INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT, dated as of August 8, 2000, by and between Stockback
Advisers, LLC, a Delaware limited liability company (the "Adviser"), and Xxxxxxx
Xxxxx Investment Managers, L.P., a Delaware limited partnership (the
"Sub-Adviser").
WHEREAS, The Stockback Trust, a Delaware business trust (the "Trust"),
is registered as an investment company under the Investment Company Act of 1940,
as amended (the "Investment Company Act");
WHEREAS, the Trust is and will continue to be a series fund having one
or more investment portfolios, each with its own investment objectives, policies
and restrictions;
WHEREAS, the Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended ("Advisers Act") and is the
investment manager to the Trust;
WHEREAS, the Sub-Adviser is registered as an investment adviser under
the Advisers Act;
WHEREAS, the Investment Company Act prohibits any person from acting as
an investment adviser to a registered investment company except pursuant to a
written contract meeting the requirements of Section 15 of the Investment
Company Act;
WHEREAS, the Board of Directors of the Trust and the Adviser desire
that the Adviser retain the Sub-Adviser to render investment advisory services
to that series of the Trust known as the Stockback Fund (the "Portfolio") in the
manner and on the terms hereinafter set forth, which Portfolio is more
particularly described in the Trust's Registration Statement on Form N-1A, as
initially filed with the Securities and Exchange Commission (the "SEC") on
September 16, 1999, as further amended from time to time; and
WHEREAS, Xxxxxxxxx.xxx LLC ("Stockback") and Stockback Capital, LLC
("Stockback Capital"), each an "affiliated person" of the Trust as such term is
defined in Section 2(a)(3) of the Investment Company Act, jointly operate a Web
site ("Stockback Web Site") as part of a consumer stock ownership program
sponsored by Stockback and Stockback Capital that allows customers to directly
access the Web sites of merchants and other providers of goods and services that
participate in the consumer stock ownership program ("Merchants");
NOW, THEREFORE, the Adviser and the Sub-Adviser agree as follows:
1. APPOINTMENT OF SUB-ADVISER
The Adviser hereby appoints the Sub-Adviser to act as investment
sub-adviser for the Portfolio, subject to the supervision and control 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. SERVICES TO BE RENDERED BY THE SUB-ADVISER TO THE TRUST
A. As investment sub-adviser to the Portfolio, the Sub-Adviser will
manage 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.
Notwithstanding the foregoing, the Sub-Adviser shall have absolute discretion
over the management of the portfolio, subject only to applicable law, the
investment policies and objectives set forth in the Prospectus and Statement of
Additional Information and to any instructions received from the Trust's Board
of Trustees. Accordingly, no party other than the Sub-Adviser shall cause the
Portfolio to (i) invest or reinvest the assets of the Portfolio in the
securities of any particular issuer, (ii) effect any particular transaction or
series of transactions on behalf of the Portfolio that would have the economic
effect of an investment in the securities of any particular issuer, or (iii)
sell or otherwise dispose of any assets of the Portfolio, including without
limitation Merchants whose securities are publicly traded.
B. As part of the services it will provide hereunder, the Sub-Adviser
will:
(i) obtain and evaluate 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 the purchase and sale of
securities and other investments, including the placing of orders for
such purchases and sales;
(iv) keep the Trustees of the Trust and the Adviser fully
informed on an ongoing basis of all facts concerning the investment and
reinvestment of the assets in the Portfolio, the Sub-Adviser and its
personnel and operations which the Sub-Adviser determines in its
reasonable judgment to be material, make regular and special written
reports of such additional information concerning the Portfolio as may
reasonably be requested from time to time by the Adviser or the
Trustees of the Trust and attend meetings with the Adviser and/or the
Trustees, as reasonably requested, to discuss the foregoing,
(v) provide pricing information to the Trust to assist the
Trust in making determinations of the fair value of certain portfolio
securities when market quotations are not readily available for the
purpose of calculating the Portfolio's net asset value in accordance
with procedures and methods established by the Trustees of the Trust;
(vii) cooperate with and provide reasonable assistance to the
Adviser, the Trust 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, provide such
information with respect to the Portfolio as they may reasonably
request from time to time in the performance of their obligations to
the Trust and the Adviser, provide prompt responses to reasonable
requests made by such persons and establish appropriate interfaces with
each so as to promote the efficient exchange of information and
compliance with applicable laws and regulations;
(viii) make the Sub-Adviser's personnel responsible for the
Portfolio reasonably available during business hours to engage in
discussions concerning the Portfolio with third parties, including,
without limitation, Merchants, prospective Merchants, and, subject to
and only to the extent consistent with the Sub-Adviser internal
policies regarding such contacts, which policies have previously been
furnished to the Adviser, industry analysts and members of the media,
provided, however, that the content of any conversations with such
third parties shall be subject to the prior approval of Stockback; and
C. The Sub-Adviser's investment authority shall include advice with
regard to purchasing, selling, covering open positions, and generally dealing in
financial futures contracts and options thereon, in accordance with Rule 4.5 of
the Commodity Futures Trading Commission (the "Commission").
The Sub-Adviser shall have the authority to act as the Portfolio's true
and lawful attorney-in-fact, with full power of substitution and revocation, in
its name, place and stead to take action in the Portfolio's name to the extent
necessary or desirable to fulfill the purposes of this Agreement, including,
without limitation, (i) to open and maintain trading accounts relating to any
type of financial instrument the Portfolio is authorized to trade, on the
Portfolio's behalf, (ii) to execute and deliver such contracts and other
documents on the Portfolio's behalf as the Sub-Adviser, in its discretion, deems
necessary or desirable to establish such trading accounts or otherwise to effect
authorized investments on the Portfolio's behalf, (iii) to act, at the
Sub-Adviser's discretion, in the Portfolio's name to enforce the Portfolio's
rights and remedies under such contracts or documents, and (iv) to direct the
Portfolio's custodian to deposit, on behalf of the Portfolio, such of the
Portfolio's securities and other property as the Sub-Adviser deems desirable as
margin or collateral in connection with such trading accounts, to direct the
custodian with respect to securities lending activity (to the extent such
activity is authorized by the Board of Trustees of the Portfolio) and otherwise
direct payments of cash, securities and other property into such trading
accounts as the Sub-Adviser deems desirable.
D. In furnishing services hereunder, the Sub-Adviser shall be subject
to, and shall perform in accordance with, but only to the extent the same
reasonably relates to the Portfolio and are consistent with the scope of the
Sub-Adviser's obligations as reasonably contemplated in the other provisions of
this Agreement, (1) the Trust's Agreement and Trust Instrument, as the same may
be hereafter modified and/or amended from time to time (the "Trust Instrument
"), (2) the By-Laws of the Trust, as the same may be hereafter modified and/or
amended from time to time (the "By-Laws"), (3) the currently effective
Prospectus and Statement of Additional Information of the Trust filed with the
SEC, as the same may be hereafter modified, amended and/or supplemented (the
"Prospectus and SAI"), (4) the Investment Company Act, with the requirements
applicable to regulated investment companies under Subchapter M of the Internal
Revenue Code of 1986, as amended, (5) all other applicable state and federal
securities and other laws, (6) all regulations with respect to the foregoing,
(7) the Trust's Compliance Manual and other policies and procedures adopted from
time to time by the Board of Trustees of the Trust and (8) the written
instructions of the Adviser. In managing the Portfolio in accordance with these
requirements, the Sub-Adviser shall be entitled to receive and act upon advice
of counsel to the Portfolio or other counsel acceptable to the Adviser. Until
the Adviser or the Portfolio's counsel delivers any supplements or amendments to
the documents described above to the Sub-Adviser, the Sub-Adviser shall be fully
protected in relying on the most recent versions of such documents previously
furnished to the Sub-Adviser.
E. The Sub-Adviser, at its expense, will furnish: (i) all necessary
investment and management facilities and investment personnel, including
salaries, expenses and fees of any personnel required for it to faithfully
perform its duties under this Agreement; and (ii) administrative facilities,
including bookkeeping, clerical personnel and equipment necessary for the
efficient conduct of the Sub-Adviser's duties under this Agreement. The
Sub-Adviser shall not be responsible for other expenses of the Portfolio,
including, without limitation, fees of the Portfolio's independent public
accountants, transfer agent, custodian and other service providers who are not
employees of the Sub-Adviser; brokerage commissions and other
transaction-related expenses; accounting and tax reporting, including the
expense of obtaining quotations that may be necessary to determine the
Portfolio's net asset value; taxes levied against the Portfolio or any of its
property; interest expenses of the Portfolio; the costs of share holder
reporting; the costs of maintaining the registration of the Portfolio's shares
with any federal or state regulatory body; the costs of a fidelity bond or other
insurance premiums; trustees' fees; and legal expenses.
F. The Sub-Adviser will select brokers and dealers to effect all
portfolio transactions subject to the conditions set forth herein. The
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 brokerage transactions for the
Portfolio in accordance with such policies or practices as may be established by
the Board of Trustees and described in the Trust's Prospectus and SAI, subject
to the Sub-Adviser seeking to obtain best execution. In placing orders for the
purchase or sale of investments for the Portfolio, in the name of the Portfolio
or its nominees, the Sub-Adviser shall use its best efforts to obtain for the
Portfolio the most favorable price and best execution available, considering all
of the circumstances, and shall maintain records adequate to demonstrate
compliance with this requirement.
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, cause the 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 said 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 the most favorable price and execution, the Board or 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: (i) pay the cost of certain expenses which the Trust is required to pay or
for which the Trust is required to arrange payment or (ii) finance activities
that are primarily intended to result in the sale of Trust shares. The Board of
Trustees and Adviser acknowledge that such directed brokerage transactions will
be effected consistently with the Sub-Adviser's policy as disclosed in its Form
ADV.
H. On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Portfolio 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. In such event, 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 the Sub-Adviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Portfolio and to its other clients.
I. The Sub-Adviser will maintain all accounts, books and records with
respect to the Portfolio as are required of an investment adviser of a
registered investment company pursuant to the Investment Company Act and the
rules and regulations promulgated thereunder and shall file with the SEC all
forms pursuant to Section 13 of the Securities Exchange Act of 1934, as amended,
with respect to the discretionary management of the assets of the Portfolio.
J. Unless the Trust gives written instructions to the contrary, the
Sub-Adviser shall vote all proxies solicited by or with respect to the issuers
of securities in which assets of the Portfolio may be invested in a manner which
best serves the interests of the Portfolio's shareholders. The Sub-Adviser shall
use its best good faith judgment to vote such proxies in a manner which best
serves the interests of the Portfolio's shareholders. The Sub-Adviser shall
maintain a record of how the Sub-Adviser voted and such record shall be
available to the Trust or Adviser upon request. In addition, unless the Trust
gives written instructions to the contrary, the Sub-Adviser is authorized to act
on the Portfolio's behalf in connection with tender offers, exchange offers and
similar matters, as the Sub-Adviser deems in the best interests of the
Portfolio.
3. COMPENSATION OF ADVISER
The Adviser will pay the Sub-Adviser an advisory fee with respect to
the Portfolio on a quarterly basis in arrears at the annual rate specified in
Appendix A to this Agreement. The advisory fee due and payable hereunder shall
be calculated and accrued daily by multiplying the net asset value of the
Portfolio at the close of the immediately preceding business day (as defined in
the Prospectus and SAI) by the annual rate specified in Appendix A and dividing
the result by the number of days in the year. The advisory fee due and payable
hereunder on account of the days in any calendar quarter shall be due and
payable within ten (10) business days following the end of such calendar
quarter.
4. LIABILITY AND INDEMNIFICATION
(a) Except as may otherwise be provided by the Investment Company Act
or any other federal securities law, the Sub-Adviser shall not 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 with respect to the
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
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) (collectively, the "Adviser
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which any of the
Adviser Indemnities may become subject under the Securities Act of 1933, the
Investment Company Act, the Advisers Act, or under any other statute, at common
law or otherwise arising out of or based on (a) any willful misconduct, bad
faith, reckless disregard or gross negligence of the Sub-Adviser in the
performance of any if its duties or obligations hereunder or (b) 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 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 an
Sub-Adviser Indemnitee (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 the
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 Securities Act of 1933) (collectively, the "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
Indemnities may become subject under the Securities Act of 1933, the Investment
Company Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of or based on (a) any willful misconduct, bad faith,
reckless disregard or gross negligence of the Adviser in the performance of any
if its duties or obligations hereunder or (b) 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
or the omission to state therein a material fact known to the Adviser which 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 by an Sub-Adviser Indemnitee
for use therein.
5. EXCLUSIVITY
The services of the Sub-Adviser to the Portfolio 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 (including other investment
companies) 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, including other investment
companies.
6. SUPPLEMENTAL ARRANGEMENTS
The Sub-Adviser may from time to time employ or associate with itself
any person it believes to be particularly fitted to assist it in providing the
services to be performed by the Sub-Adviser hereunder provided, that no such
person shall perform any services with respect to the Portfolio which 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.
7. 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.
8. 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 for the Sub-Adviser to carry out its duties and legal responsibilities.
In the event of the termination of this Agreement, all such records shall
promptly be returned to the Trust by the Sub-Adviser, upon request, free from
any claim or retention of rights therein (except to the extent necessary for the
Sub-Adviser to fulfill its legal responsibilities). The Sub-Adviser shall keep
confidential any information obtained in connection with its duties hereunder
and disclose such information only if it deems such disclosure to be necessary
in the ordinary course of business, the Trust has authorized such disclosure, if
such disclosure is expressly required or requested by applicable federal or
state regulatory authorities, or such disclosure is otherwise required pursuant
to the legal process.
9. DURATION OF AGREEMENT
This Agreement shall become effective with respect to the Portfolio on
the date hereof. This Agreement shall be for a period of two years ("Initial
Term") and shall continue from year to year thereafter but only so long as each
such continuance is specifically approved at least annually by the vote of a
majority of the Board of Trustees and by the vote of a majority of the Trustees
who are not "interested persons" (as defined in the Investment Company Act)
("Independent Trustees") of any party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval.
10. 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' prior written notice to the Adviser and the
Sub-Adviser, by the Adviser on sixty (60) days' prior written notice to the
Trust and the other party, or by the Sub-Adviser at any time after the Initial
Term on sixty (60) days' prior written notice to the Trust and the other party.
This Agreement will automatically terminate, effective upon notice to the
Sub-Adviser, without the payment of any penalty, in the event of its assignment
(as defined in the Investment Company Act) or in the event the Investment
Management Agreement between the Adviser and the Trust is assigned 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 breach of this Agreement cures such breach to
the reasonable satisfaction of the party alleging the breach within thirty (30)
days after written notice.
11. PROVISION OF CERTAIN INFORMATION BY ADVISER
The Sub-Adviser will promptly notify the Adviser in writing of the
occurrence of any of the following events:
A. the Sub-Adviser fails to be registered as an investment adviser
under the Advisers Act or under the laws of any jurisdiction in which the
Sub-Adviser is required to be registered as an investment adviser in order to
perform its obligations under this Agreement;
B. the Sub-Adviser 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 Trust
(excluding class action suits in which the Trust is a member of the plaintiff
class by reason of the Portfolio's ownership of shares in the defendant); and/or
C. the chief executive officer or controlling stockholder of the
Sub-Adviser or the Portfolio Manager of the Portfolio changes or there is
otherwise an actual change in control (whether through sale of all or
substantially all the assets of the Sub-Adviser or a material change in
management of the Sub-Adviser).
12. USE OF ADVISER'S NAME
The parties agree that the name "Xxxxxxx Xxxxx", the names of the
Sub-Adviser's affiliates within [Xxxxxxx Xxxxx & Co. Inc.], and any derivative
or logo or trademark or service xxxx or trade name (including, but not limited
to, [ ]) 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 ("Brand Content") only with
the prior written approval of the Sub-Adviser, in its sole discretion, provided,
however, that the Adviser and the Trust shall have the right without prior
approval to disclose in plain text solely on the Stockback Web Site (including
use of the Xxxxxxx Xxxxx & Co. Inc. logo solely on the Stockback Web Site), or
as required by the Investment Company Act, the fact that the Sub-Adviser is
rendering investment advisory services to the Portfolio. The Sub-Adviser hereby
consents to the name "The Stockback Fund" or "The Stockback Mutual Fund" as the
designated name of the Portfolio. Upon termination of this Agreement, the
Adviser and the Trust shall forthwith cease to use such Brand Content.
13. REPRESENTATIONS
(a) The Adviser hereby warrants and represents to the Sub-Adviser that
(i) it has obtained all applicable licenses, permits, registrations and
approvals that may be required in order to serve in its designated capacities
with respect to the Portfolio, and shall continue to keep current such licenses,
permits, registrations and approvals for so long as this Agreement is in effect;
(ii) it is not prohibited by the Investment Company Act or other applicable laws
and regulations from performing the services contemplated by this Agreement;
(iii) it will immediately notify the Sub-Adviser of the occurrence of any event
that would disqualify it from serving in its designated capacities with respect
to the Portfolio; and (iv) this Agreement has been duly and validly authorized,
executed and delivered on behalf of the Adviser and is a valid and binding
agreement of the Adviser enforceable in accordance with its terms.
(b) The Sub-Adviser hereby warrants and represents to the Adviser that
(i) it has obtained all applicable licenses, permits, registrations and
approvals that may be required in order to serve in its designated capacities
with respect to the Portfolio, and shall continue to keep current such licenses,
permits, registrations and approvals for so long as this Agreement is in effect;
(ii) it is not prohibited by the Investment Company Act or other applicable laws
and regulations from performing the services contemplated by this Agreement;
(iii) it will immediately notify the Adviser of the occurrence of any event that
would disqualify it from serving in its designated capacities with respect to
the Portfolio; and (iv) this Agreement has been duly and validly authorized,
executed and delivered on behalf of the Sub-Adviser and is a valid and binding
agreement of the Sub-Adviser enforceable in accordance with its terms.
14. AMENDMENTS TO THE AGREEMENT
Any amendments to this Agreement must be in writing and signed by both
the Adviser and the Sub-Adviser. Further, except to the extent permitted by the
Investment Company Act or the rules or regulations thereunder or pursuant to any
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 portfolio of the Trust.
15. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties with respect to the Portfolio.
16. HEADINGS
The headings in the sections of this Agreement are inserted for
convenience of reference only and shall not constitute a part hereof.
17. NOTICES
All notices required to be given pursuant to this Agreement shall be
(i) delivered or mailed to the last known business address of each applicable
party in person or by registered mail or a private mail or delivery service
providing the sender with notice of receipt or (ii) sent by facsimile
transmission to the other party at the following facsimile number (with respect
to Stockback, 000-000-0000; with respect to the Sub-Adviser, [ - ]) and followed
by written confirmation of such notice delivered in accordance with clause (i)
of this section. The specific person to whom notice shall be provided for each
party will be specified in writing to the other party. Notice shall be deemed
given on the date delivered, mailed or sent by facsimile transmission in
accordance with this paragraph.
18. 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.
19. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, or any of the applicable
provisions of the Investment Company Act. To the extent that the laws of the
State of New York, or any of the provisions in this Agreement, conflict with
applicable provisions of the Investment Company Act, the latter shall control.
20. 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.
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.
STOCKBACK ADVISERS, LLC Xxxxxxx Xxxxx Investment Managers, L.P.
By: /s/ C. Xxxx Xxxxxx By:/s/ Xxxxxx X. Xxxxx
----------------- ---------------------------
C. Xxxx Xxxxxx Xxxxxx X. Xxxxx
Chief Operating Officer Managing Director
APPENDIX A
To
INVESTMENT SUB-ADVISORY AGREEMENT
With
SUB-ADVISER
Portfolio Annual Sub-Advisory Fee
Stockback Fund 0.30% (30 basis points) of the Portfolio's daily net
assets, provided that, during the first three years
of this Agreement, the Sub-Adviser shall be entitled
to receive from the Adviser the following amounts if
greater than 0.30% of the Portfolio's daily net
assets during any such year:
First Year: $25,000
Second Year: $50,000
Third Year: The sum of $500,000 minus aggregate fee
paid to the Sub-Adviser by the Adviser in the first
two years.
