U.S. Securities and
Exchange Commission ("SEC") and will, promptly after filing any
amendment to its Form ADV with the SEC, furnish a copy of such
amendment to PWM.
(d) Xxxxxx will notify PWM of any change in the
identity or control of its shareholders owning a 10% or greater
interest in Xxxxxx, or any change that would constitute a change
in control of Xxxxxx under the 1940 Act, prior to any such change
if Xxxxxx is aware, or should be aware, of any such change, but
in any event as soon as any such change becomes known to Xxxxxx.
8. Term. This Agreement shall become effective as of
the
---- date first set forth above and shall continue
in effect until April 30, 1998, unless sooner terminated in
accordance with its terms, and shall continue in effect from year
to year thereafter for a period of three years or longer only so
long as such continuance is specifically approved at least
annually by the vote of a majority of the Trustees of the Trust
who are not parties hereto or interested persons of the Trust,
Xxxxxx or PWM, cast in person at a meeting called for the purpose
of voting on the approval of the terms of such renewal, and by
either the Trustees of the Trust or the affirmative vote of a
majority of the outstanding voting securities of the Fund.
Xxxxxx shall use its best efforts consistent with the fiduciary
obligations of all parties to obtain such annual approvals of
this Agreement.
9. Termination. This Agreement may be terminated at
any
----------- time, without penalty, by the Trustees
or by the shareholders of the Fund acting by vote of at least a
majority of its outstanding voting securities, provided in any
such case that 60 days' advance written notice of termination be
given to PWM at its principal place of business. This Agreement
may also be terminated by Xxxxxx or the Trust: (i) upon a
material breach by PWM of any of the representations and
warranties set forth in Section 6 of this Agreement, if such
breach shall not have been cured within a 20-day period after
notice of such breach; or (ii) if PWM becomes unable to discharge
its duties and obligations under this Agreement. This Agreement
may be terminated by PWM at any time, without penalty: (i) by
giving 60 days' advance written notice of termination to Xxxxxx
and to the Trust, or (ii) upon a material breach by Xxxxxx of any
of the
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representations and warranties set forth in Section 7 of this
Agreement, if such breach shall not have been cured within a 20-
day period after notice of such breach. In addition, this
Agreement shall terminate, without penalty, upon the termination
of the Advisory Agreement.
10. Assignment. This Agreement shall automatically
---------- terminate in the event of its assignment.
11. Amendments. This Agreement may be amended by the
---------- parties only in a written instrument
signed by the parties to this Agreement and only if such
amendment is specifically approved (i) by a majority of the
Trustees, including a majority of the Trustees who are not
interested persons of the Trust or Xxxxxx, PWM or their
affiliates, and (ii) if required by applicable law, by the
affirmative vote of a majority of the outstanding voting
securities of the Fund.
12. Limitation on Personal Liability. NOTICE IS HEREBY
-------------------------------- GIVEN that the
Trust is a business trust organized under the laws of the
Commonwealth of Massachusetts pursuant to a Declaration of Trust
filed in the Office of the Secretary of State of the Commonwealth
of Massachusetts. The parties hereto acknowledge and agree that
the Trust is a series trust and all debts, liabilities,
obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable
against the assets held with respect to such series only, and not
against the assets of the Trust generally or against the assets
held with respect to any other series and further that no
Trustee, officer or holder of shares of beneficial interest of
the Trust shall be personally liable for any of the foregoing.
13. Limitation of Liability of PWM. Xxxxxx will not
seek
------------------------------ to hold PWM, and PWM
shall not be, liable for any error of judgment or mistake of law
or for any loss arising out of any investment or for any act or
omission taken with respect to the Fund, except for willful
misfeasance, bad faith or gross negligence in the performance of
its duties, or by reason of reckless disregard of its obligations
and duties hereunder and except to the extent otherwise provided
by law. As used in this section, "PWM" shall include any
affiliate of PWM performing services for the Fund contemplated
hereunder and directors, officers and employees of PWM and such
affiliates.
14. Activities of PWM. The services of PWM hereunder
are
----------------- not to be deemed to be exclusive,
and PWM is free to render services to other parties, so long as
its services under this Agreement are not materially adversely
affected or otherwise impaired thereby. Nothing in this
Agreement shall limit or restrict the right of any director,
officer or employee of PWM 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 or a
dissimilar nature. It is understood that Trustees, officers and
shareholders of the Trust are or may become interested in PWM as
directors, officers and shareholders of PWM, that directors,
officers, employees and shareholders of PWM are or may become
similarly interested in the Trust, and that PWM may become
interested in the Trust as a shareholder or otherwise.
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15. Third Party Beneficiary. The parties expressly
----------------------- acknowledge and agree that
the Trust is a third party beneficiary of this Agreement and that
the Trust shall have the full right to xxx upon and enforce this
Agreement in accordance with its terms as if it were a signatory
hereto.
16. Notices. Any notice or other communication required
to
------- be given pursuant to this Agreement shall be
deemed duly given if delivered personally or by overnight
delivery service or mailed by certified or registered mail,
return receipt requested and postage prepaid, or sent by
facsimile addressed to the parties at their respective addresses
set forth below, or at such other address as shall be designated
by any party in a written notice to the other party.
(a) To Xxxxxx at:
Xxxxxx Associates, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) To PWM at:
Perkins, Wolf, XxXxxxxxx & Company
00 X. Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Xx., Esq.
Xxxxxxxxx Xxxxxxx Xxxxxxx Weary & Xxxxxxxx
X.X.
0000 Xxxx Xxxxxx, Xxxxx 0000
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Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) To the Trust at:
Xxxxxx Omni Investment Trust
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
17. Certain Definitions. As used in this Agreement, the
------------------- terms "vote of a majority of the
outstanding voting securities," "assignment," "approved at least
annually," and "interested persons" shall have the respective
meanings specified in the 1940 Act, as now in effect or hereafter
amended, and the rules and regulations thereunder, subject to
such orders, exemptions and interpretations as may be issued by
the SEC under the 1940 Act and as may be then in effect. Where
the effect of a requirement of the federal securities laws
reflected in any provision of this Agreement is made less
restrictive by a rule, regulation, order, interpretation or other
authority of the SEC, whether of special or general application,
such provision shall be deemed to incorporate the effect of such
rule, regulation, order, interpretation or other authority.
18. Governing Law. This Agreement shall be construed in
------------- accordance with the laws of the State
of Colorado (without giving effect to the conflicts of laws
principles thereof) and the 1940 Act. To the extent that the
applicable laws of the State of Colorado conflict with the
applicable provisions of the 1940 Act, the latter shall control.
19. Miscellaneous. The headings in this Agreement are
------------- included for convenience of reference
only and in no way define or limit any of the provisions thereof
or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made 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.
20. Counterparts. This Agreement may be executed in two
or
------------ more counterparts, each of which shall
be deemed an originally, but all of which taken together shall
constitute one
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and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized officers designated below
as of the day and year first above written.
XXXXXX
ASSOCIATES, INC.
By:________________________________
Xxxxxx X.
Xxxxx
President
PERKINS, WOLF,
XXXXXXXXX & COMPANY
By:________________________________
Xxxxxxx X.
Xxxx
President
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