INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT, dated as of October __, 2006 by and between BHR Fund
Advisors, L.P., a Delaware limited partnership (the "Adviser"), and Ark Asset
Management Co., Inc., a __________ (the "Sub-Adviser").
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act");
WHEREAS, the Adviser has entered into an investment advisory agreement
(the "Investment Advisory Agreement") dated October __, 2006 with the BHR
Institutional Funds (the "Trust") an investment company registered under the
Investment Company Act of 1940, as amended ("Investment Company Act");
WHEREAS, the Sub-Adviser is registered as an investment adviser under
the Advisers Act;
WHEREAS, the Board of Trustees of the Trust and the Adviser desire to
retain the Sub-Adviser to render investment advisory and other services to the
portfolio(s) specified in Appendix A hereto, each a series of the Trust (each a
"Portfolio" and collectively, the "Portfolios"), in the manner and on the terms
hereinafter set forth;
WHEREAS, the Adviser has the authority under the Investment Advisory
Agreement with the Trust to select advisers for each Portfolio of the Trust; and
WHEREAS, the Sub-Adviser is willing to furnish such services to the
Adviser and each Portfolio;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and intending to be legally bound hereby, the Adviser and the
Sub-Adviser agree as follows:
1. APPOINTMENT OF THE SUB-ADVISER
The Adviser hereby appoints the Sub-Adviser to act as an investment
adviser for each Portfolio, subject to the supervision and oversight of the
Adviser and the Trustees of the Trust, and in accordance with the terms and
conditions of this Agreement. The Sub-Adviser will be an independent contractor
and will have no authority to act for or represent the Trust or the Adviser in
any way or otherwise be deemed an agent of the Trust or the Adviser except as
expressly authorized in this Agreement or another writing by the Trust, the
Adviser and the Sub-Adviser.
2. ACCEPTANCE OF APPOINTMENT
The Sub-Adviser accepts that appointment and agrees to render the
services herein set forth, for the compensation herein provided.
The assets of each Portfolio will be maintained in the custody of a
custodian (who shall be identified by the Adviser in writing). The Sub-Adviser
will not have custody of any securities, cash or other assets of the Portfolio
and will not be liable for any loss resulting from any act or omission of the
custodian other than acts or omissions arising in reliance on instructions of
the Sub-Adviser.
3. SERVICES TO BE RENDERED BY THE SUB-ADVISER TO THE TRUST
A. As investment adviser to each Portfolio, the Sub-Adviser will
coordinate the investment and reinvestment of the assets of the Portfolio and
determine the composition of the assets of the Portfolio, subject always to the
supervision and control of the Adviser and the Trustees of the Trust.
B. As part of the services it will provide hereunder, the Sub-
Adviser will:
(i) obtain and evaluate, to the extent deemed necessary
and advisable by the Sub-Adviser in its discretion, pertinent economic,
statistical, financial, and other information affecting the economy
generally and individual companies or industries, the securities of
which are included in the Portfolio or are under consideration for
inclusion in the Portfolio;
(ii) formulate and implement a continuous investment
program for the Portfolio;
(iii) take whatever steps are necessary to implement the
investment program for the Portfolio by arranging for the purchase and
sale of securities and other investments, including issuing directives
to the administrator of the Trust as necessary for the appropriate
implementation of the investment program of the Portfolio;
(iv) keep the Trustees of the Trust and the Adviser fully
informed in writing on an ongoing basis as agreed by the Adviser and
the Sub-Adviser of all material facts concerning the investment and
reinvestment of the assets in the Portfolio, the Sub-Adviser and its
key investment personnel and operations, make regular and periodic
special written reports of such additional information concerning the
same as may reasonably be requested from time to time by the Adviser or
the Trustees of the Trust and the Sub-Adviser will attend meetings with
the Adviser and/or the Trustees, as reasonably requested, to discuss
the foregoing;
(v) in accordance with procedures and methods established
by the Trustees of the Trust, which may be amended from time to time,
provide assistance in determining the fair value of all securities and
other investments/assets in the Portfolio, as necessary, and use
reasonable efforts to arrange for the provision of valuation
information or a price(s) from a party(ies) independent of the
Sub-Adviser for each security or other investment/asset in the
Portfolio for which market prices are not readily available;
(vi) provide any and all material composite performance
information, records and supporting documentation about accounts the
Sub-Adviser manages, if appropriate, which are relevant to the
Portfolio and that have investment objectives, policies, and strategies
substantially similar to those employed by the Sub-Adviser in managing
the Portfolio that may be reasonably necessary, under applicable laws,
to allow the Portfolio or its agent to present information concerning
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Sub-Adviser's prior performance in the Trust's Prospectus and SAI (as
hereinafter defined) and any permissible reports and materials prepared
by the Portfolio or its agent; and
(vii) cooperate with and provide reasonable assistance to
the Adviser, the Trust's administrator, the Trust's custodian and
foreign custodians, the Trust's transfer agent and pricing agents and
all other agents and representatives of the Trust and the Adviser, keep
all such persons fully informed as to such matters as they may
reasonably deem necessary to the performance of their obligations to
the Trust and the Adviser, provide prompt responses to reasonable
requests made by such persons and maintain any appropriate interfaces
with each so as to promote the efficient exchange of information.
C. In furnishing services hereunder, the Sub-Adviser shall be
subject to, and shall perform in accordance with the following: (i) the Trust's
Agreement and Declaration of Trust, as the same may be hereafter modified and/or
amended from time to time ("Trust Declaration"); (ii) the By-Laws of the Trust,
as the same may be hereafter modified and/or amended from time to time
("By-Laws"); (iii) the currently effective Prospectus and Statement of
Additional Information of the Trust relating to the Portfolio(s) filed with the
Securities and Exchange Commission ("SEC") and delivered to the Sub-Adviser, as
the same may be hereafter modified, amended and/or supplemented ("Prospectus and
SAI"); (iv) the Investment Company Act and the Advisers Act and the rules under
each, and all other federal and state laws or regulations applicable to the
Trust and the Portfolio(s); (v) the Trust's Compliance Manual and other policies
and procedures adopted from time to time by the Board of Trustees of the Trust;
and (vi) the written instructions of the Adviser. Prior to the commencement of
the Sub-Adviser's services hereunder, the Adviser shall provide the Sub-Adviser
with current copies of the Trust Declaration, By-Laws, Prospectus and SAI,
Compliance Manual and other relevant policies and procedures that are adopted by
the Board of Trustees. The Adviser undertakes to provide the Sub-Adviser with
copies or other written notice of any amendments, modifications or supplements
to any such above-mentioned document.
D. In furnishing services hereunder, the Sub-Adviser will not
consult with any other adviser to (i) the Portfolio, (ii) any other Portfolio of
the Trust or (iii) any other investment company under common control with the
Trust concerning transactions of the Portfolio in securities or other assets.
(This shall not be deemed to prohibit the Sub-Adviser from consulting with any
of its affiliated persons concerning transactions in securities or other assets.
This shall also not be deemed to prohibit the Sub-Adviser from consulting with
any of the other covered advisers concerning compliance with paragraphs a and b
of Rule 12d3-1 under the Investment Company Act.)
E. The Sub-Adviser, at its expense, will furnish: (i) all
necessary facilities (including office space, furnishings, and equipment) and
personnel, including salaries, expenses and fees of any personnel required for
them to faithfully perform their duties under this Agreement; and (ii)
administrative facilities, including bookkeeping, and all equipment necessary
for the efficient conduct of the Sub-Adviser's duties under this Agreement.
F. The Sub-Adviser will select brokers and dealers to effect all
portfolio transactions subject to the conditions set forth herein. The
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Sub-Adviser will place all necessary orders with brokers, dealers, or issuers,
and will negotiate brokerage commissions, if applicable. The Sub-Adviser is
directed at all times to seek to execute transactions for each Portfolio (i) in
accordance with any written policies, practices or procedures that may be
established by the Board of Trustees or the Adviser from time to time and which
have been provided to the Sub-Adviser or (ii) as described in the Trust's
Prospectus and SAI. In placing any orders for the purchase or sale of
investments for each Portfolio, in the name of the Portfolio or its nominees,
the Sub-Adviser shall use its best efforts to obtain for the Portfolio "best
execution," considering all of the circumstances, and shall maintain records
adequate to demonstrate compliance with this requirement. In no instance will
portfolio securities be purchased from or sold to the Sub-Adviser, or any
affiliated person thereof, except in accordance with the Investment Company Act,
the Advisers Act and the rules under each, and all other federal and state laws
or regulations applicable to the Trust and the Portfolio.
G. Subject to the appropriate policies and procedures approved by
the Board of Trustees, the Sub-Adviser may, to the extent authorized by Section
28(e) of the Securities Exchange Act of 1934, as amended ("Exchange Act") cause
each Portfolio to pay a broker or dealer that provides brokerage or research
services to the Adviser, the Sub-Adviser and the Portfolio an amount of
commission for effecting a portfolio transaction in excess of the amount of
commission another broker or dealer would have charged for effecting that
transaction if the Sub-Adviser determines, in good faith, that such amount of
commission is reasonable in relationship to the value of such brokerage or
research services provided viewed in terms of that particular transaction or the
Sub-Adviser's overall responsibilities to the Portfolio or its other advisory
clients. To the extent authorized by Section 28(e) and the Trust's Board of
Trustees, 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 such action. Subject to seeking best execution, the Board of Trustees or the
Adviser may direct the Sub-Adviser to effect transactions in portfolio
securities through broker-dealers in a manner that will help generate resources
to pay the cost of certain expenses that the Trust is required to pay or for
which the Trust is required to arrange payment.
H. On occasions when the Sub-Adviser deems the purchase or sale
of a security to be in the best interest of the Portfolio(s) as well as other
clients of the Sub-Adviser, the Sub-Adviser to the extent permitted by
applicable laws and regulations, may, but shall be under no obligation to,
aggregate the securities to be purchased or sold to attempt to obtain a more
favorable price or lower brokerage commissions and efficient execution.
Allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by the Sub-Adviser in the manner which
the Sub-Adviser considers to be the most equitable and consistent with its
fiduciary obligations to each Portfolio and to its other clients over time. The
Adviser agrees that the Sub-Adviser and its affiliates may give advice and take
action in the performance of their duties with respect to any of their other
clients that may differ from advice given, or the timing or nature of actions
taken, with respect to the Portfolio. The Adviser also acknowledges that the
Sub-Adviser and its affiliates are fiduciaries to other entities, some of which
have the same or similar investment objectives (and will hold the same or
similar investments) as the Portfolio, and that the Sub-Adviser will carry out
its duties hereunder together with its duties under such relationships. Nothing
in this Agreement shall be deemed to confer upon the Sub-Adviser any obligation
to purchase or to sell or to recommend for purchase or sale for the Portfolio
any investment that the Sub-Adviser, its affiliates, officers or employees may
purchase or sell for its or their own account or for the account of any client,
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if in the sole and absolute discretion of the Sub-Adviser it is for any reason
impractical or undesirable to take such action or make such recommendation for
the Portfolio.
I. The Sub-Adviser will maintain all accounts, books and records
with respect to each Portfolio as are required of an investment adviser of a
registered investment company pursuant to the Investment Company Act and
Advisers Act and the rules thereunder and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are
set forth herein.
J. The Sub-Adviser will, unless and until otherwise directed by
the Adviser or the Board of Trustees, exercise all rights of security holders
with respect to securities held by each Portfolio, including, but not limited
to: voting proxies, converting, tendering, exchanging or redeeming securities;
acting as a claimant in class action litigation (including litigation with
respect to securities previously held); and exercising rights in the context of
a bankruptcy or other reorganization.
4. COMPENSATION OF SUB-ADVISER
The Adviser will pay the Sub-Adviser an advisory fee with respect to
each Portfolio as specified in Appendix B to this Agreement. Payments shall be
made to the Sub-Adviser on or about the fifth day of each month, and calculated
by applying a daily rate, based on the annual percentage rates as specified in
the appropriate Schedule, to the assets. The fee shall be based on the average
daily net assets for the month involved. Except as may otherwise be prohibited
by law or regulation (including, without limitation, any then current SEC staff
interpretation), the Sub-Adviser may, in its discretion and from time to time,
waive all or any portion of its advisory fee.
5. LIABILITY AND INDEMNIFICATION
A. Except as may otherwise be provided by the Investment Company
Act or any other federal securities law, neither the Sub-Adviser nor any of its
officers, members or employees (its "Affiliates") shall be liable for any
losses, claims, damages, liabilities or litigation (including legal and other
expenses) incurred or suffered by the Adviser or the Trust as a result of any
error of judgment or mistake of law by the Sub-Adviser or its Affiliates with
respect to each Portfolio, except that nothing in this Agreement shall operate
or purport to operate in any way to exculpate, waive or limit the liability of
the Sub-Adviser or its Affiliates for, and the Sub-Adviser shall indemnify and
hold harmless the Trust, the Adviser, all affiliated persons thereof (within the
meaning of Section 2(a)(3) of the Investment Company Act) and all controlling
persons (as described in Section 15 of the Securities Act of 1933, as amended
("1933 Act")) (collectively, "Adviser Indemnitees") against any and all losses,
claims, damages, liabilities or litigation (including reasonable legal and other
expenses) to which any of the Adviser Indemnitees may become subject under the
1933 Act, the Investment Company Act, the Advisers Act, or under any other
statute, or common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Sub-Adviser
in the performance of any of its duties or obligations hereunder or (ii) any
untrue statement of a material fact contained in the Prospectus and SAI, proxy
materials, reports, advertisements, sales literature, or other materials
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pertaining to the Portfolio or the omission to state therein a material fact
known to the Sub-Adviser which was required to be stated therein or necessary to
make the statements therein not misleading, if such statement or omission was
made in reliance upon information furnished to the Adviser or the Trust by the
Sub-Adviser Indemnitees (as defined below) for use therein.
B. Except as may otherwise be provided by the Investment Company
Act or any other federal securities law, the Adviser and the Trust shall not be
liable for any losses, claims, damages, liabilities or litigation (including
legal and other expenses) incurred or suffered by the Sub-Adviser as a result of
any error of judgment or mistake of law by the Adviser with respect to each
Portfolio, except that nothing in this Agreement shall operate or purport to
operate in any way to exculpate, waive or limit the liability of the Adviser
for, and the Adviser shall indemnify and hold harmless the Sub-Adviser, all
affiliated persons thereof (within the meaning of Section 2(a)(3) of the
Investment Company Act) and all controlling persons (as described in Section 15
of the 1933 Act) (collectively, "Sub-Adviser Indemnitees") against any and all
losses, claims, damages, liabilities or litigation (including reasonable legal
and other expenses) to which any of the Sub-Adviser Indemnitees may become
subject under the 1933 Act, the Investment Company Act, the Advisers Act, or
under any other statute, at common law or otherwise arising out of or based on
(i) any willful misconduct, bad faith, reckless disregard or gross negligence of
the Adviser in the performance of any of its duties or obligations hereunder or
(ii) any untrue statement of a material fact contained in the Prospectus and
SAI, proxy materials, reports, advertisements, sales literature, or other
materials pertaining to the Portfolio(s) or the omission to state therein a
material fact known to the Adviser that was required to be stated therein or
necessary to make the statements therein not misleading, unless such statement
or omission was made in reliance upon information furnished to the Adviser or
the Trust.
6. REPRESENTATIONS OF THE ADVISER
The Adviser represents, warrants and agrees that:
A. The Adviser has been duly authorized by the Board of Trustees
of the Trust to delegate to the Sub-Adviser the provision of investment services
to each Portfolio as contemplated hereby.
B. The Adviser has adopted a written code of ethics complying
with the requirements of Rule 17j-1 under the Investment Company Act and will
provide the Sub-Adviser with a copy of such code of ethics.
C. The Adviser is currently in material compliance and shall at
all times continue to materially comply with the requirements imposed upon the
Adviser by applicable law and regulations.
D. The 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 Investment Company
Act, the Advisers Act or other law, regulation or order from performing the
services contemplated by this Agreement; (iii) to the best of its knowledge, has
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met and will seek to continue to meet for so long as this Agreement is 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; and (v)
will promptly notify the Sub-Adviser of the occurrence of any event that would
disqualify the Adviser from serving as investment manager of an investment
company pursuant to Section 9(a) of the Investment Company Act or otherwise. The
Adviser will also promptly notify the Sub-Adviser if it is served or otherwise
receives notice of any action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, involving the
affairs of the Portfolio(s), provided, however, that routine regulatory
examinations shall not be required to be reported by this provision.
E. The execution, delivery and performance of this Agreement do
not, and will not, conflict with, or result in any violation or default under,
any agreement to which Adviser or any of its affiliates are a party.
7. REPRESENTATIONS OF THE SUB-ADVISER
The Sub-Adviser represents, warrants and agrees as follows:
A. The Sub-Adviser is currently in material compliance and shall
at all times continue to materially comply with the requirements imposed upon
the Sub-Adviser by applicable law and regulations.
B. 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 Investment Company
Act, the Advisers Act or other law, regulation or order 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 the Adviser 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 Investment Company Act or otherwise. The
Sub-Adviser will also promptly notify each Portfolio and the Adviser if it is
served or otherwise receives notice of any action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board or
body, involving the affairs of the Portfolio(s), provided, however, that routine
regulatory examinations shall not be required to be reported by this provision.
C. The Sub-Adviser has adopted a written code of ethics complying
with the requirements of Rule 17j-1 under the Investment Company Act and Rule
204A-1 under the Advisers Act and will provide the Adviser and the Board with a
copy of such code of ethics, together with evidence of its adoption. Within
forty-five days of the end of the last calendar quarter of each year that this
Agreement is in effect, and as otherwise requested, the president, Chief
Compliance Officer or a vice-president of the Sub-Adviser shall certify to the
Adviser that the Sub-Adviser has complied with the requirements of Rule 17j-1
and Rule 204A-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 material violation
has occurred, that appropriate action was taken in response to such violation.
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Upon the written request of the Adviser, the Sub-Adviser shall permit the
Adviser, its employees or its agents to examine the reports required to be made
to the Sub-Adviser by Rule 17j-1(c)(1) and Rule 204A-1(b) and all other records
relevant to the Sub-Adviser's code of ethics.
D. The Sub-Adviser has provided the Trust and the Adviser with a
copy of its Form ADV Part I, which as of the date of this Agreement is its Form
ADV as most recently filed with the SEC and ADV Part II and promptly will
furnish a copy of all amendments to the Trust and the Adviser at least annually.
Such amendments shall reflect all changes in the Sub-Adviser's organizational
structure, professional staff or other significant developments affecting the
Sub-Adviser, as required by the Advisers Act.
E. The Sub-Adviser will notify the Trust and the Adviser of any
assignment of this Agreement or change of control of the Sub-Adviser, as
applicable, and any changes in the key personnel who are either the portfolio
manager(s) of the Portfolio(s) or senior management of the Sub-Adviser, in each
case prior to or promptly after, such change. The Sub-Adviser agrees to bear all
reasonable expenses of the Trust, if any, arising out of an assignment or change
in control.
F. The Sub-Adviser will promptly notify the Adviser of any
financial condition that is likely to impair the Sub-Adviser's ability to
fulfill its commitment under this Agreement.
G. The Sub-Adviser agrees to maintain an appropriate level of
errors and omissions or professional liability insurance coverage.
H. The execution, delivery and performance of this Agreement do
not, and will not, conflict with, or result in any violation or default under,
any agreement to which Sub-Adviser or any of its affiliates are a party.
8. NON-EXCLUSIVITY
The services of the Sub-Adviser to the Adviser, the Portfolio(s) and
the Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be
free to render investment advisory or other services to others and to engage in
other activities. It is understood and agreed that the directors, officers, and
employees of the Sub-Adviser are not prohibited from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, officers, directors, trustees, or employees of any other
firm or corporation.
9. SUPPLEMENTAL ARRANGEMENTS
The Sub-Adviser may from time to time employ or associate itself with
any person it believes to be particularly suited to assist it in providing the
services to be performed by such Sub-Adviser hereunder, provided that no such
person shall perform any services with respect to the Portfolio(s) that would
constitute an assignment or require a written advisory agreement pursuant to the
Investment Company Act. Any compensation payable to such persons shall be the
sole responsibility of the Sub-Adviser, and neither the Adviser nor the Trust
shall have any obligations with respect thereto or otherwise arising under the
Agreement.
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10. REGULATION
The Sub-Adviser shall submit to all regulatory and administrative
bodies having jurisdiction over the services provided pursuant to this Agreement
any information, reports, or other material which any such body by reason of
this Agreement may request or require pursuant to applicable laws and
regulations.
11. RECORDS
The records relating to the services provided under this Agreement
shall be the property of the Trust and shall be under its control; however, the
Trust shall furnish to the Sub-Adviser such records and permit it to retain such
records (either in original or in duplicate form) as it shall reasonably require
in order to carry out its business. In the event of the termination of this
Agreement, such other records shall promptly be returned to the Trust by the
Sub-Adviser free from any claim or retention of rights therein, provided that
the Sub-Adviser may retain any such records that are required by law or
regulation. The Adviser and the Sub-Adviser shall keep confidential any
information obtained in connection with its duties hereunder and disclose such
information only if the Trust has authorized such disclosure or if such
disclosure is expressly required or requested by applicable federal or state
regulatory authorities, or otherwise required by law.
12. DURATION OF AGREEMENT
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 "interested persons" (as defined in the Investment Company Act) of any
party to this Agreement ("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 securities. This Agreement shall
continue in effect for a period more than two years from the date of its
execution only so long as such continuance is specifically approved at least
annually by the Board of Trustees provided that in such event such continuance
shall also be approved by the vote of a majority of the Independent Trustees
cast in person at a meeting called for the purpose of voting on such approval.
13. TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of
any penalty, by the Board of Trustees, including a majority of the Independent
Trustees, by the vote of a majority of the outstanding voting securities of the
Portfolio, on sixty (60) days' written notice to the Adviser and the
Sub-Adviser, or by the Adviser or Sub-Adviser on sixty (60) days' written notice
to the Trust and the other party. This Agreement will automatically terminate,
without the payment of any penalty, (i) in the event of its assignment (as
defined in the Investment Company Act), or (ii) in the event the Investment
Advisory Agreement between the Adviser and the Trust is assigned (as defined in
the Investment Company Act) or terminates for any other reason. This Agreement
will also terminate upon written notice to the other party that the other party
is in material breach of this Agreement, unless the other party in material
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breach of this Agreement cures such breach to the reasonable satisfaction of the
party alleging the breach within thirty (30) days after written notice.
14. USE OF THE SUB-ADVISER'S NAME
The parties agree that the name of the Sub-Adviser, the names of any
affiliates of the Sub-Adviser and any derivative or logo or trademark or service
xxxx or trade name are the valuable property of the Sub-Adviser and its
affiliates. The Adviser and the Trust shall have the right to use such name(s),
derivatives, logos, trademarks or service marks or trade names only with the
prior written approval of the Sub-Adviser, which approval shall not be
unreasonably withheld or delayed so long as this Agreement is in effect.
Upon termination of this Agreement, the Adviser and the Trust shall
forthwith cease to use such name(s), derivatives, logos, trademarks or service
marks or trade names. The Adviser and the Trust agree that they will review with
the Sub-Adviser any advertisement, sales literature, or notice prior to its use
that makes reference to the Sub-Adviser or its affiliates or any such name(s),
derivatives, logos, trademarks, service marks or trade names so that the
Sub-Adviser may review the context in which it is referred to, it being agreed
that the Sub-Adviser shall have no responsibility to ensure the adequacy of the
form or content of such materials for purposes of the Investment Company Act or
other applicable laws and regulations. If the Adviser or the Trust makes any
unauthorized use of the Sub-Adviser's names, derivatives, logos, trademarks or
service marks or trade names, the parties acknowledge that the Sub-Adviser shall
suffer irreparable harm for which monetary damages may be inadequate and thus,
the Sub-Adviser shall be entitled to injunctive relief, as well as any other
remedy available under law.
15. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the
rules or regulations thereunder or pursuant to exemptive relief granted by the
SEC, this Agreement may be amended by the parties only if such amendment, if
material, is specifically approved by the vote of a majority of the outstanding
voting securities of the Portfolio (unless such approval is not required by
Section 15 of the Investment Company Act as interpreted by the SEC or its staff
or unless the SEC has granted an exemption from such approval requirement) and
by the vote of a majority of the Independent Trustees cast in person at a
meeting called for the purpose of voting on such approval. The required
shareholder approval shall be effective with respect to the Portfolio if a
majority of the outstanding voting securities of the Portfolio vote to approve
the amendment, notwithstanding that the amendment may not have been approved by
a majority of the outstanding voting securities of any other Portfolio affected
by the amendment or all the Portfolios of the Trust.
16. ASSIGNMENT
Any assignment (as that term is defined in the Investment Company Act)
of the Agreement made by the Sub-Adviser shall result in the automatic
termination of this Agreement, as provided in Section 13 hereof. Notwithstanding
the foregoing, no assignment shall be deemed to result from any changes in the
directors, officers or employees of such Sub-Adviser except as may be provided
to the contrary in the Investment Company Act or the rules or regulations
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thereunder. The Sub-Adviser agrees that it will notify the Trust and the Adviser
of any changes in its key employees within a reasonable time thereafter.
17. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to each Portfolio.
18. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
19. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the address listed below of each applicable party in
person or by registered or certified mail or a private mail or delivery service
providing the sender with notice of receipt or such other address as specified
in a notice duly given to the other parties. Notice shall be deemed given on the
date delivered or mailed in accordance with this paragraph.
For: BHR Fund Advisors, L.P.
0000 Xxxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
For: Ark Asset Management Co., Inc.
[address]
Attn: [name]
20. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void
in law or in equity, the Agreement shall be construed, insofar as is possible,
as if such portion had never been contained herein.
21. TRUST AND SHAREHOLDER LIABILITY
The Adviser and the Sub-Adviser are hereby expressly put on notice of
the limitation of shareholder liability as set forth in the Trust Declaration
and agree that obligations assumed by the Trust pursuant to this Agreement shall
be limited in all cases to the Trust and its assets, and if the liability
relates to one or more series, the obligations hereunder shall be limited to the
respective assets of the Portfolio. The Adviser and the Sub-Adviser further
agree that they shall not seek satisfaction of any such obligation from the
shareholders or any individual shareholder of the Portfolio(s), nor from the
Trustees or officers, or from any individual Trustee or officer of the Trust.
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22. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware, without reference to conflict
of law or choice of law doctrines, or any of the applicable provisions of the
Investment Company Act. To the extent that the laws of the State of Delaware, or
any of the provisions in this Agreement, conflict with applicable provisions of
the Investment Company Act, the latter shall control.
23. INTERPRETATION
Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the Investment Company Act shall be resolved by reference to such term or
provision of the Investment Company Act and to interpretations thereof, if any,
by the United States courts or, in the absence of any controlling decision of
any such court, by rules, regulations or orders of the SEC validly issued
pursuant to the Investment Company Act. Specifically, the terms "vote of a
majority of the outstanding voting securities," "interested persons,"
"assignment," and "affiliated persons," as used herein shall have the meanings
assigned to them by Section 2(a) of the Investment Company Act. In addition,
where the effect of a requirement of the Investment Company Act reflected in any
provision of this Agreement is relaxed by a rule, regulation or order of the
SEC, whether of special or of general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
24. THIRD PARTY BENEFICIARY
The Adviser and Sub-Adviser expressly agree that the Trust shall be
deemed an intended third party beneficiary of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first mentioned above.
BHR FUND ADVISORS, L.P. ARK ASSET MANAGEMENT CO., INC.
By: By:
------------------------------ -----------------------------
Name: Name:
Title: Title:
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APPENDIX A
TO
INVESTMENT SUB-ADVISORY AGREEMENT
Ark Midcap Value Fund
Ark Concentrated Growth Fund
Ark Large Cap Growth Fund
-00-
XXXXXXXX X
TO
INVESTMENT SUB-ADVISORY AGREEMENT
---------------------- --------------------------
Name of Portfolio Annual Advisory Fee
---------------------- --------------------------
Ark Midcap Value 0.25% on the first
$100,000,000
0.40% on the next
$100,000,000
0.55% on the next
100,000,000
0.0062 on the Balance
---------------------- --------------------------
Ark Concentrated 0.10% on the first
Growth Fund $100,000,000
0.30% on the next
$100,000,000
0.45% on the next
$300,000,000
0.50% on the Balance
---------------------- --------------------------
Large Cap Growth Fund 0.10% on the first
$100,000,000
0.25% on the next
$100,000,000
0.40% on the next
$300,000,000
0.45% on the Balance
---------------------- --------------------------
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