Exhibit 77(Q1)(e)
SUBADVISORY CONTRACT
AGREEMENT made as of the 29th day of March, 1999 by and between
M&I Investment Management Corp., an investment adviser registered under
the Investment Advisers Act of 1940, organized under the laws of
Wisconsin and having its principal place of business in Milwaukee,
Wisconsin (the "Adviser"), and BPI Global Asset Management, LLP, a
limited liability partnership organized under the laws of Delaware (the
"Subadviser").
WITNESSETH:
WHEREAS, Xxxxxxxx Funds, Inc. (the "Corporation") is an open-
end, management investment company, registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), the Corporation has
eleven (11) Portfolios including the Xxxxxxxx International Stock Fund
(the "Fund") and the Subadviser is an investment adviser registered
under the Investment Advisers Act of 1940 (the "Advisers Act"), and
WHEREAS, pursuant to authority granted the Adviser by the
Corporation's Directors and pursuant to the provisions of the Investment
Advisory Contract dated October 1, 1992 between the adviser and the
Corporation with respect to the Fund (the "Advisory Contract"), the
Adviser has selected the Subadviser to act as a sub-investment adviser
of the Fund and to provide certain other services, as more fully set
forth below, and to perform such services under the terms and conditions
hereinafter set forth,
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, it is agreed as follows:
1. The Subadviser's Services.
(a) Within the framework of the fundamental policies,
investment objectives, and investment restrictions of the Fund, and
subject to the supervision and review of the Adviser and of
the Directors of the Corporation, the Subadviser shall have
the sole and exclusive responsibility for the making and
execution of all investment decisions for that portion or
all of the Fund's portfolio as designated by the Adviser
(the "Portfolio"), including the purchase, retention and
disposition of securities, in accordance with the Fund's
investment objectives, policies and restrictions as stated
in the Corporation's Registration Statement, including the
Prospectus and Statement of Additional Information (such
Registration Statement, as currently in effect and as
amended or supplemented from time to time, collectively
called the "Prospectus") and subject to the following
understandings:
(i) The Subadviser shall supervise the Portfolio's
investments and determine from time to time what
securities will be purchased, retained, sold or loaned
by the Portfolio, and what portion of the assets will
be invested or held uninvested as cash.
(ii) In performance of its duties and obligations
under this Agreement, the Subadviser shall act in conformity
with the Corporation's Articles of Incorporation and
By-Laws and the Fund's Prospectus and with the
instructions and directions received in writing from
the Adviser or the Directors of the Corporation and
will conform to and comply with the requirements of
the 1940 Act, the Internal Revenue Code of 1986, as
amended (including the requirements for qualification
as a regulated investment company) and all other
applicable federal and state laws and regulations.
(b) The Subadviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to
the Fund, except as otherwise provided herein or as may be
necessary for the Subadviser to supply to the Adviser, the
Corporation or its Directors the information required to be
supplied under this Contract.
The Subadviser shall maintain separate books and
detailed records of all matters pertaining to the Fund and the
Portfolio (the "Fund's Books and Records"), including
without limitation a daily ledger of such assets and
liability relating thereto and brokerage and other records
of all securities transactions. The Subadviser shall also
require that its Access Persons (as defined in the
Corporation's Code of Ethics) provide the Subadviser with
monthly reports of their personal securities transactions.
The Fund's Books and Records shall be available by overnight
delivery of copies or for telecopying without delay to the
Adviser during any day that the Fund is open for business,
upon reasonable notice to the Subadviser.
(c) The Subadviser shall determine the securities to
be purchased or sold by the Fund in respect of the Portfolio
and will place orders with or through such persons, brokers
or dealers to carry out the policy with respect to brokerage
as set forth in the Fund's Prospectus or as the Directors
may direct from time to time. Subject to the provisions of
the following paragraph, the Subadviser will take reasonable
steps to assure that Portfolio transactions are effected at
the best price and execution available, as such phrase is
sued in the Fund's Prospectus, as in effect from time to
time.
In using its best efforts to obtain for the Fund
the most favorable price and execution available, the Subadviser,
bearing in mind the Fund's best interests at all times,
shall consider all factors it deems relevant, including by
way of illustration, price, the size of the transaction, the
nature of the market for the security, the amount of the
commission, the timing of the transaction taking into
account market prices and trends, the reputation, experience
and financial stability of the broker or dealer involved and
the quality of service rendered by the broker or dealer in
other transactions. Subject to such policies as the
Directors of the Corporation may determine, the Subadviser
is specifically authorized to allocate brokerage business to
firms that provide such services or facilities and to cause
the Fund to pay a member of a securities exchange or any
other securities broker or dealer an amount of commission
for effecting a securities transaction in excess of the
amount of commission another member of an exchange, broker,
or dealer would have charged for effecting that transaction,
if the Subadviser determines in good faith that such amount
of commission is reasonable in relation to the value of the
brokerage and research services (as such services are
defined in Section 28(e) of the Securities Exchange Act of
1934) provided by such member, broker, or dealer, viewed in
terms either of that particular transaction or the
Subadviser's overall responsibilities with respect to the
accounts as to which it exercises investment discretion.
Consistent with the foregoing paragraph, nothing in
this agreement is intended to inhibit the Subadviser's selection
of broker-dealers used to execute trades for the Fund,
including trades placed with broker-dealers who provide
investment research services to the Subadviser. Such
research services may include, but are not limited to,
advice provided either directly or through publications or
writings, including electronic publications, telephone
contacts and personal meetings with security analysts,
economists and corporate and industry spokespersons, and
analyses and reports concerning issues, industries,
securities economic factors and trends, accounting and tax
law interpretations and political developments. Research so
provided is in addition to and not in lieu of the services
required to be performed by the Subadviser.
It is understood that the Subadviser may have advisory,
management, service or other contracts with other
individuals or entities, and may have other interests and
businesses. When a security proposed to be purchased or
sold for the Fund is also being purchased or sold for other
accounts managed by the Subadviser at the same time, the
Subadviser shall make such purchases or sales on a pro-rata,
rotating or other equitable basis so as to avoid any one
account being systematically preferred over any other
account.
The Subadviser will advise the Adviser and, if instructed
by the Adviser, the Fund's custodian or sub-custodians on a
prompt basis each day by electronic telecommunication of
each confirmed purchase and sale of a Portfolio security
specifying the name of the issuer, the full description of
the security including its class, and amount or number of
shares of the security purchase or sold, the market price,
commission, government charges and gross or net price, trade
date, settlement date and identity of the clearing broker.
Under no circumstances may the Subadviser or any affiliates
of the Subadviser act as a principal in a securities
transaction with the Fund or any other investment company
managed by the Adviser unless (i) permitted by an exemptive
provision, rule or order under the 1940 Act and (ii) upon
obtaining prior approval of the securities transaction from
the Adviser. Any such transactions shall be reported
quarterly to the Corporation's Directors.
(d) From time to time as the Adviser or the Directors
of the Corporation may reasonably request, the Subadviser shall
furnish to the Adviser and to each of the Corporation's
Directors reports of Portfolio transactions and reports on
securities held in the Portfolio, all in such detail as the
Adviser or the Directors may reasonably request. The
Subadviser will also promptly inform the Adviser and the
Corporation's Directors of changes in investment strategy or
tactics or in key personnel.
It shall be the duty of the Subadviser to furnish
to the Corporation's Directors such information as may reasonably
be necessary in order for such Directors to evaluate this
Contract or any proposed amendments thereto for the purpose
of casting a vote pursuant to Section 8 or 9 hereof.
2. Allocation of Charges and Expenses. The Subadviser
will bear its own costs of providing services hereunder. Other than
as specifically indicated herein the Subadviser shall not be responsible
for the Corporation's or the Adviser's expenses, including, without
limitation, the expenses of organizing the Corporation and continuing
its existence; fees and expenses of Directors and officers of the
Corporation; fees for investment advisory services and administrative
personnel and services; expenses incurred in the distribution of its
shares ("Shares"), including expenses of administrative support
services, fees and expenses of preparing and printing its Registration
Statements under the Securities Act of 1933 and the 1940 Act, and any
amendments thereto, expenses of registering and qualifying the
Corporation, the Fund and Shares of the Fund under federal and state
laws and regulation; expenses of preparing, printing and distributing
prospectuses (and any amendments thereto) to shareholders, interest
expense taxes, fees and commissions of every kind, expenses of issue
(including cost of Share certificates), purchase, repurchase and
redemption of Shares including expenses attributable to a program of
periodic issue, charges and expenses of custodians, transfer agents,
dividend disbursing agents, shareholder servicing agents and registrars,
printing and mailing costs, auditing, accounting and legal expenses;
reports to shareholders and governmental officers and commissions;
expenses of meetings of Directors and shareholders and proxy
solicitations in connection with such meetings; insurance expenses;
association membership dues and such nonrecurring items as may arise,
including all losses and liabilities incurred in administrating the
Corporation and the Fund. The Corporation or the Adviser, as the case
may be, shall reimburse the Subadviser for any such expenses or other
expenses of the Fund or the Adviser, as may be reasonably incurred by
such Subadviser on behalf of the Fund or the Adviser. The Subadviser
shall keep and supply to the Corporation and the Adviser adequate
records of all such expenses.
3. Information Supplied by the Adviser. The Adviser shall
provide the Subadviser with the Corporation's Articles of Incorporation
and By-Laws, the Fund's most current Prospectus and Statement of
Additional Information, and the Corporation's Code of Ethics and
instructions, policies and directions of the Directors of the
Corporation pertaining to the Adviser and the Fund, as in effect from
time to time; and the Subadviser shall have no responsibility for
actions taken in reliance on any such documents. The Adviser shall
promptly furnish to the Subadviser copies of all material amendments or
supplements to the foregoing documents.
4. Registration as an Adviser. The Adviser and the Subadviser
represent and warrant to each of the Corporation and each other that
they are registered as an "investment adviser" under the Advisers Act
and covenant that they will remain so registered for the duration of
this Contract.
5. Subadviser's Compensation. The Adviser shall pay to the
Subadviser, as compensation for the Subadviser's services hereunder
0.40% per annum of the Fund's average daily net assets ("Sub-Advisory
Fee"). Such fee shall be computed daily and paid monthly. The method
of determining net assets of the Fund for purposes hereof shall be the
same as the method of determining net assets for purposes of
establishing the offering and redemption price of Fund shares as
described in the Fund's Prospectus. If this Contract shall be effective
for only a portion of a month, the aforesaid fee shall be prorated for
the portion of such month during which this contract is in effect.
Notwithstanding any other provision of this Contract, the
Subadviser may from time to time agree not to impose all or any portion
of its fee otherwise payable hereunder (in advance of the time such fee
or portion thereof would otherwise accrue). Any such fee reduction may
be discontinued or modified by the Subadviser at any time.
6. Independent Contractor. In the performance of its duties
hereunder, the Subadviser is and shall be an independent contract and
unless otherwise expressly provided herein or otherwise authorized in
writing, shall have no authority to act for or represent the Corporation
in any way or otherwise be deemed to be an agent of the Corporation or
of the Adviser.
7. Sales Literature. The Adviser and Subadviser acknowledge
that all sales literature for investment companies (such as the
Corporation) are subject to strict regulatory oversight. The Subadviser
agrees to submit any proposed sales literature for the Corporation (or
any Fund) or for itself or its affiliates which mentions the Corporation
(or any Fund) to the Corporation's distributor for review and filing
with the appropriate regulatory authorities prior to the public release
of any such sales literature, provided, however, that nothing herein
shall be construed so as to create any obligations or duty on the part
of the Subadviser to produce sales literature for the Corporation (or
any Fund). Further, the Adviser agrees to submit to the Subadviser any
and all sales literature referencing Subadviser by name or any affiliate
of Subadviser for review and approval prior to filing or public release.
8. Assignment and Amendments. This Contract may not be
assigned by the Subadviser and shall automatically terminate, without
the payment of any penalty, in the event (i) of its assignment,
including any change of control of the Adviser or Subadviser, or (ii) in
the event of the termination of the Advisory Contract, provided that
such termination shall not relieve the Adviser or the Subadviser of any
liability incurred hereunder. The Subadviser, as a limited liability
partnership, will promptly notify Adviser of any change in the
membership of Subadviser.
The terms of this Contract shall not be changed unless such
change is approved at a meeting by the affirmative vote of a majority of
the outstanding voting securities of the Fund and unless also approved
by the affirmative vote of a majority of Directors of the Corporation
voting in person, including a majority of the Directors who are not
interested persons of the Corporation, the Adviser or the Subadviser, at
a meeting called for the purpose of voting at such change.
9. Duration and Termination. This Contract shall become
effective as of the date firs above written and shall terminate 120 days
from such date of execution, unless this Contract is approved by
shareholders of the Fund. Upon such shareholder approval, this contract
shall remain in full force and effect continually thereafter unless
terminated automatically as set forth in Section 8 hereof or until
terminated as follows
(a) The Corporation or the Adviser may at any time terminate
this Contract, without payment of any penalty, on sixty (60)
days' written notice delivered or mailed by registered mail,
postage prepaid, to the Subadviser. Action of the
Corporation under this Subsection may be taken either (i) by
vote of its Directors or (ii) by the affirmative vote of a
majority of the outstanding voting securities of the Fund.
(b) The Subadviser may at any time terminate this Contract by
not less than sixty (60) days' written notice delivered or
mailed by registered mail, postage prepaid, to the Adviser;
or
(c) This Contract shall automatically terminate on May 1, of any
year beginning in 2000, in which its terms and renewal shall
not have been approved (i) a majority vote of the Directors
of the Corporation voting in person, including a majority of
the Directors who are not interested persons of the
Corporation, the Adviser or the Subadviser, at a meeting
called for the purpose of voting on such approval or (ii)
the affirmative vote of a majority of the outstanding voting
securities of the Fund; provided, however, that if the
continuance of this Contract is submitted to the
shareholders of the Fund for their approval and such
shareholders fail to approve such continuance of this
contract as provided herein, the Subadviser may continue to
serve hereunder as to the Fund in a manner consistent with
the 1940 Act and the rules and regulations thereunder.
(d) Termination of this Contract pursuant to this Section shall
be without payment of any penalty.
(e) In the event of termination of this Contract for any reason,
the Subadviser shall, immediately upon notice of termination
or on such later date as may be specified in such notice,
cease all activity on behalf of the Fund and with respect to
any of its assets, except as expressly directed by the
Adviser. In addition, the Subadviser shall deliver the
Fund's Books and Records to the Adviser by such means and in
accordance with such schedule as the Adviser shall direct
and shall otherwise cooperate, as reasonably directed by the
Adviser, in the transition of portfolio assets management to
any successors of the Subadviser, including the Adviser.
10. Certain Definitions. For the purposes of this Contract:
(a) "Affirmative vote of a majority of the outstanding voting
securities of the Fund" means the affirmative vote, at an
annual or Annual meeting of shareholders of the Fund, duly
called and held, (a) of 67% or more of the shares of the
Fund present (in person or by proxy) and entitled to vote at
such meeting, if the holder or more than 50% of the
outstanding shares of the Fund entitled to vote at such
meeting are present (in person or by proxy), or (b) of more
than 50% of the outstanding shares of the Fund entitled to
vote at such meeting, whichever is less.
(b) "Interested persons" and "Assignment" shall have their
respective meanings as set forth in the 1940 Act, subject,
however, to such exemptions as may be granted by the
Securities and Exchange Commission under said Act.
11. Standard of Care, Liability and Indemnification.
(a) The Subadviser shall exercise its best judgment in rendering
the services provided by it under this Contract. In the
absence of willful misfeasance, bad faith or gross
negligence on the part of the Subadviser, or of reckless
disregard of its obligations and duties hereunder, the
Subadviser shall not be subject to any liability to the
Adviser or the Corporation, to any shareholder of the Fund,
or to any person, firm or organization, for any act or
omission in the course of, or connected with the rendering
of services by Subadviser. Nothing herein, however, shall
derogate from the Subadviser's obligations under federal and
state securities laws.
(b) The Subadviser shall indemnify and hold the Adviser harmless
from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or failure or
omission to act by the Subadviser as a result of the
Subadviser's willful misfeasance, bad faith, gross
negligence or reckless disregard of its obligations and
duties hereunder.
(c) The Adviser shall indemnify and hold the Subadviser harmless
from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or failure or
omission to act by the Adviser as a result of the Adviser's
willful misfeasance, bad faith, gross negligence or reckless
disregard of its obligations and duties hereunder.
12. Jurisdiction. This Contract shall be governed by and
construed to be consistent with the Advisory Contract and in accordance
with substantive laws of the State of Wisconsin without giving regard to
the conflicts of law principals thereof and in accordance with the 1940
Act. In the case of any conflict between state law and the 1940 Act,
the 1940 Act shall control.
13. Counterparts. This Contract may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
14. Miscellaneous.
(a) Subadviser is a limited liability partnership formed under
Delaware law. Subadviser will notify the Adviser of any
changes in the membership of such partnership within a
reasonable time after such changes.
(b) Adviser acknowledges having received, not less than 48 hours
prior to entering into this Investment Advisory Agreement,
and reviewed the Subadviser's most recent Form ADV.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be signed on behalf of their duly authorized officers as of the date
first above written.
M&I INVESTMENT MANAGEMENT CORP.
/s/ illegible signature By: /s/ Xxxxx X. Xxxxxx
President
BPI GLOBAL ASSET MANAGEMENT, LLP.
/s/ illegible signature By: /s/ Xxxx Xxxxxx
President
