Exhibit 4(s)
SUB-ADVISORY AGREEMENT
Agreement made as of August 2, 2002 between UBS GLOBAL ASSET MANAGEMENT
(US) INC. ("UBS Global AM"), a Delaware corporation, and GARTMORE GLOBAL
PARTNERS ("Sub-Adviser"), a Delaware general partnership (the "Agreement").
RECITALS
(1) UBS Global AM has entered into a Management Agreement dated
June 15, 1995 ("Management Agreement") with UBS PACE Select Advisors Trust
(formerly known as Managed Accounts Services Portfolio Trust ("Trust")), an
open-end management investment company registered under the Investment Company
Act of 1940, as amended ("1940 Act"), with respect to UBS PACE INTERNATIONAL
EMERGING MARKETS EQUITY INVESTMENTS ("Portfolio");
(2) UBS Global AM is authorized to retain one or more sub-advisers to
furnish certain investment advisory services to UBS Global AM and the Portfolio;
(3) UBS Global AM desires to retain the Sub-Adviser to furnish certain
investment advisory services to UBS Global AM and the Portfolio; and
(4) The Sub-Adviser is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, UBS Global AM and the Sub-Adviser agree as follows:
1. APPOINTMENT. UBS Global AM hereby appoints the Sub-Adviser as an
investment sub-adviser with respect to the Portfolio for the period and on the
terms set forth in this Agreement. The Sub-Adviser accepts that appointment and
agrees to render the services herein set forth, for the compensation herein
provided. The Sub-Advisor will perform the services contemplated by this
Agreement as agent only, not as principal.
2. DUTIES AS SUB-ADVISER.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees (the "Board") and review by UBS Global AM, and any written guidelines
adopted by the Board or UBS Global AM, the Sub-Adviser will provide a continuous
investment program for all or a designated portion of the assets ("Segment") of
the Portfolio, including investment research and discretionary management with
respect to all securities and investments and cash equivalents in the Portfolio
or Segment. The Sub-Adviser will determine from time to time what investments
will be purchased, retained or sold by the Portfolio or Segment and has
authority to instruct the custodian of the Portfolio accordingly. The
Sub-Adviser will be responsible for placing purchase and sell orders for
investments and for other related transactions for the Portfolio or Segment. The
Sub-Adviser will be entitled to instruct the custodian on voting proxies of
issuers of securities held by the Portfolio or Segment. The Sub-Adviser
understands that the Portfolio's assets need to be managed so as to
permit the Portfolio to qualify or to continue to qualify as a regulated
investment company under Subchapter M of the Internal Revenue Code, as amended
("Code"). The Sub-Adviser will provide services under this Agreement in
accordance with the Portfolio's investment objective, policies and restrictions
as stated in the Trust's currently effective registration statement under the
1940 Act, and any amendments or supplements thereto ("Registration Statement").
UBS Global AM will provide Sub-Advisor with reasonable advance notice of any
changes in the Portfolio's investment objectives, policies and restrictions as
stated in the Prospectus.
(b) The Sub-Adviser agrees that, in placing orders with brokers, it will
seek best execution for the Portfolio as such principle exists under U.S. law
and under the rules of the Financial Services Authority ("FSA"); provided that,
on behalf of the Portfolio, and subject to any higher standard required under
the rules of FSA the Sub-Adviser may, in its discretion, use brokers that
provide the Sub-Adviser with research, analysis, advice and similar services to
execute portfolio transactions on behalf of the Portfolio, and the Sub-Adviser
may pay to those brokers in return for brokerage and research services a higher
commission than may be charged by other brokers, subject to the Sub-Adviser's
determination in good faith that such commission is reasonable in terms either
of the particular transaction or of the overall responsibility of the
Sub-Adviser to the Portfolio and its other clients and that the total
commissions paid by the Portfolio or Segment will be reasonable in relation to
the benefits to the Portfolio over the long term. In no instance will portfolio
securities be purchased from or sold to UBS Global AM or the Sub-Adviser, or any
affiliated person thereof, except in accordance with the federal securities laws
and the rules and regulations thereunder. Subject to such polices as the Trustee
may determine, or as may be mutually agreed to by UBS Global AM and the
Sub-Adviser, the Sub-Adviser 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 Portfolio to pay a broker that provides brokerage and
research services (within the meaning of Section 28e of the Securities Exchange
Act of 1934 and within the Rules on Soft Commissions applicable to such
arrangements established by FSA). The Sub-Adviser may aggregate sales and
purchase orders with respect to the assets of the Portfolio or Segment with
similar orders being made simultaneously for other accounts advised by the
Sub-Adviser or its affiliates. Whenever the Sub-Adviser simultaneously places
orders to purchase or sell the same security on behalf of the Portfolio and one
or more other accounts advised by the Sub-Adviser, the orders will be allocated
as to price and amount among all such accounts in a manner believed to be
equitable over time to each account. UBS Global AM recognizes that in some cases
the aggregation of orders and this procedure of allocation may adversely affect
the results obtained for the Portfolio or Segment.
Subject to the Sub-Adviser's obligations to seek best execution, UBS Global
AM agrees that the Sub-Adviser, in its sole discretion, may place transactions
on behalf of the Series and the Trust with any broker-dealer deemed to be an
affiliate of the Sub-Adviser (the "Affiliated Broker-Dealers") so long as such
transactions are effected in conformity with the requirements (including any
applicable exemptions and administrative interpretations set forth in Part II of
the Sub-Adviser's Form ADV Registration Statement on file with the Securities
and Exchange Commission ("Form ADV")) of Section 11(a)(1)(H) of the Securities
Exchange Act of 1934. In all such dealings, the Affiliated Broker-Dealers shall
be authorized and entitled to retain any commissions, remuneration or profits
which may be made in such transactions and shall not be liable to account for
the same to UBS Global AM, the Series or the Trust.
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UBS Global AM further authorizes the Sub-Adviser and its Affiliated
Broker-Dealers to execute agency cross transactions (the "Cross Transactions")
on behalf of the Series and the Trust. Cross Transactions are transactions which
may be effected by the Affiliated Broker-Dealers acting for both the Series or
the Trust and the counterparty to the transaction. Cross Transactions enable the
Sub-Adviser to purchase or sell a block of securities for the Series or the
Trust at a set price and possibly avoid an unfavorable price movement that may
be created through entrance into the market with such purchase or sale order. As
such, the Sub-Adviser believes that Cross Transactions can provide meaningful
benefits for the Series and the Trust and its clients generally. UBS Global AM,
the Series and the Trust should be aware, however, that in a Cross Transaction
an Affiliated Broker-Dealer will be receiving commissions from both sides of the
trade and, therefore, there is a potentially conflicting division of loyalties
and responsibilities. Subject to any other written instructions of the Trust or
UBS Global AM, the Sub-Adviser is hereby appointed the agent for UBS Global AM
and the Trust and attorney-in-fact for the limited purposes of executing account
documentation, agreements, contracts and other documents as the Sub-Adviser
shall be requested by brokers, dealers and counterparties and other persons in
connection with its management of the segment.
(c) The Sub-Adviser will maintain all books and records required to be
maintained pursuant to Rule 31a-1(b)(ii)(3), (5), (6), (7), (9) and (10) under
the 1940 Act and the rules and regulations promulgated thereunder with respect
to transactions by the Sub-Adviser on behalf of the Portfolio or Segment, and
will furnish the Board and UBS Global AM with such periodic and special reports
as the Board or UBS Global AM reasonably may request. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, the Sub-Adviser hereby agrees
that all records which it maintains for the Portfolio are the property of the
Trust, agrees to preserve for the periods prescribed by Rule 31a-2 under the
1940 Act any records that it maintains for the Portfolio and that are required
to be maintained by Rule 31a-1 under the 1940 Act, and further agrees to
surrender promptly to the Trust any records which it maintains for the Portfolio
upon request by the Trust.
(d) At such times as shall be reasonably requested by the Board or UBS
Global AM, the Sub-Adviser will provide the Board and UBS Global AM with
quarterly reports setting forth the investment strategy and performance and
changes in composition of the Portfolio or Segment and make available to the
Board and UBS Global AM any economic, statistical and investment services that
the Sub-Adviser normally makes available to its institutional or other
customers. The Sub-Adviser adheres to AIMR/GIPS standards and requirements in
respect of performance measurement calculation.
(e) In accordance with procedures adopted by the Board, as amended from
time to time, the Sub-Adviser is responsible for assisting in the fair valuation
of all portfolio securities in the Portfolio or Segment and will use its
reasonable efforts to provide information which may assist UBS Global AM in
determining a fair value for each portfolio security for which the custodian
does not obtain prices in the ordinary course of business from an automated
pricing service.
3. FURTHER DUTIES. In all matters relating to the performance of this
Agreement, the Sub-Adviser will seek to act in conformity with the Trust's Trust
Instrument, By-Laws and
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Registration Statement and with the written instructions and written directions
of the Board and UBS Global AM; and will comply with the requirements of the
1940 Act, and the Investment Advisers Act of 1940, as amended ("Advisers Act"),
and the rules under each, the Code, and all other federal and state laws and
regulations applicable to the Trust and the Portfolio. UBS Global AM agrees to
provide to the Sub-Adviser copies of the Trust's Trust Instrument, By-Laws,
Registration Statement, written instructions and directions of the Board and UBS
Global AM, any and all relevant Trust procedures and Policies and any amendments
or supplements to any of these materials as soon as practicable after such
materials become available; and further agrees to identify to the Sub-Adviser in
writing any broker-dealers that are affiliated with UBS Global AM (other than
UBS PaineWebber Incorporated and UBS Global AM itself).
4. EXPENSES. During the term of this Agreement, the Sub-Adviser will bear
all expenses incurred by it in connection with its services under this Agreement
other than the cost of securities commodities and other investments (including
brokerage commissions, taxes and other transaction charges, if any) purchased
for the Portfolio. The Sub-Adviser shall not be responsible for any expenses
incurred by the Trust, the Portfolio or UBS Global AM.
5. COMPENSATION.
(a) For the services provided and the expenses assumed by the Sub-Adviser
pursuant to this Agreement, UBS Global AM, not the Portfolio, will pay to the
Sub-Adviser a fee, computed daily and payable monthly, at an annual rate of
0.50% of the average daily net assets of the Portfolio or Segment allocated to
its management (computed in the manner specified in the Management Agreement),
and will provide the Sub-Adviser with a schedule showing the manner in which the
fee was computed. If the Sub-Adviser is managing a Segment, its fees will be
based on the value of the assets of the Portfolio within the Sub-Adviser's
Segment.
(b) The fee shall be accrued daily and payable monthly to the Sub-Adviser
on or before the last business day of the next succeeding calendar month.
(c) If this Agreement becomes effective or terminates before the end of
any month, the fee for the period from the effective date to the end of the
month or from the beginning of such month to the date of termination, as the
case may be, shall be pro-rated according to the proportion which such period
bears to the full month in that such effectiveness or termination occurs.
6. LIMITATION OF LIABILITY.
(a) The Sub-Adviser shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Portfolio, the Trust or its
shareholders or by UBS Global AM in connection with the matters to which this
Agreement relates, except a loss resulting from willful misfeasance, bad faith
or gross negligence on its part in the performance of its duties or from
reckless disregard by it of its obligations and duties under this Agreement. In
addition, the Sub-Adviser shall not be liable for the non-performance or partial
performance of any obligations under this Agreement (nor for any losses arising
as a result) by reason of any cause beyond the Sub-Adviser's reasonable control.
UBS Global AM shall indemnify the Sub-Adviser for any liability and expenses,
including reasonable attorneys' fees which may be sustained as a result of UBS
Global AM's willful misfeasance, bad faith or gross negligence, on its part in
the performance of its duties
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or from reckless disregard of its obligations under the Agreement or under law.
(b) In no event will the Sub-Adviser have any responsibility for any other
series of the Trust, for any portion of the Portfolio not managed by the
Sub-Adviser or for the acts or omissions of the custodian of the Portfolio or
any other sub-adviser to the Trust or Portfolio.
In particular, in the event the Sub-Adviser shall manage only a portion of
the Portfolio's investments, the Sub-Adviser shall have no responsibility for
the Portfolio's being in violation of any applicable law or regulation or
investment policy or restriction applicable to the Portfolio as a whole or for
the Portfolio's failing to qualify as a regulated investment company under the
Code, if the securities and other holdings of the Segment of the Portfolio
managed by the Sub-Adviser are such that such Segment would not be in such
violation or fail to so qualify if such Segment were deemed a separate series of
the Trust or a separate "regulated investment company" under the Code. UBS
Global AM acknowledges and agrees that the Registration statement will at all
times be in compliance with all disclosure requirements under all federal and
state laws and regulations relative to the Trust or the Portfolio, including,
without limitation the 1940 Act.
Nothing in this section shall be deemed a limitation or waiver of any
obligation or duty that may not by law be limited or waived.
7. REPRESENTATIONS OF SUB-ADVISER AND UBS GLOBAL AM.
The Sub-Adviser represents, warrants and agrees as follows:
(a) The Sub-Adviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this 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 seek to 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 agency, necessary to
be met in order to perform the services contemplated by this Agreement; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; and (v) will promptly notify UBS Global AM of the occurrence of any
event that would disqualify the Sub-Adviser from serving as an investment
adviser of an investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
(b) The Sub-Adviser has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 Act and will provide UBS Global AM
and the Board with a copy of such code of ethics, together with evidence of its
adoption. Within thirty days of the end of the last calendar quarter of each
year that this Agreement is in effect, a duly authorized officer of the
Sub-Adviser shall certify to UBS Global AM that the Sub-Adviser has complied
with the requirements of Rule 17j-1 during the previous year and that there has
been no material violation of the Sub-Adviser's code of ethics or, if such a
violation has occurred, that appropriate action was taken in response to such
violation. Upon the written request of UBS Global AM, the Sub-Adviser shall
permit UBS Global AM, its employees or its agents to examine the reports
required to be made by the Sub-Adviser pursuant to Rule 17j-1 and all other
records relevant to the Sub-Adviser's code of ethics.
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(c) The Sub-Adviser has provided UBS Global AM with a copy of its Form
ADV, as most recently filed with the Securities and Exchange Commission ("SEC"),
and promptly will furnish a copy of all amendments to UBS Global AM at least
annually.
(d) The Sub-Adviser will notify UBS Global AM of any change of control of
the Sub-Adviser, including any change of its general partners or 25%
shareholders or 25% limited partners, as applicable, and any changes in the key
personnel who are either the portfolio manager(s) of the Portfolio or senior
management of the Sub-Adviser, in each case prior to or promptly after such
change.
(e) UBS Global AM and the Sub-Adviser agree that neither of them nor any
of their affiliates, will in any way refer directly or indirectly to their
relationship with one another or any of their respective affiliates in offering,
marketing or other promotional materials without the express written consent of
the other, which consent will be promptly provided and not unreasonably
withheld.
UBS Global AM represents, warrants and agrees as follows:
(a) it is duly incorporated, established or constituted (as the case may
be) and validly existing under the laws of Delaware;
(b) it has legal capacity and authority to enter into this Agreement, that
this Agreement is duly executed, and that the terms of this Agreement are legal,
valid and binding obligations on it which are enforceable against it and do not
constitute a breach of any obligation by which it is bound whether by contract,
operation of law or otherwise; and
(c) the Portfolio is and will continue, until the Sub-Adviser's
appointment is terminated, to be property which UBS Global AM is empowered to
deal with, and to the best of UBS Global AM's knowledge is free from any lien,
charge or other encumbrance or security interest and UBS Global AM undertakes
that it will not, dispose of, encumber or otherwise deal with the Segment of the
Portfolio managed by the Sub-Adviser nor permit any other person so to do.
8. SERVICES NOT EXCLUSIVE. The services furnished by the Sub-Adviser
hereunder are not to be deemed exclusive, and except as the Sub-Adviser may
otherwise agree in writing, the Sub-Adviser shall be free to furnish similar
services to others so long as its services under this Agreement are not impaired
thereby. Nothing in this Agreement shall limit or restrict the right of any
director, officer or employee of the Sub-Adviser, who may also be a trustee,
officer or employee of the Trust, 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 nature or a dissimilar nature.
9. DURATION AND TERMINATION.
(a) This Agreement shall become effective upon the date first above
written, provided that this Agreement shall not take effect unless it has first
been approved (i) by a vote of a majority of those trustees of the Trust who are
not parties to this Agreement or interested persons of any such
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party ("Independent Trustees"), cast in person at a meeting called for the
purpose of voting on such approval, and (ii) by vote of a majority of the
Portfolio's outstanding voting securities, unless UBS Global AM has authority to
enter into this Agreement pursuant to exemptive relief from the SEC without a
vote of the Portfolio's outstanding voting securities.
(b) Unless sooner terminated as provided herein, this Agreement shall
continue in effect for two years from its effective date. Thereafter, if not
terminated, this Agreement shall continue automatically for successive periods
of twelve months each, provided that such continuance is specifically approved
at least annually (i) by a vote of a majority of the Independent Trustees, cast
in person at a meeting called for the purpose of voting on such approval, and
(ii) by the Board or by vote of a majority of the outstanding voting securities
of the Portfolio.
(c) Notwithstanding the foregoing, this Agreement may be terminated at any
time, without the payment of any penalty, by vote of the Board or by a vote of a
majority of the outstanding voting securities of the Portfolio on 60 days'
written notice to the Sub-Adviser. This Agreement may also be terminated,
without the payment of any penalty, by UBS Global AM: (i) upon 120 days' written
notice to the Sub-Adviser; (ii) upon material breach by the Sub-Adviser of any
of the representations, warranties and agreements set forth in Paragraph 7 of
this Agreement; or (iii) immediately if, in the reasonable judgment of UBS
Global AM, the Sub-Adviser becomes unable to discharge its duties and
obligations under this Agreement, including circumstances such as financial
insolvency of the Sub-Adviser or other circumstances that could adversely affect
the Portfolio. The Sub-Adviser may terminate this Agreement at any time, without
the payment of any penalty, on 120 days' written notice to UBS Global AM. This
Agreement will terminate automatically in the event of its assignment or upon
termination of the Management Agreement, as it relates to this Portfolio. UBS
Global AM will notify the Sub-Adviser immediately of the termination of the
Management Agreement.
The termination of this Agreement shall not affect liabilities or
obligations incurred or arising from past or ongoing transactions initiated
under this Agreement prior to such termination. Upon termination, it is UBS
Global AM's responsibility to monitor the securities in the Portfolio, and the
Sub-Adviser will have no further obligation to act or advise with respect to
those assets except that termination will be without prejudice to the completion
of transactions already initiated.
10. AMENDMENT OF THIS AGREEMENT. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by both parties. To the extent required by applicable law, no
amendment of this Agreement shall be effective until approved (i) by a vote of a
majority of the Independent Trustees, and (ii) if the terms of this Agreement
shall have changed, by a vote of a majority of the Portfolio's outstanding
voting securities (except in the case of (ii), pursuant to the terms and
conditions of the SEC order permitting it to modify the Agreement without such
vote).
11. GOVERNING LAW. This Agreement shall be construed in accordance with
the 1940 Act and the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof. To the extent that the applicable laws of
the State of New York conflict with the applicable provisions of the 1940 Act,
the latter shall control.
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12. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this 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. As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"affiliated person," "interested person," "assignment," "broker," "investment
adviser," "net assets," "sale," "sell" and "security" shall have the same
meanings as such terms have in the 1940 Act, subject to such exemption as may be
granted by the SEC by any rule, regulation or order. Where the effect of a
requirement of the federal securities laws reflected in any provision of this
Agreement is made less restrictive by a rule, regulation or order of the SEC,
whether of special or general application, such provision shall be deemed to
incorporate the effect of such rule, regulation or order. This Agreement may be
signed in counterpart.
13. NOTICES. Any notice herein required is to be in writing and is deemed
to have been given to the Sub-Adviser or UBS Global AM upon receipt of the same
at their respective addresses set forth below. All written notices required or
permitted to be given under this Agreement will be delivered by personal
service, by postage mail return receipt requested or by facsimile machine or a
similar means of same delivery which provides evidence of receipt (with a
confirming copy by mail as set forth herein). All notices provided to UBS Global
AM will be sent to the attention of Xxx Doberman, General Counsel. All notices
provided to the Sub-Adviser will be sent to the attention of Xxxxxx X. Xxxxx,
Xx.
14. RISK ACKNOWLEDGEMENT. The Sub-Adviser does not guarantee the future
performance of the Portfolio or Segment or any specific level of performance,
the success of any investment decision or strategy that the Sub-Adviser may use,
or the success of the Sub-Adviser's overall management of the Portfolio or
Segment.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
UBS GLOBAL ASSET
MANAGEMENT (US) INC.
00 Xxxx 00xx Xxxxxx
Xxxxxx: Xxx Xxxx, Xxx Xxxx 00000-0000
By: /s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxx Lung
-------------------------- ------------------------------
Name: Xxxxxxxx Xxxxxxxx Name: Xxxxx Lung
Title: Associate Director Title: Managing Director
GARTMORE GLOBAL PARTNERS
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attest:
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------- ------------------------------
Name: Xxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Lawyer Title: Chief Investment Officer
