Exhibit (g)(3)
XXXXX XXXXX TAX-MANAGED BUY-WRITE OPPORTUNITIES FUND
INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT effective this 18th day of April, 2005 between Xxxxx Xxxxx Management,
a Massachusetts business trust (the "Adviser"), and Parametric Portfolio
Associates, LLC., a Delaware corporation (the "Sub-Adviser").
WHEREAS, Xxxxx Xxxxx Tax-Managed Buy-Write Opportunities Fund (the "Trust") is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), as a closed-end, management investment company; and
WHEREAS, pursuant to an Investment Advisory Agreement, dated April 18, 2005 (the
"Advisory Agreement"), a copy of which has been provided to the Sub-Adviser, the
Trust has retained the Adviser to render advisory and management services with
regard to the Trust's investment strategy; and
WHEREAS, pursuant to authority granted to the Adviser in the Advisory Agreement,
the Adviser wishes to retain the Sub-Adviser to furnish investment advisory
services to the Trust related to the Trust's tax-managed investment strategy,
and the Sub-Adviser is willing to furnish such services to the Trust and the
Adviser.
NOW, THEREFORE, in consideration of the premises and the promises and mutual
covenants herein contained, it is agreed between the Adviser and the Sub-Adviser
as follows:
1. Appointment. The Adviser hereby appoints the Sub-Adviser to act as the
investment adviser for and to manage the investment and reinvestment of the
assets of the Trust related to the Trust's tax-managed investment strategy on
the terms set forth in this Agreement. The Sub-Adviser accepts such appointment
and agrees to furnish the services herein set forth herein for the compensation
herein provided.
2. Sub-Adviser Duties. Subject to the supervision of the Trust's Board of
Trustees (the "Board") and the Adviser, the Sub-Adviser will provide a
continuous investment program relating to the Trust's purchase or sale of
securities for the Trust's portfolio. Subject to approval of the Trust's Board
and notice to the Sub-Adviser, the Adviser retains complete authority
immediately to assume direct responsibility for any function delegated to the
Sub-Adviser under this Agreement. Subject to the foregoing, the Sub-Adviser will
provide a continuous program of investment evaluation, investment, sales, and
reinvestment of the Trust's assets by determining the investment strategy that
the Trust shall pursue, including which investments shall be purchased or sold
for the Trust. The Sub-Adviser will provide the services under this Agreement in
accordance with the Trust's investment objectives, policies, and restrictions as
stated in the Trust's Registration Statement filed with the Securities and
Exchange Commission ("SEC"), as amended (the "Registration Statement"), copies
of which shall be sent to the Sub-Adviser by the Adviser prior to the
commencement of this Agreement and promptly following any such amendment. The
Adviser and the Sub-Adviser further agree as follows:
a. Each of the Adviser and the Sub-Adviser will conform materially
with the 1940 Act and all rules and regulations thereunder, all other applicable
federal and state laws and regulations, with any applicable procedures adopted
by the Trust's Board of which the Sub-Adviser has been sent a copy, and the
provisions of the Registration Statement, of which the Sub-Adviser has received
a copy and with the Sub-Adviser's portfolio manager operating policies and
procedures as are approved by the Adviser. Each of the Adviser and the
Sub-Adviser shall exercise reasonable care in the performance of its duties
under the Agreement.
b. In connection with any purchase and sale of securities for the
Trust related to the implementation of the investment strategy developed by the
Sub-Adviser, the Sub-Adviser will arrange for the transmission to the custodian
for the Trust (the "Custodian") on a daily basis such confirmation, trade
tickets, and other documents and information, including, but not limited to,
Cusip, Cedel, or other numbers that identify investments to be purchased or sold
on behalf of the Trust, as may be reasonably necessary to enable the Custodian
to perform its administrative and recordkeeping responsibilities with respect to
the Trust. With respect to investments to be settled through the Trust's
Custodian, the Sub-Adviser will arrange for the prompt transmission of the
confirmation of such trades to the Trust's Custodian.
c. The Sub-Adviser will assist the Custodian in determining or
confirming, consistent with the procedures and policies stated in the
Registration Statement or adopted by the Board, the value of any investment or
other assets of the Trust for which the Sub-Adviser is responsible and for which
the Custodian seeks assistance from or identifies for review by the Sub-Adviser;
provided that the Sub-Adviser shall be responsible for determining in good
faith, consistent with the procedures and policies stated in the Registration
Statement or adopted by the Board, the fair value of the Trust's portfolio of
investment for which the Sub-Adviser is responsible and shall obtain at its own
expense pricing services for the Trust's portfolio of investment from Bloomberg,
or another pricing service to be mutually agreed. The parties acknowledge that
the Sub-Adviser is not a custodian of the Trust's assets and will not take
possession or custody of such assets.
d. Following the end of the Trust's semi-annual period and fiscal
year, the Sub-Adviser will assist the Adviser in preparing a letter to
shareholders containing a discussion of relevant investment factors in respect
of both the prior quarter and the fiscal year to date.
e. The Sub-Adviser will complete and deliver to the Adviser for each
quarter by the 5th business day of the following quarter a written compliance
checklist in a form provided by the Adviser relating to the performances of the
Sub-Adviser under this Agreement.
f. The Sub-Adviser will make available to the Trust and the Adviser,
promptly upon request, any of the Trust's investment records and ledgers
maintained by the Sub-Adviser (which shall not include the records and ledgers
maintained by the Custodian or portfolio accounting agent for the Trust) as are
necessary to assist the Trust and the Adviser to comply with requirements of the
1940 Act and the Investment Advisers Act of 1940, as amended (the "Advisers
Act"), and the rules under each, as well as other applicable laws. The
Sub-Adviser will furnish to regulatory authorities having the requisite
authority any information or reports in connection with such services in respect
to the Trust which may be requested by such authorities in order to ascertain
whether the operations of the Trust are being conducted in a manner consistent
with applicable laws and regulations.
g. The Sub-Adviser will provide reports to the Board for consideration
at meetings of the Board on the investment program for the Trust and the
investment purchased and sold for the Trust's portfolio, and will furnish the
Board with such periodic and special reports as the Board and the Adviser may
reasonably request.
2
h. The Sub-Adviser shall assure that the Trust complies with its
investment policies and restrictions as set forth in the Registration Statement.
3. Broker-Dealer Selection. The Sub-Adviser is authorized to make decisions
to buy and sell investment for the Trust's portfolio, and to select
broker-dealers and to negotiate brokerage commission rates in effecting the
Trust's investments. The Sub-Adviser's primary consideration in effecting an
investment on behalf of the Trust will be to obtain the best execution for the
Trust, taking into account the factors specified in the prospectus and/or
statement of additional information for the Trust, and determined in
consultation with the Adviser, which include price (including the applicable
brokerage commission or dollar spread), the size of the order, the nature of the
market for the security, the timing of the transaction, the reputation,
experience and financial stability of the broker-dealer involved, the quality of
the service, the difficulty of execution, and the execution capabilities and
operational facilities of the firm involved, and the firm's risk in positioning
a block of investment. Accordingly, the price to the Trust in any transaction
may be less favorable than that available from another broker-dealer if the
difference is reasonably justified, in the judgment of the Sub-Adviser in the
exercise of its fiduciary obligations to the Trust, by other aspects of the
portfolio execution services offered. The Sub-Adviser shall not receive any
research service from any broker-dealer or from any third party that is paid by
such broker-dealer in return for placing trades through such broker-dealer on
behalf of the Trust. The Sub-Adviser will consult with the Adviser to ensure
that portfolio transactions on behalf of the Trust are directed to
broker-dealers on the basis of criteria reasonably considered appropriate by the
Adviser. To the extent consistent with these standards, the Sub-Adviser is
further authorized to allocate the orders placed by it on behalf of the Trust to
an affiliated broker-dealer. Such allocation shall be in such amounts and
proportions as the Sub-Adviser shall determine consistent with the above
standards, and the Sub-Adviser will report on said allocation regularly to the
Trust's Board indicating the broker-dealers to which such allocations have been
made and the basis therefore.
4. Disclosure about Sub-Adviser. The Sub-Adviser has reviewed the most
recent Amendment to the Registration Statement that contains disclosure about
the Sub-Adviser, and represents and warrants that, with respect only to the
disclosure expressly concerning the Sub-Adviser, its business, operations, or
employees, such Registration Statement contains, as of the date hereof, no
untrue statement of any material fact and does not omit any statement of a
material fact which was required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading. The Sub-Adviser further represents and warrants that
it is a duly registered investment adviser under the Advisers Act and will
maintain such registration so long as this Agreement remains in effect. The
Adviser hereby acknowledges that it has received a copy of the Sub-Adviser's
Form ADV, Part II at least 48 hours prior to entering into this Agreement.
5. Expenses. During the term of this Agreement, the Sub-Adviser will pay
all expenses incurred by it and its staff and for their activities in connection
with its duties under this Agreement including, but not limited to, rental and
overhead expenses, expenses of the Sub-Adviser's personnel, pricing services in
accordance with Section 2, insurance of the Sub-Adviser and its personnel,
research services, and taxes of the Sub-Adviser.
6. Compensation. For the services provided to the Trust, the Adviser will
pay the Sub-Adviser an annual fee equal to the amount specified in Schedule A
hereto, payable monthly in arrears on the last business day of each month. The
fee will be appropriately prorated to reflect any portion of a calendar month
that this Agreement is not in effect among the parties. The Adviser is solely
responsible for the payment of fees to the Sub-Adviser, and the Sub-Adviser
agrees to seek payment of its fees solely from the Adviser. The Trust shall have
no liability for Sub-Adviser's fee hereunder.
3
7. Materials. During the term of this Agreement, the Adviser agrees to
furnish the Sub-Adviser at its principal office all prospectuses, proxy
statements, and reports to shareholders prepared for distribution to
shareholders of the Trust, all sales literature or advertisements for the Trust,
and all other communications with the public of the Trust, or the Adviser that
refer to the Sub-Adviser in any way. The Sub-Adviser's right to object to such
materials is limited to reasonable objections related to the portions of such
materials that expressly relate to the Sub-Adviser, its services and its
clients. The Adviser agrees to use its reasonable best efforts to ensure that
materials prepared by its employees or agents or its affiliates that refer to
the Sub-Adviser or its clients in any way are consistent with those materials
previously approved by the Sub-Adviser as referenced in the first sentence of
this paragraph.
8. Compliance.
a. As required by Rule 206(4)-7 under the Advisers Act, the
Sub-Adviser has adopted written policies and procedures reasonably designed to
prevent violation by it, or any of its supervised persons, of the Advisers Act
and the rules under the Advisers Act and all other laws and regulations relevant
to the performance of its duties under this Agreement. The Sub-Adviser has
designated a chief compliance officer responsible for administering these
compliance policies and procedures. The chief compliance officer at the
Sub-Adviser's expense shall provide such written compliance reports relating to
the operations and compliance procedures of the Sub-Adviser to the Adviser
and/or the Trust and their respective chief compliance officers as may be
required by law or regulation or as are otherwise reasonably requested.
Moreover, the Sub-Adviser agrees to use such other or additional compliance
techniques as the Adviser or the Board may reasonably adopt or approve,
including written compliance procedures.
b. The Sub-Adviser agrees that it shall promptly notify, if legally
permitted, the Adviser and the Trust (1) in the event that the SEC has censured
the Sub-Adviser; placed limitations upon its activities, functions or
operations; suspended or revoked its registration as an investment adviser;
commenced proceedings or an investigation (formally or informally) that may
result in any of these actions; or corresponded with the Sub-Adviser on a
non-routine basis concerning either the Sub-Adviser's performances under this
Agreement or any other matter that might materially affect the ability of the
Sub-Adviser to perform its duties under this Agreement, including sending a
deficiency letter or raising issues about the business, operations, or practices
of the Sub-Adviser, (2) in the event of any notice of investigation,
examination, inquiry, audit or subpoena of the Sub-Adviser or any of its
officers or employees by any federal, state, municipal or other governmental
department, commission, bureau, board, agency or instrumentality. If legally
permitted, the Sub-Adviser will furnish the Adviser, upon request, copies of any
and all documents relating to the foregoing. The Sub-Adviser further agrees to
notify the Adviser and the Trust promptly of any material fact known to the
Sub-Adviser respecting or relating to the Sub-Adviser that is not contained in
the Registration Statement or prospectus for the Trust, or any amendment or
supplement thereto that is required to be so contained, or if any statement
contained therein concerning the Sub-Adviser that becomes untrue in any material
respect.
c. The Sub-Adviser will provide the Adviser with such reports,
presentations, certifications and other information as the Adviser may
reasonably request from time to time concerning the business and operations of
the Sub-Adviser in performing services hereunder or generally concerning the
Sub-Adviser's investment advisory services, the Sub-Adviser's compliance with
applicable federal, state and local law and regulations, and changes in the
Sub-Adviser's key personnel, investment strategies, policies and procedures, and
other matters that are likely to have a material impact on the Sub-Advisers
duties hereunder. The Adviser and the Trust shall provide the Sub-Adviser with
such reports as the Sub-Adviser may from time to time reasonably request
concerning their compliance with applicable federal, state and local law and
regulations.
4
9. Books and Records. The Sub-Adviser hereby agrees that all records which
it maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's or the
Adviser's request in compliance with the requirements of Rule 31a-3 under the
1940 Act, although the Sub-Adviser may, at its own expense, make and retain a
copy of such records. The Sub-Adviser further agrees to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-l under the 1940 Act.
10. Cooperation; Confidentiality; Proprietary Rights. Each party to this
Agreement agrees to cooperate with the other party and with all appropriate
governmental authorities having the requisite jurisdiction (including, but not
limited to, the SEC) in connection with any investigation or inquiry relating to
this Agreement or the Trust. Subject to the foregoing, the Sub-Adviser shall
treat as confidential and use only in connection with the Trust in accordance
with this Agreement all information pertaining to the Trust, actions of the
Trust or the Adviser. The parties acknowledge that any breach of the undertaking
in the immediately preceding sentence might result in immediate, irreparable
injury to another party and that, accordingly, equitable remedies, including ex
parte remedies, are appropriate in the event of any actual, apparent, or
threatened breach of such undertaking.
11. Control. Notwithstanding any other provision of the Agreement, it is
understood and agreed that the Trust shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to this
Agreement and has reserved the right to reasonably direct any action hereunder
taken on its behalf by the Sub-Adviser.
12. Liability.
a. Except as may otherwise be required by the 1940 Act or the rules
thereunder or other applicable law, the Adviser agrees that the Sub-Adviser, any
affiliated person of the Sub-Adviser, and each person, if any, who, within the
meaning of Section 15 of the Securities Act of 1933, as amended (the "1933
Act"), controls the Sub-Adviser shall not be liable for, or subject to, any
damages, expenses, or losses in connection with, any act or omission connected
with or arising out of any services rendered under this Agreement, except by
reason of willful misfeasance, bad faith, or negligence in the performance of
the Sub-Adviser's duties, or any breach by the Sub-Adviser of its obligations or
duties under this Agreement.
b. Except as may otherwise be required by the 1940 Act or the rules
thereunder or other applicable law, the Sub-Adviser agrees that the Adviser, any
affiliated person of the Adviser, and each person, if any, who, within the
meaning of Section 15 of the 1933 Act, controls the Adviser shall not be liable
for, or subject to, any damages, expenses, or losses in connection with, any act
or omission connected with or arising out of any services rendered under this
Agreement, except by reason of willful misfeasance, bad faith, or negligence in
the performance of the Adviser's duties, or any breach by the Adviser of its
obligations or duties under this Agreement.
13. Indemnification.
a. The Adviser agrees to indemnify and hold harmless the Sub-Adviser,
any affiliated person of the Sub-Adviser, and each person, if any, who, within
the meaning of Section 15 of the 1933 Act controls ("controlling person") the
Sub-Adviser (all of such persons being referred to as "Sub-Adviser Indemnified
Persons") against any and all losses, claims, damages, liabilities, or
litigation (including legal and other expenses) to which a Sub-Adviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, under any other statute, at common law or otherwise, arising out
of the Adviser's responsibilities to the Sub-Adviser which (1) may be based upon
5
the Adviser's gross negligence, willful misfeasance, or bad faith in the
performance of its duties, or by reason of the Adviser's disregard of its
obligations and duties under this Agreement and to the Trust, or (2) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or prospectus covering shares of the
Trust, or any amendment thereof or any supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, unless such
statement or omission was made in reliance upon and conformity with information
furnished by the Sub-Adviser to the Adviser or the Trust expressly for inclusion
in such Registration Statements, prospectuses, amendments, or supplements either
in writing or orally with a subsequent confirmation by the Sub-Adviser of the
information as it appears in the Registration Statement or prospectus; provided
however, that in no case shall the indemnity in favor of the Sub-Adviser
Indemnified Person be deemed to protect such person against any liability to
which such person would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of its duties, or by reason of
its breach or reckless disregard of its obligations or duties under this
Agreement.
b. Notwithstanding Section 12 of this Agreement, the Sub-Adviser
agrees to indemnify and hold harmless the Adviser, any affiliated person of the
Adviser, and any controlling person of the Adviser (all of such persons being
referred to as "Adviser Indemnified Persons") against any and all losses,
claims, damages, liabilities, or litigation (including legal and other expenses)
to which an Adviser Indemnified Person may become subject under the 1933 Act,
1940 Act, the Advisers Act, under any other statute, at common law or otherwise,
arising out of the Sub-Adviser's responsibilities as Sub-Adviser of the Trust
which (1) may be based upon the Sub-Adviser's gross negligence, willful
misfeasance, or bad faith in the performance of its duties, or by reason of the
Sub-Adviser's disregard of its obligations or duties under this Agreement, or
(2) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or prospectus covering the
shares of the Trust, or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact known or which should have
been known to the Sub-Adviser and was required to be stated therein or necessary
to make the statements therein not misleading, if such a statement or omission
was made in reliance upon and conformity with information furnished by the
Sub-Adviser to the Adviser or the Trust expressly for inclusion in such
Registration Statements, prospectuses, amendments, or supplements either in
writing or orally with a subsequent confirmation by the Sub-Adviser of the
information as it appears in the Registration Statement or prospectus; provided,
however, that in no case shall the indemnity in favor of an Adviser Indemnified
Person be deemed to protect such person against any liability to which such
person would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence in the performance of its duties, or by reason of its breach or
reckless disregard of its obligations and duties under this Agreement.
6
c. The Adviser shall not be liable under Paragraph (a) of this Section
13 with respect to any claim made against a Sub-Adviser Indemnified Person
unless such Sub-Adviser Indemnified Person shall have notified the Adviser in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Sub-Adviser Indemnified Person (or after such Sub-Adviser Indemnified Person
shall have received notice of such service on any designated agent), but failure
to notify the Adviser of any such claim shall not relieve the Adviser from any
liability which it may have to the Sub-Adviser Indemnified Person against whom
such action is brought except to the extent the Adviser is prejudiced by the
failure or delay in giving such notice. In case any such action is brought
against the Sub-Adviser Indemnified Person, the Adviser will be entitled to
participate, at its own expense, in the defense thereof or, after notice to the
Sub-Adviser Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Sub-Adviser Indemnified Person. If the Adviser assumes the
defense of any such action and the selection of counsel by the Adviser to
represent the Adviser and the Sub-Adviser Indemnified Person would result in a
conflict of interests and therefore, would not, in the reasonable judgment of
the Sub-Adviser Indemnified Person, adequately represent the interests of the
Sub-Adviser Indemnified Person, the Adviser will, at its own expense, assume the
defense with counsel to the Adviser and, also at its own expense, with separate
counsel to the Sub-Adviser Indemnified Person, which counsel shall be
satisfactory to the Adviser and to the Sub-Adviser Indemnified Person. The
Sub-Adviser Indemnified Person shall bear the fees and expenses of any
additional counsel retained by it, and the Adviser shall not be liable to the
Sub-Adviser Indemnified Person under this Agreement for any legal or other
expenses subsequently incurred by the Sub-Adviser Indemnified Person
independently in connection with the defense thereof other than reasonable costs
of investigation; provided however, the Adviser shall be responsible for the
additional counsel of Sub-Adviser in the event the Adviser is determined to have
made the fraudulent representations, by the final decision of a court of
competent jurisdiction (that is not subject to appeal or as to which the time
for appeal has elapsed), and such representations are the basis for which
Sub-Adviser's liability is based. The Adviser shall not have the right to
compromise on or settle the litigation without the prior written consent of the
Sub-Adviser Indemnified Person if the compromise or settlement results, or may
result in a finding of wrongdoing on the part of the Sub-Adviser Indemnified
Person.
d. The Sub-Adviser shall not be liable under Paragraph (b) of this
Section 13 with respect to any claim made against an Adviser Indemnified Person
unless such Adviser Indemnified Person shall have notified the Sub-Adviser in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Adviser Indemnified Person (or after such Adviser Indemnified Person shall have
received notice of such service on any designated agent), but failure to notify
the Sub-Adviser of any such claim shall not relieve the Sub-Adviser from any
liability which it may have to the Adviser Indemnified Person against whom such
action is brought except to the extent the Sub-Adviser is prejudiced by the
failure or delay in giving such notice. In case any such action is brought
against the Adviser Indemnified Person, the Sub-Adviser will be entitled to
participate, at its own expense, in the defense thereof or, after notice to the
Adviser Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Adviser Indemnified Person. If the Sub-Adviser assumes the
defense of any such action and the selection of counsel by the Sub-Adviser to
represent both the Sub-Adviser and the Adviser Indemnified Person would result
in a conflict of interests and therefore, would not, in the reasonable judgment
of the Adviser Indemnified Person, adequately represent the interests of the
Adviser Indemnified Person, the Sub-Adviser will, at its own expense, assume the
defense with counsel to the Sub-Adviser and, also at its own expense, with
separate counsel to the Adviser Indemnified Person, which counsel shall be
7
satisfactory to the Sub-Adviser and to the Adviser Indemnified Person. The
Adviser Indemnified Person shall bear the fees and expenses of any additional
counsel retained by it, and the Sub-Adviser shall not be liable to the Adviser
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Adviser Indemnified Person independently in
connection with the defense thereof other than reasonable costs of
investigation. The Sub-Adviser shall not have the right to compromise on or
settle the litigation without the prior written consent of the Adviser
Indemnified Person if the compromise or settlement results, or may result in a
finding of wrongdoing on the part of the Adviser Indemnified Person.
14. Duration and Termination.
a. This Agreement shall become effective on the date first indicated
above, subject to the condition that the Trust's Board, including a majority of
those Trustees who are not interested persons (as such term is defined in the
0000 Xxx) of the Adviser or the Sub-Adviser, and the Holders of Interests in the
Trust, shall have approved this Agreement in the manner required by the 1940
Act. Unless terminated as provided herein, this Agreement shall remain in full
force and effect through and including April 18, 2007 and shall continue in full
force and affect indefinitely thereafter, but only so long as such continuance
is specifically approved at least annually by (a) the Board, or by the vote of a
majority of the outstanding voting securities (as defined in the 0000 Xxx) of
the Trust, and (b) the vote of a majority of those Trustees who are not
interested persons (as such term is defined in the 0000 Xxx) of any such party
to this Agreement cast in person at a meeting called for the purpose of voting
on such approval.
b. Notwithstanding the foregoing, this Agreement may be terminated:
(a) by the Adviser at any time without payment of any penalty, upon 60 days'
prior written notice to the Sub-Adviser and the Trust; (b) at any time without
payment of any penalty by the Trust, by the Trust's Board or a majority of the
outstanding voting securities of the Trust, upon 60 days' prior written notice
to the Adviser and the Sub-Adviser, or (c) by the Sub-Adviser upon 3 months'
prior written notice unless the Trust or the Adviser requests additional time to
find a replacement for the Sub-Adviser, in which case the Sub-Adviser shall
allow the additional time requested by the Trust or Adviser not to exceed 3
additional months beyond the initial three-month notice period; provided,
however, that the Sub-Adviser may terminate this Agreement at any time without
penalty, effective upon written notice to the Adviser and the Trust, in the
event either the Sub-Adviser (acting in good faith) or the Adviser ceases to be
registered as an investment adviser under the Advisers Act or otherwise becomes
legally incapable of providing investment management services pursuant to its
respective contract with the Trust.
c. In the event of termination for any reason, all records of the
Trust shall promptly be returned to the Adviser or the Trust, free from any
claim or retention of rights in such record by the Sub-Adviser, although the
Sub-Adviser may, at its own expense, make and retain a copy of such records.
This Agreement shall automatically terminate in the event of its assignment (as
such term is described in the 1940 Act). In the event this Agreement is
terminated or is not approved in the manner described above, the Sections or
Paragraphs numbered 9, 10, 11, 12, and 13 of this Agreement shall remain in
effect, as well as any applicable provision of this Section 14 and, to the
extent that only amounts are owed to the Sub-Adviser as compensation for
services rendered while the agreement was in effect, Section 6.
15. Notices. Any notice must be in writing and shall be sufficiently given
(1) when delivered in person, (2) when dispatched by electronic mail or
electronic facsimile transfer (confirmed in writing by postage prepaid first
class air mail simultaneously dispatched), (3) when sent by internationally
recognized overnight courier service (with receipt confirmed by such overnight
courier service), or (4) when sent by registered or certified mail, to the other
party at the address of such party set forth below or at such other address as
such party may from time to time specify in writing to the other party.
8
If to the Trust:
Xxxxx Xxxxx Tax-Managed Buy-Write Opportunities Fund
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Legal Officer
If to the Adviser:
Xxxxx Xxxxx Management
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Legal Officer
If to the Sub-Adviser:
Parametric Portfolio Associates, LLC.
0000 Xxxxxxxx Xxxxxx X.
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
16. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved as required by applicable law.
17. Miscellaneous.
a. This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the SEC
thereunder, and without regard for the conflicts of laws principles thereof. The
term "affiliate" or "affiliated person" as used in this Agreement shall mean
"affiliated person" as defined in Section 2(a)(3) of the 0000 Xxx.
b. The Adviser and the Sub-Adviser acknowledge that the Trust enjoys
the rights of a third-party beneficiary under this Agreement, and the Adviser
acknowledges that the Sub-Adviser enjoys the rights of a third party beneficiary
under the Advisory Agreement.
c. The Sub-Adviser expressly acknowledges the provision in the
Declaration of Trust of the Adviser limiting the personal liability of the
Trustee and officers of the Adviser, and the Sub-Adviser hereby agrees that it
shall have recourse to the Adviser for payment of claims or obligations as
between the Adviser and the Sub-Adviser arising out of this Agreement and shall
not seek satisfaction from the Trustee or any officer of the Adviser.
d. The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions hereof or otherwise affect
their construction or effect.
9
e. To the extent permitted under Section 14 of this Agreement, this
Agreement may only be assigned by any party with the prior written consent of
the other party. This Agreement shall terminate upon its assignment, and for
purposes of this section the term "assignment" shall have the meaning assigned
to it in the 1940 Act.
f. 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, and to this extent, the provisions of this
Agreement shall be deemed to be severable.
g. Nothing herein shall be construed as constituting the Sub-Adviser
as an agent or co-partner of the Adviser, or constituting the Adviser as an
agent or co-partner of the Sub-Adviser.
h. This Agreement may be executed in counterparts.
i. The Sub-Adviser shall not be responsible for any failure to perform
its duties under this Agreement as a result of war, acts of terrorism, natural
disasters, failures of electricity, telephone lines, and other utility services,
closures of securities and investment markets, and other events beyond the
reasonable control of the Sub-Adviser provided the Sub-Adviser has maintained
contingency procedures reasonably designed, where possible, to prevent and
mitigate the effect of such events.
[Signature page follows.]
10
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
XXXXX XXXXX MANAGEMENT
By: /s/ Xxxxxxxxx X. Marius
---------------------------------------
Name: Xxxxxxxxx X. Marius
Vice President, and not individually
PARAMETRIC PORTFOLIO ASSOCIATES, LLC.
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxxx
President
11
SCHEDULE A
Annual Investment Sub-Advisory Fee
0.25% of Assets under Management
The Trust's daily net assets shall be computed in accordance with the
Declaration of Trust of the Trust and any applicable votes and determinations of
the Board of the Trust.
12
