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INVESTMENT SUBADVISORY AGREEMENT
INVESTMENT SUBADVISORY AGREEMENT ("Agreement"), dated as of December 15,
2000 by and between Diversified Investment Advisors, Inc., a Delaware
corporation ("Diversified") and Ark Asset Management Co., Inc., a New York
corporation ("Subadvisor").
WITNESSETH:
WHEREAS, Diversified has been organized to operate as an investment
advisor registered under the Investment Advisers Act of 1940 and has been
retained to provide investment advisory services to the Equity Growth
Portfolio ("Portfolio"), a series of Diversified Investors Portfolios, a
diversified open-end management investment company registered under the
Investment Company Act of 1940 ("1940 Act");
WHEREAS, Diversified desires to retain the Subadvisor to furnish it with
portfolio investment advisory services in connection with Diversified's
investment advisory activities on behalf of the Portfolio, and the Subadvisor
is willing to furnish such services to Diversified;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of the Subadvisor. In accordance with and subject to the
Investment Advisory Agreement between the Portfolio and Diversified, attached
hereto as Schedule A (the "Advisory Agreement"), Diversified hereby appoints
the Subadvisor to act as Diversified's agent and attorney-in-fact with respect
to the investment and reinvestment of assets with full power and authority to
direct any custodian of the assets of the Account to purchase, sell or exchange
any stocks, bonds, options or other securities or such other assets which are
acceptable to the Subadvisor (individually, "security" and collectively,
"securities") and to issue directly to a broker or dealer such orders for the
purchase, sale or exchange of securities or other property, as the Subadvisor
may deem appropriate and without prior consultation with Diversified. Such
appointment to perform the portfolio investment advisory services described
herein shall apply to the investment and reinvestment of such amount of the
Portfolio's assets as is determined from time to time by the Portfolio's Board
of Trustees (the "Account"), subject to the control and direction of
Diversified and the Diversified Investors Portfolio's Board of Trustees, for
the period and on the terms hereinafter set forth.
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The Subadvisor shall provide Diversified with such investment advice and
supervision as the latter may from time to time consider necessary for the
proper supervision of the Account. The Subadvisor shall furnish continuously an
investment program and shall determine from time to time what securities shall
be purchased, sold or exchanged and what portion of the assets of the Portfolio
shall be held uninvested, subject always to the provisions of the 1940 Act and
to the Portfolio's then-current Prospectus and Statement of Additional
Information ("SAI").
In particular, the Subadvisor shall, without limiting the foregoing: (i)
continuously review, supervise and implement the investment program of the
Account; (ii) monitor regularly the relevant securities for the Account to
determine if adjustments are warranted and, if so, to make such adjustments;
(iii) determine, in the Subadvisor's discretion, the securities to be purchased
or sold or exchanged in order to keep the Account in balance with its designated
investment strategy; (iv) determine, in the Subadvisor's discretion, whether to
exercise warrants or other rights with respect to the Account's securities; (v)
determine, in the Subadvisor's discretion, whether the merit of an investment
has been substantially impaired by extraordinary events or financial conditions,
thereby warranting the removal of such securities from the Portfolio; (vi) as
promptly as practicable after the end of each; calendar month, furnish a report
showing: (a) all transactions during such month, (b) all assets of the Account
on the last day of such month, rates of return, and (c) such other information
relating to the Account as Diversified may reasonably request; (vii) meet at
least four times per year with Diversified and with such other persons as may be
designated on reasonable notice and at reasonable locations, at the request of
Diversified, to discuss general economic conditions, performance, investment
strategy, and other matters relating to the Account; (viii) provide the
Portfolio with records concerning the Subadvisor's activities which the
Portfolio is required to by law maintain; and (ix) render regular reports to the
Portfolio's officers and Directors concerning the Subadvisor's discharge of the
foregoing responsibilities.
The Subadvisor shall review all proxy solicitation materials and be
responsible for voting all proxies in relation to the securities held in the
Account.
Should the Board of Trustees at any time make any definite determination as
to investment policy with respect to the Portfolio and notify the Subadvisor
thereof in writing, the Subadvisor shall be bound by such determination for the
period, if any, specified in such notice or until similarly notified that such
policy has been revoked.
The Subadvisor shall take, on behalf of the Account, all actions which it
deems necessary to implement the investment policies determined as provided
above, and in particular to place all orders for the purchase or sale of Account
securities with brokers or dealers selected by it, and to that end the
Subadvisor is authorized as the
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agent of the Account to give instructions to the custodian of the Account as to
deliveries of securities and payments of cash for the Account. Subject to the
primary objective of obtaining the best available prices and execution, the
Subadvisor may place orders for the purchase and sale of portfolio securities
with such broker/dealers who provide statistical, factual and financial
information and services to the Portfolio, to the Subadvisor, or to any other
fund or account for which the Subadvisor provides investment advisory services
and may place such orders with broker/dealers who sell shares of the Portfolio
or who sell shares of any other fund for which the Subadvisor provides
investment advisory services. Broker/dealers who sell shares of the funds of
which Ark Asset Management Co., Inc. is investment advisor shall only receive
orders for the purchase or sale of portfolio securities to the extent that the
placing of such orders is in compliance with the Rules of the Securities and
Exchange Commission and the National Association of Securities Dealers, Inc.
Notwithstanding the provisions of the previous paragraph and subject to
such policies and procedures as may be adopted by the Board of Trustees and
officers of the Portfolio, the Subadvisor may pay a member of an exchange,
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, in such instances
where the Subadvisor has determined in good faith that such amount of commission
was reasonable in relation to the value of the brokerage and research services
provided by such member, broker or dealer, viewed in terms of either that
particular transaction or the Subadvisor's overall responsibilities with respect
to the Account and to other funds and separate accounts for which the Subadvisor
exercises investment discretion.
The Subadvisor shall not act as custodian for the Account or take or have
possession of any assets thereof. Instructions of the Subadvisor to the
custodian shall be in writing, or by electronic media recognized by established
industry practice, or shall be made orally and confirmed in writing as soon
thereafter as may be practicable. The Subadvisor shall instruct all brokers
executing orders on behalf of the Account to forward to the custodian (and/or,
if so directed by Diversified, to Diversified) copies of all brokerage
confirmations promptly after execution of all transactions.
2. Allocation of Charges and Expenses. The Subadvisor shall furnish at its
own expense all necessary services, facilities and personnel in connection with
its responsibilities under Section 1 above. It is understood that the Portfolio
will pay all of its own expenses and liabilities including, without limitation,
compensation and out-of-pocket expenses of Trustees not affiliated with the
Subadvisor or Diversified; governmental fees; interest charges; taxes;
membership dues; fees and expenses of independent auditors, of legal counsel and
of any transfer agent, administrator,
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distributor, shareholder servicing agents, registrar or dividend disbursing
agent of the Portfolio; expenses of distributing and redeeming shares and
servicing shareholder accounts; expenses of preparing, printing and mailing
prospectuses, shareholder reports, notices, proxy statements and reports to
governmental officers and commissions and to shareholders of the Portfolio;
expenses connected with the execution, recording and settlement of Portfolio
security transactions; insurance premiums; fees and expenses of the custodian
for all services to the Portfolio, including safekeeping of funds and securities
and maintaining required books and accounts; expenses of calculating the net
asset value of shares of the Portfolio; expenses of shareholder meetings;
expenses of litigation and other extraordinary or non-recurring events and
expenses relating to the issuance, registration and qualification of shares of
the Portfolio.
3. Compensation of the Subadvisor. For the services to be rendered,
Diversified shall pay to the Subadvisor an investment advisory fee computed in
accordance with the terms of Schedule B herewith attached. If the Subadvisor
serves for less than the whole of any period specified, its compensation shall
be prorated.
4. Covenants and Representations of the Subadvisor. The Subadvisor agrees
that it will not deal with itself, or with the Trustees of the Portfolio or with
Diversified, or the principal underwriter or distributor as principals in making
purchases or sales of securities or other property for the account of the
Portfolio, except as permitted by the 1940 Act, will not take a long or short
position in the shares of the Portfolio except as permitted by the Articles, and
will comply with all other provisions of the Articles and By-Laws and any
current Prospectus of the Portfolio relative to the Subadvisor, Advisor and its
Trustees and officers.
Diversified represents and warrants to the Subadvisor that: (a) the assets
which constitute the Account have been provided to the Subadvisor; (b) the
person(s) executing this Agreement on behalf of Diversified has full power and
authority to execute this Agreement on behalf of Diversified and (c)
Diversified's execution, delivery and performance of this Agreement will be
binding upon Diversified in accordance with the terms hereof, and will not
violate any obligations by which Diversified, or the Portfolio is bound, whether
arising by contract, operation of law or otherwise.
5. Limits on Duties. The Subadvisor shall be responsible only for managing
the Account in good faith and in accordance with the investment objectives,
fundamental policies and restrictions, and shall have no responsibility
whatsoever for, and shall incur no liability on account of (i) diversification,
selection or establishment of such investment objectives, fundamental policies
and restrictions (ii) advice on, or
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management of, any other assets for Diversified or the Portfolio, (iii) filing
of any tax or information returns or forms, withholding or paying any taxes, or
seeking any exemption or refund, (iv) registration with any government or
agency, or (v) administration of the plans and trusts investing through the
Portfolio, or (vi) overall Portfolio compliance with the requirements of the
1940 Act, which requirements are outside of the Subadvisor's control, and
Subchapter M of the Internal Revenue Code of 1986, as amended, and shall be
indemnified and held harmless by Diversified for any loss in carrying out the
terms and provisions of this Agreement, including reasonable attorney's fees,
indemnification to the Portfolio, or any shareholder thereof and, brokers and
commission merchants, fines, taxes, penalties and interest. Subadvisor, however,
shall be liable for any liability, damages, or expenses of Diversified arising
out of the negligence, malfeasance or violation of applicable law by any of its
employees in providing management under this Agreement; and, in such cases, the
indemnification by Diversified, referred to above, shall be inapplicable.
The Subadvisor may apply to Diversified at any time for instructions and
may consult counsel for Diversified or its own counsel with respect to any
matter arising in connection with the duties of the Subadvisor. Also, the
Subadvisor shall be protected in acting upon advice of Diversified and/or
Diversified's counsel and upon any document which Subadvisor reasonably
believes to be genuine and to have been signed by the proper person or persons.
6. Exclusivity. Subadvisor represents to Diversified that during the
first three years of this Agreement Subadvisor will not manage any Large
Cap-Growth equity growth fund(s) for any other company operating under a
hub-and-spoke structure in Diversified's target market. (See Schedule C.) At
the end of three years, this exclusive management provision will continue in
effect from year to year if the assets under management in the Account exceed
$350 million dollars.
If, at the end of three years or any year thereafter, the Account's assets
are less than $350 million dollars, then this exclusivity provision will become
inapplicable. This exclusivity provision also ends if either party to the
Agreement terminates the Agreement.
7. Duration, Termination and Amendments of this Agreement. This Agreement
shall become effective as of the day and year first above written and shall
govern the relations between the parties hereto thereafter, and, unless
terminated earlier as provided below, shall remain in force for two years, on
which date it will terminate unless its continuance thereafter is specifically
approved at least annually (a) by the vote of a majority of the Trustees of the
Portfolio who are not "interested persons" to this Agreement or of the
Subadvisor or Diversified at an in-person meeting specifically called for the
purpose of voting on such approval, and (b) by the
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Board of Trustees of the Portfolio or by vote of a majority of the outstanding
voting securities of the Portfolio. However, if the shareholders of the
Portfolio fail to approve the Agreement as provided herein, the Subadvisor may
continue to serve hereunder in the manner and to the extent permitted by the
investment Company Act of 1940 and Rules thereunder.
This Agreement may be terminated at any time without the payment of any
penalty by the Trustees, or by the vote of a majority of the outstanding voting
securities of the Portfolio or by Diversified. The Subadvisor may terminate the
Agreement only upon giving 90 days' advance written notice to Diversified. This
Agreement shall automatically terminate in the event of its assignment.
This Agreement may be amended only if such amendment is approved by the
vote of a majority of the outstanding voting securities of the Portfolio and
by vote of a majority of the Board of Trustees of the Fund who are not parties
to this Agreement or interested persons of any such party, cast in person at a
meeting called for the purpose of voting on such approval.
The terms "specifically approved at least annually", "vote of a majority of
the outstanding voting securities", "assignment", "affiliated person", and
"interested persons", when used in this Agreement, shall have the respective
meanings specified in, and shall be construed in a manner consistent with, the
1940 Act, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission under said Act.
8. Certain Records. Any records to be maintained and preserved pursuant
to the provisions of Rule 31a-1 and Rule 31a-2 adopted under the 1940 Act which
are prepared or maintained by the Subadvisor on behalf of the Account are the
property of the Portfolio and will be surrendered promptly to the Portfolio on
request.
9. Survival of Compensation Rates. All rights to compensation under this
Agreement shall survive the termination of this Agreement.
10. Entire Agreement. This Agreement states the entire agreement of the
parties with respect to investment advisory services to be provided to the
Portfolio by the Subadvisor and may not be amended except in a writing signed
by the parties hereto and approved in accordance with Section 7 hereof.
11. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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12. Change of Management and Pending Litigation. Subadvisor represents to
Diversified that it will disclose to Diversified promptly after it has
knowledge of any significant change or variation in its management structure or
personnel or any significant change or variation in its management style or
investment philosophy. In addition, Subadvisor represents to Diversified
that it will similarly disclose to Diversified, promptly after it has
knowledge, the existence of any pending legal action being brought against it
whether in the form of a lawsuit or a non-routine investigation by any federal
or state governmental agency.
Diversified represents to Subadvisor that any information received by
Diversified pursuant to this section will be kept strictly confidential and
will not be disclosed any third party.
13. Use of Name. Subadvisor hereby agrees that Diversified may use the
Subadvisor's name in its marketing or advertising materials. Diversified agrees
to allow the Subadvisor to examine and approve any such materials prior to use.
Diversified hereby agrees that Subadvisor may use Diversified's name in
Subadvisor's marketing or advertising materials as part of a client list only.
Any other use of Diversified's name in any such marketing or advertising
materials shall be subject to Diversified's review and approval thereof.
14. Receipt of Disclosure Document. Diversified acknowledges that it
received a copy of Subadvisor's disclosure document under Rule 204-3 of the
Investment Advisers Act of 1940 at least 48 hours prior to entering into this
Agreement.
IN WITNESS WHEREOF, the parties thereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned
thereunto duly authorized, all as of the day and year first above written.
Diversified Investment Advisors, Inc.
/s/ Xxxx X. Xxxxxx
By: ----------------------------
Ark Asset Management Co., Inc.
/s/ Xxxxx X. London
By: ----------------------------
XXXXX X. LONDON
GENERAL COUNSEL
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INVESTMENT ADVISORY AGREEMENT
AGREEMENT made as of January 3, 1994 by and between the Equity Growth
Portfolio a series of Diversified Investors Portfolios (herein called the
"Portfolio"), and Diversified Investment Advisors, Inc. a Delaware corporation
(herein called "Diversified").
WHEREAS, the Portfolio is registered as a diversified, open-end, management
investment company under the Investment Company Act of 1940 (the "1940 Act");
and
WHEREAS, Diversified has been organized to operate as an investment advisor
registered under the Investment Advisers Act of 1940; and
WHEREAS, the Portfolio desires to retain Diversified to render investment
advisory services, and Diversified is willing to so render such services on the
terms hereinafter set forth;
NOW, THEREFORE, this Agreement
WITNESSETH:
In consideration of the promises and mutual covenants herein contained, it is
agreed between the parties hereto as follows:
The Portfolio hereby appoints Diversified to act as investment advisor to the
Portfolio for ??? period and on the terms set forth in this Agreement.
Diversified accepts such appointment and agrees to render the services herein
set forth for the compensation herein provided.
(a) Diversified shall, at its expense, (i) employ sub-advisors or associate
with itself such ??? as it believes appropriate to assist it in performing its
obligations under this agreement and (ii) provide all services, equipment and
facilities necessary to perform its obligations under this Agreement.
(b) The Portfolio shall be responsible for all of its expenses and liabilities,
including, but not limited to: compensation and out-of-pocket expenses of
Trustees not affiliated with any advisor or Diversified; governmental fees;
interest charges; taxes; membership dues; fees or expenses of independent
auditors, of legal counsel and of any transfer agent, administrator,
distributor, shareholder servicing agents, registrar or dividend disbursing
agent
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of the Portfolio; expenses of distributing and redeeming shares and servicing
shareholder accounts; expenses of preparing, printing and mailing prospectuses,
shareholder reports, notices, proxy statements and reports to governmental
officers and commissions and to shareholders of the Portfolio; expenses
connected with the execution, recording and settlement of Portfolio security
transactions; insurance premiums; fees and expenses of the custodian all
services to the Portfolio, including safekeeping of funds and securities and
maintaining required books and accounts; expenses of calculating the net asset
value of shares of the Portfolio; expenses of shareholder meetings; expenses of
litigation and other extraordinary non-recurring events and expenses relating to
the issuance, registration and qualification of shares of the Portfolio.
3. (a) Subject to the general supervision of the Board of Trustees of the
Portfolio Diversified shall formulate and provide an appropriate investment
program on a continuous basis in connection with the management of the
Portfolio, including research, analysis, advice statistical and economic data
and information and judgments of both a macroeconomic and microeconomic
character.
Diversified will determine the securities to be purchased, sold, lent,
exchanged or otherwise disposed of or acquired by the Portfolio in accordance
with predetermined guidelines as set forth from time to time in the Portfolio's
then-current prospectus and Statement of Additional Information ("SAI") and will
place orders pursuant to its determinations either directly with the issuer or
with any broker or dealer who deals in such securities. In placing orders with
brokers and dealers, Diversified will use its reasonable best efforts to obtain
the best net price and the most favorable execution of its orders, after taking
into account all factors it deems relevant, including the breadth of the market
in the security, the price of the security, the financial condition and
execution capability of the broker or dealer, and the reasonableness of the
commission, if any, both for the specific transaction and on a continuing basis.
Consistent with this obligation, Diversified may, to the extent permitted by
law, purchase and sell Portfolio securities to and from brokers and dealers who
provide brokerage and research services (within the meaning of Section 28(e) of
the Securities Exchange Act of 1934) to or for the benefit of the Portfolio
and/or other accounts over which Diversified or any of its affiliates exercises
investment discretion.
Subject to the review of the Portfolio's Board of Trustees from time to
time with respect to the extent and continuation of the policy, Diversified is
authorized to pay to a broker or dealer who provides such brokerage and research
services a commission for effecting a securities transaction for the Portfolio
which is in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if Diversified determines in
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good faith that such commission was reasonable in relation to the value of the
brokerage and research services provided by such broker or dealer, viewed in
terms of either that particular transaction or the overall responsibilities of
Diversified with respect to the accounts as to which it exercises investment
discretion.
In placing orders with brokers and/or dealers, Diversified intends to seek best
price and execution for purchases and sales and may effect transactions through
itself and its affiliates on a securities exchange provided that the commissions
paid by the Portfolio are "reasonable and fair" compared to commissions received
by other broker-dealers having comparable execution capability in connection
with comparable transactions involving similar securities and provided that the
transactions in connection with which such commissions are paid are effected
pursuant to procedures established by the Board of the Trustees of the
Portfolio. All transactions are effected pursuant to written authorizations from
the Portfolio conforming to the requirements of Section 11(a) of the Securities
Exchange Act of 1934 and Rule 11a2-2(T) thereunder. Pursuant to such
authorizations, an affiliated broker-dealer may transmit, clear and settle
transactions for the Portfolio that are executed on a securities exchange
provided that it arranges for unaffiliated brokers to execute such transactions.
Diversified shall determine from time to time the manner in which voting rights,
rights to consent to corporate action and any other rights pertaining to the
Portfolio's securities shall be exercised, provided, however, that should the
Board of Trustees at any time make any definite determination as to investment
policy and notify Diversified thereof in writing, Diversified shall be bound by
such determination for the period, if any, specified in such notice or until
similarly notified that such determination has been revoked. Diversified will
determine what portion of securities owned by the Portfolio shall be invested in
securities described by the policies of the Portfolio and what portion, if any,
should be held uninvested. Diversified will determine whether and to what extent
to employ various investment techniques available to the Portfolio. In effecting
transactions with respect to securities or ??? property for the account of the
Portfolio, Diversified may deal with itself and its affiliates, with the
Trustees of the Portfolio or with other entities to the extent such actions
permitted by the 0000 Xxx.
(b) Diversified also shall provide to the Portfolio administrative assistance in
connection with the operation of the Portfolio, which shall include compliance
with all reasonable ??? of the Portfolio for information, including information
required in connection with Portfolio's filing with the Securities and Exchange
Commission and state securities commissions.
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(c) As a manager of the assets of the Portfolio, Diversified shall make
investments for account of the Portfolio in accordance with Diversified's best
judgment and within the Portfolio's investment objectives, guidelines, and
restrictions, the 1940 Act and the provision of the Internal Revenue Code of
1986 relating to regulated investment companies subject to policy decisions
adopted by the Board of Trustees.
(d) Diversified shall furnish to the Board of Trustees periodic reports on
the investment performance of the Portfolio and on the performance of its
obligations under this Agreement and shall supply such additional reports and
information as the Portfolio's officers or Board Trustees shall reasonably
request.
(e) On occasions when Diversified deems the purchase or sale of a security
to be in the best interest of the Portfolio as well as other customers,
Diversified, to the extent permitted by applicable law, may aggregate the
securities to be so sold or purchased in order to obtain the best execution or
lower brokerage commissions, if any. Diversified may also on occasion purchase
or sell a particular security for one or more customers in different amounts. On
either occasion, and to the extent permitted by applicable law and regulations,
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be made by Diversified in the manner it
considers to be the most equitable and consistent with ??? fiduciary obligations
to the Portfolio and to such other customers.
(f) Diversified shall also provide the Portfolio with the following
services as may be required:
(i) providing office space, equipment and clerical personnel
necessary for maintaining the organization of the Portfolio and
for performing administrative and management functions;
(ii) supervising the overall administration of the Portfolio,
including negotiation of contracts and fees with and the
monitoring of performance and xxxxxxxx of the Portfolio's
transfer agent, custodian and other independent contractors or
agents;
(iii) preparing and, if applicable, filing all documents required for
compliance by the Portfolio with applicable laws and
regulations, including registration statements, registration fee
filings, semi-annual and annual reports to investors, proxy
statements and tax returns;
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(iv) preparation of agendas and supporting documents for and
minutes of mee??? Trustees, committees of Trustees and investors; and
(v) maintaining books and records of the Portfolio.
4. Diversified shall give the Portfolio the benefit of
Diversified's best judgment efforts in rendering services under this Agreement.
As an inducement to Diversified's undertaking to render these services, the
Portfolio agrees that Diversified shall not be liable under this Agreement for
any mistake in judgment or in any other event whatsoever provided that nothing
in this Agreement shall be deemed to protect or purport to protect Diversified
against any liability to the Portfolio or its investors to which Diversified
would otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of the Adviser's duties under this Agreement or
by reason of the Adviser's reckless disregard of its obligations and duties
hereunder.
5. In consideration of the services to be rendered by
Diversified under this Agreement, the Portfolio shall pay Diversified a fee
accrued daily and paid monthly at an annual rate equal to .70% of the
Portfolio's average daily net assets. If the fees payable to Diversified
pursuant to this paragraph 5 begin to accrue before the end of any month or if
this Agreement terminates before the end of any month, the fees for the period
from that date to the end of that month or from the beginning of that month to
the date of termination, as the case may be, shall be prorated according to the
proportion which the period bears to the full month in which the effectiveness
or termination occurs. For purposes of calculating the monthly fees, the value
of the net assets of the Portfolio shall be computed in the manner specified in
its Regulation Statement on Form N-1A for the computation of net asset value.
For purposes of this Agreement, a "business day" is any day the New York Stock
Exchange is open for trading.
In compliance with the requirements of Rule 31a-3 under the 1940 Act,
Diversified hereby agrees that all records which it maintains for the
Portfolio are property of the Portfolio and further agrees to surrender
promptly to the Portfolio any such records upon the Portfolio's request.
Diversified further agrees to preserve for the periods prescribed by Rule ?? a-2
under the 1940 Act any such records required to be maintained by Rule 31 a-1
under the 1940 Act.
6. This Agreement shall be effective as to the Portfolio as of the
date the Portfolio commences investment operations after this Agreement shall
have been approved by the Board of Trustees of the Portfolio and the
investor(s) in the Portfolio in the manner
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contemplated by Section 15 of the 1940 Act and, unless sooner terminated as
provided herein shall continue until the second anniversary of the date
hereof. Thereafter, if not terminated this Agreement shall continue in effect
as to the Portfolio for successive periods of 12 months each, provided such
continuance is specifically approved at least annually by the vote of a majority
of those members of the Board of Trustees of the Portfolio who are not parties
to this Agreement or interested persons of any such party, cast in person at a
meeting called for the purpose of voting on such approval; and either (a) by
the vote of a majority of the full Board of Trustees or (b) by vote of a
majority of the outstanding voting securities of the Portfolio; provided,
however, that this Agreement may be terminated by the Portfolio at any time,
without the payment of any penalty, by the Board of Trustees of the Portfolio or
by vote of a majority of the outstanding voting securities of the Portfolio
on 60 days' written notice Diversified, or by Diversified as to the
Portfolio at any time, without payment of any penalty on 90 days' written notice
to the Portfolio. This Agreement will immediately terminate in the event of its
assignment. (As used in this Agreement, the terms "majority of the outstanding
voting securities", "interested person" and "assignment" shall have the same
meanings as such terms have in the 1940 Act and the rule and regulatory
constructions thereunder.)
7. Except to the extent necessary to perform Diversified's obligations
under this Agreement, nothing herein shall be deemed to limit or restrict the
right of Diversified, or any affiliate of Diversified, or any employee of
Diversified, to engage in any other business or devote time and attention to
the management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other trust,
corporation, firm, individual or association.
8. The investment management services of Diversified to the Portfolio
under this agreement are not to be deemed exclusive as to Diversified and
Diversified will be free to render similar services to others.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
No provision of this Agreement may be changed, waived, discharged or
terminated ???ly, but only by an instrument in writing signed by the party
against which enforcement of ???change, waiver, discharge, or termination is
sought and no material amendment of this Agreement shall be effective until
approved by vote of the holders of a majority of the ???tanding voting
securities of the Portfolio.
This Agreement embodies the entire agreement and understanding between the
parties ???to and supersedes all prior agreements and understandings relating
to the subject matter
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hereof. The captions in this Agreement are included for convenience of
reference only and no way define or delimit any of the provisions hereof or
otherwise affect their construction effect. Should any part of this Agreement
be held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. Agreement shall be
binding and shall inure to the benefit of the parties hereto and their
respective successors, to the extent permitted by law.
9. This Agreement shall be construed in accordance with the laws of the
State of New York provided that nothing herein shall be construed in a manner
inconsistent with the requirements of 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
Attest: Diversified Investors Portfolios
/s/ Xxxx X. Xxxxxx By: /s/ Xxx Xxxxxxxxxxx
--------------------- -----------------------------------
Xxx Xxxxxxxxxxx
Chairman and President
Attest: Diversified Investment Advisors, Inc.
/s/ Xxxxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxx
--------------------- -----------------------------------
Xxxxxx X. Xxxx
Vice President and CFO
15
SCHEDULE B
The Subadvisor shall be compensated for its services under this Agreement on the
basis of the below-described annual fee schedule. The fee schedule shall only be
amended by agreement between the parties.
Fee Schedule
.20% applied to the net assets of the Account
Net assets are equal to the market value of the Subadvisor's portion of the
Portfolio. Fees will be calculated by multiplying the arithmetic average of the
beginning and ending monthly net assets by the fee schedule and dividing by
twelve. The fee will be paid quarterly.
Subadvisor agrees that if at anytime during the term of this Subadvisory
Agreement, Subadvisor offers another of its clients a lower fee than that set
forth in this Schedule B for the management of a similarly structured Equity
Growth Portfolio then Diversified will also be charged the lower rate.
Diversified will benefit from the lower rate from the first day that it is in
effect for Subadvisor's other client. It is understood and agreed by both
Subadvisor and Diversified that this paragraph is applicable solely to
Diversified's Equity Growth Portfolio and not to any other fund/assets which
Subadvisor now manages or may manage in the future on Diversified's behalf.
16
SCHEDULE C
Target market for 401(a) plans is those plans with assets between $1 and $50
million.
For 403(b) plans, the target market is those plans that have an employee base
between 300 - 2000 lives, and with assets between $1 and $15 million.
