XXXX XXXXXXX CAPITAL SERIES
Xxxx Xxxxxxx U.S. Global Leaders Growth Fund
Sub-Investment Management Contract
Dated May 17, 2002
XXXX XXXXXXX ADVISERS, LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXX XXXXXXX CAPITAL SERIES
|Xxxx Xxxxxxx U.S. Global Leaders Growth Fund
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX, XXXX & XXXXXXXX, INCORPORATED
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Sub-Investment Management Contract
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Ladies and Gentlemen:
Xxxx Xxxxxxx Capital Series (the "Trust") has been organized
as a business trust under the laws of The Commonwealth of Massachusetts to
engage in the business of an investment company. The Trust's shares of
beneficial interest may be classified into series, each series representing the
entire undivided interest in a separate portfolio of assets. Series may be
established or terminated from time to time by action of the Board of Trustees
of the Trust. The Board of Trustees has established several series of the Trust,
including Xxxx Xxxxxxx U.S. Global Leaders Growth Fund (the "Fund").
The Trustees have selected Xxxx Xxxxxxx Advisers LLC (the
"Adviser") to provide overall investment advice and management for the Fund, and
to provide certain other services, under the terms and conditions provided in
the Investment Management Contract, dated as of the date hereof, between the
Trust, the Fund and the Adviser (the "Investment Management Contract").
The Adviser and the Trustees have selected Xxxxxx, Xxxx &
Xxxxxxxx, Incorporated (the "Sub-Adviser") to provide the Adviser and the Fund
with the advice and services set forth below, and the Sub-Adviser is willing to
provide such advice and services, subject to the review of the Trustees and
overall supervision of the Adviser, under the terms and conditions set forth in
this agreement (the "Agreement"). The Sub-Adviser hereby represents and warrants
that it is registered as an investment adviser under the Investment Advisers Act
of 1940, as amended (the "Advisers Act"). Accordingly, the Trust, on behalf of
the Fund, and the Adviser agree with the Sub-Adviser as follows:
1. Investment Services. The Sub-Adviser will use its best efforts to
provide to the Fund continuing and suitable investment advice with respect to
investments, consistent with the investment policies, objectives and
restrictions of the Fund as set forth in the Fund's Prospectus and Statement of
Additional Information. In the performance of the Sub-Adviser's duties
hereunder, subject always to the Trust's and the Fund's organizational documents
as amended from time to time and the limitations set forth in the Registration
Statement of the Trust, on behalf of the Fund, as in effect from time to time
under the Securities Act of 1933, as amended (the "1933 Act"), and the
Investment Company Act of 1940, as amended (the "1940 Act"), the Sub-Adviser
will, have investment discretion with respect to the Fund. In performing the
Sub-Adviser's obligations hereunder, the Sub-Adviser shall comply with the
provisions of the Declaration of Trust and By-laws, the 1940 Act, Advisers Act,
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the Commodity Exchange Act and the rules and regulations promulgated under such
statutes and the investment objective, policies and restrictions of the Fund, as
each of the same shall be from time to time in effect as set forth in the Fund's
then current Prospectus and Statement of Additional Information. The Sub-Adviser
shall use its best efforts to cause the Fund to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), for
qualification as a regulated investment company. The Sub-Adviser shall also
comply with such policies, guidelines, procedures and instructions as the
Adviser or the Trustees may from time to time establish and deliver to the
Sub-Adviser. No supervisory activity undertaken by the Adviser shall limit the
Sub-Adviser's responsibility for the foregoing. The Sub-Adviser will, at its own
expense:
(a) furnish the Adviser and the Fund with advice and recommendations,
consistent with the investment policies, objectives and restrictions of the Fund
as set forth in the Fund's Prospectus and Statement of Additional Information,
with respect to the purchase, holding and disposition of portfolio securities;
(b) furnish the Adviser and the Fund with advice as to the manner in
which voting rights, subscription rights, rights to consent to corporate action
and any other rights pertaining to the Fund's assets shall be exercised, the
Fund having the responsibility to exercise such voting and other rights;
(c) furnish the Adviser and the Fund with research, economic and
statistical data in connection with the Fund's investments and investment
policies, which are consistent with the past practices of the Sub-Advisor with
respect to the Fund regarding research, economics and statistical data;
(d) submit such reports relating to the valuation of the Fund's
securities as the Trustees may reasonably request and to monitor the value of
any security that is priced at fair value in accordance with the Fund's
valuation procedures and immediately report to the Adviser any change in such
fair value;
(e) from time to time or at any time as reasonably requested by the
Adviser or the Trustees, make reports to the Adviser or the Trust of the
Sub-Adviser's performance of the foregoing services and the compliance by the
Fund with applicable statutory and regulatory requirements relating to the
management of the Fund's assets and the Fund's investment objectives, policies
and restrictions and upon request, which may be without notice, to make the
Sub-Adviser's records and premises available for compliance audits by the
Adviser or the Fund's accountants or counsel;
(f) subject to the supervision of the Adviser, maintain all books and
records with respect to the Fund's securities transactions required by the 1940
Act, and preserve such records for the periods prescribed therefor by the 1940
Act (the Sub-Adviser agrees that such records are the property of the Trust and
copies will be surrendered to the Trust promptly upon request therefor);
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(g) cooperate with and provide reasonable assistance to the Adviser,
the Fund, the Fund's custodian and foreign sub-custodians, the Fund's pricing
agents and all other agents and representatives of the Fund and the Adviser,
furnish such information with respect to the Fund as they may reasonably request
from time to time in the performance of their obligations, 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; and
(h) cooperate generally with the Fund and the Adviser to provide
information reasonably requested by the Adviser which is necessary for the
preparation of registration statements and periodic reports to be filed with the
Securities and Exchange Commission, including Form N-1A, periodic statements,
shareholder communications and proxy materials furnished to holders of shares of
the Fund, filings with state "blue sky" authorities and with United States
agencies responsible for tax matters, and other reports and filings of like
nature.
(i) The Sub-Adviser shall place all trades for the Fund through the
Adviser's trading desk. The Adviser shall have complete authority to determine
the brokers or dealers through which any trade by the Fund is placed and as to
the timing and manner of the execution of any such trade.
2. Expenses Paid by the Sub-Adviser. The Sub-Adviser will pay the cost
of maintaining the staff and personnel necessary for it to perform its
obligations under this Agreement, the expenses of office rent, telephone,
telecommunications and other facilities it is obligated to provide in order to
perform the services specified in Section 1, and any other expenses incurred by
it in connection with the performance of its duties hereunder.
3. Expenses of the Fund Not Paid by the Sub-Adviser. The Sub-Adviser
will not be required to pay any expenses of the Fund which this Agreement does
not expressly make payable by the Sub-Adviser. In particular, and without
limiting the generality of the foregoing but subject to the provisions of
Section 2, the Sub-Adviser will not be required to pay under this Agreement:
(a) the compensation and expenses of Trustees and of independent
advisers, independent contractors, consultants, managers and other agents
employed by the Trust or the Fund other than through the Sub-Adviser;
(b) legal, accounting and auditing fees and expenses of the Trust or
the Fund;
(c) the fees and disbursements of custodians and depositories of the
Trust or the Fund's assets, transfer agents, disbursing agents, plan agents and
registrars;
(d) taxes and governmental fees assessed against the Trust or the
Fund's assets and payable by the Trust or the Fund;
(e) the cost of preparing and mailing dividends, distributions,
reports, notices and proxy materials to shareholders of the Trust or the Fund,
except that the Sub-Adviser shall bear the costs of providing the information
referred to in Section 1(i) to the Adviser;
(f) brokers' commissions and underwriting fees; and
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(g) the expense of periodic calculations of the net asset value of the
shares of the Fund.
4. Compensation of the Sub-Adviser. (a) Subject to Sections 4(b) and
(c), for all services to be rendered, facilities furnished and expenses paid or
assumed by the Sub-Adviser as herein provided for the Fund, the Adviser will pay
the Sub-Adviser quarterly, in arrears, within 5 business days after the end of
each quarter, a fee equal on an annual basis to the following percentages of the
Fund's average daily net assets: (i) 0.3375% with respect to the first
$500,000,000 of the average daily net asset value of the Fund; (ii) 0.3000% with
respect to the average daily net asset value of the Fund in excess of
$500,000,000 up to $1,000,000,000; (iii) 0.2625% with respect to the average
daily net asset value of the Fund in excess of $1,000,000,000 up to
$1,500,000,000; (iv) 0.2250% of the average daily net asset value of the Fund in
excess of $1,500,000,000 up to $2,000,000,000; and (v) 0.1875% of the average
daily net asset value of the Fund in excess of $2,000,000,000.
The "average daily net assets" of the Fund shall be determined
on the basis set forth in the Fund's Prospectus or otherwise consistent with the
1940 Act and the regulations promulgated thereunder. The Sub-Adviser will
receive a pro rata portion of such fee for any periods in which the Sub-Adviser
advises the Fund less than a full quarter. The Fund shall not be liable to the
Sub-Adviser for the Sub-Adviser's compensation hereunder. Calculations of the
Sub-Adviser's fee will be based on average net asset values as provided by the
Adviser.
(b) In the event that, and each time that, prior to the fifth
anniversary of the Effective Date, Xxxxxx, Xxxxxx or any other person designated
as a co-portfolio manager in the Fund's prospectus (collectively, a
"Co-portfolio Manager") ceases employment with the Sub-Adviser, the quarterly
fee paid to the Sub-Adviser shall be reduced by 20% of the fee that the
Sub-Adviser would otherwise earn for such quarterly period under this Agreement
until the Sub-Adviser retains a new Co-portfolio manager as a substitute for the
departed portfolio manager. No such substitute Co-portfolio manager shall be
selected without the written consent of the Adviser, which consent shall not be
unreasonably withheld. A pro rata adjustment shall be made with respect to any
quarter during which such condition existed only for a portion of such quarter.
(c) (i) For the period from the Effective Date until the first
anniversary of the Effective Date, the minimum fee payable to the Sub-Adviser
pursuant to Section 4(a) shall be $750,000, which shall be payable in cash. If
the Sub-Adviser shall be entitled to a Sub-Advisory fee for such annual period
in excess of $750,000, the payment of such excess shall be deferred until the
third anniversary of the Effective Date and subject to the condition set forth
in (vi) below.
(ii) For the period from the first anniversary of the Effective Date
until the second anniversary of such Effective Date, the fee payable to the
Sub-Adviser pursuant to Section 4(a) shall be paid in cash up to $1,000,000 (it
being understood that the $1,000,000 is not a minimum fee). If the Sub-Adviser
shall be entitled to a Sub-Advisory fee for such annual period in excess of
$1,000,000, the payment of such excess shall be deferred until the third
anniversary of the Effective Date and subject to the condition set forth in (vi)
below.
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(iii) For the period from the second anniversary of the Effective Date
until the third anniversary of the Effective Date, the fee payable to the
Sub-Adviser pursuant to Section 4(a) shall be paid in cash up to $1,500,000 (it
being understood that the $1,500,000 is not a minimum fee). If the Sub-Adviser
shall be entitled to a Sub-Advisory fee for such annual period in excess of
$1,500,000, the payment of such excess shall be deferred until the third
anniversary of the Effective Date and subject to the condition set forth in (vi)
below.
(iv) XXX shall withhold any deferred amount pursuant to (i), (ii) or
(iii) of this Section 4(c) after the cash payment has been made in full to the
Sub-Adviser.
(v) Notwithstanding anything to the contrary herein, the aggregate
amount of Sub-Advisory fees deferred during the three year period after the
Effective Date shall not exceed $3,250,000.
(vi) If at any time prior to the third anniversary of the Effective
Date, Xxxxxx Xxxxxx is not employed by the Sub-Adviser for any reason or is not
an active member of the Fund's portfolio management team (other than due to the
termination of this Agreement by the Adviser or the Trust without "cause" (as
defined in the Agreement among the Adviser, the Sub-Adviser and Xxxxxx Xxxxxx,
dated as of February 25, 2002 (the "YWM Agreement"), the amounts deferred
pursuant to this Section 4(c) shall no longer be payable to the Sub-Adviser.
(vii) At the end of each calendar quarter during which a portion of the
Sub-Advisory fee is deferred, the Adviser shall invest the deferred amount in,
at the Adviser's option, either commercial paper or other money market
instruments (including a money market fund managed by the Adviser) (the "Money
Market Instruments") or in shares of the Fund. The amount of each deferred
payment of Sub-Advisory fee shall be increased or decreased to reflect the
return of the Money Market Instruments or the Fund, as the case may be, during
the period from the date each such investment is made until the third
anniversary of the Effective Date. Except as provided in the preceding sentence
and in Section 4(b)(vi), any deferred amount of Sub-Advisory fee shall be
payable to the Sub-Adviser within 30 days after the third anniversary of the
Effective Date.
(viii) If this Agreement terminates automatically in the event of its
assignment pursuant to Section 10 hereof and the Advisor continues the
subadvisory relationship with the Sub-Adviser or its successor by entering into
a new subadvisory agreement, any and all deferred amounts of the Sub-Advisory
fee being held by Adviser pursuant to this Section 4 shall continue to be
payable to the Sub-Adviser within 30 days after the third anniversary of the
Effective Date in accordance with the terms of this Section 4.
(d) The Adviser shall provide to the Sub-Adviser, promptly following
request therefor, all information reasonably requested by the Sub-Adviser to
support the calculation of the Sub-Advisory fee (including any deferrals
thereof) and shall permit the Sub-Advisor or its agents, upon reasonable notice
and at reasonable times and at Sub-Adviser's cost to inspect the books and
records of the Adviser pertaining to such calculation. The Sub-Adviser may
dispute the Adviser's calculation of the Sub-Adviser's compensation provided for
under this Section 4 via binding arbitration by a panel of three (3) arbitrators
consisting of three (3) accountants. Each side shall select one (1) accountant.
The selected accountants shall appoint a third accountant. The arbitration shall
be governed by the United States Arbitration Act, 9 U.S.C. ss.ss.1-16, and any
court having jurisdiction thereof may enter judgment upon the award rendered by
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the arbitrator. The place of arbitration shall be Boston, Massachusetts. The
arbitration shall begin within thirty (30) days of the Sub-Adviser's notice of
its intent to arbitrate unless the Adviser and Sub-Adviser agree in writing to
an extension. The fees and expenses of the arbitration itself shall be borne
equally by the parties to such arbitration; provided, however, that the
arbitrator shall be empowered to award reimbursement of fees and expenditures of
the prevailing party by the non-prevailing party. Each party shall bear its own
expenses and its own costs incidental to each arbitration. The procedures
specified in this paragraph shall be the sole and exclusive procedures for the
resolution of disputes between the parties relating to the calculation of the
compensation of the Sub-Adviser under this Agreement.
5. Other Activities of the Sub-Adviser and Its Affiliates. Nothing
herein contained shall prevent the Sub-Adviser or any associate of the
Sub-Adviser from engaging in any other business or from acting as investment
adviser or investment manager for any other person or entity. It is understood
that officers, directors and employees of the Sub-Adviser or its affiliates may
continue to engage in providing portfolio management services and advice to
other investment companies, whether or not registered, to other investment
advisory clients of the Sub-Adviser or its affiliates and to said affiliates
themselves.
6. Avoidance of Inconsistent Position. In connection with purchases or
sales of portfolio securities for the account of the Fund, neither the
Sub-Adviser nor any of its investment management subsidiaries nor any of such
investment management subsidiaries' directors, officers or employees will act as
principal or agent or receive any commission, except as may be permitted by the
1940 Act and rules and regulations promulgated thereunder. The Sub-Adviser shall
not knowingly recommend that the Fund purchase, sell or retain securities of any
issuer in which the Sub-Adviser has a financial interest without obtaining prior
approval of the Adviser prior to the execution of any such transaction.
Nothing herein contained shall limit or restrict the Sub-Adviser or any
of its officers, affiliates or employees from buying, selling or trading in any
securities for its or their own account or accounts. The Trust and Fund
acknowledge the Sub-Adviser and its officers, affiliates, and employees, and its
other clients may at any time have, acquire, increase, decrease or dispose of
positions in investments which are at the same time being acquired or disposed
of hereunder. The Sub-Adviser shall have no obligation to acquire with respect
to the Fund, a position in any investment which the Sub-Adviser, its officers,
affiliates or employees may acquire for its or their own accounts or for the
account of another client, if in the sole discretion of the Sub-Adviser, it is
not feasible or desirable to acquire a position in such investment on behalf of
the Fund. Nothing herein contained shall prevent the Sub-Adviser from purchasing
or recommending the purchase of a particular security for one or more funds or
clients while other funds or clients may be selling the same security.
7. No Partnership or Joint Venture. The Trust, the Fund, the Adviser
and the Sub-Adviser are not partners of or joint venturers with each other and
nothing herein shall be construed so as to make them such partners or joint
venturers or impose any liability as such on any of them.
8. Name of the Trust and the Fund. The Trust and the Fund may use the
name "Xxxx Xxxxxxx" or any name or names derived from or similar to the names
"Xxxx Xxxxxxx Advisers, Inc." or "Xxxx Xxxxxxx Life Insurance Company" only for
so long as the Investment Management Contract remains in effect. At such time as
such agreement shall no longer be in effect, the Trust and the Fund will (to the
extent that they lawfully can) cease to use such a name or any other name
indicating that the Fund is advised by or otherwise connected with the Adviser.
The Fund acknowledges that it has adopted the name Xxxx Xxxxxxx U.S. Global
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Leaders Growth Fund through permission of Xxxx Xxxxxxx Life Insurance Company, a
Massachusetts insurance company, and agrees that Xxxx Xxxxxxx Life Insurance
Company reserves to itself and any successor to its business the right to grant
the nonexclusive right to use the name "Xxxx Xxxxxxx" or any similar name or
names to any other corporation or entity, including but not limited to any
investment company of which Xxxx Xxxxxxx Life Insurance Company or any
subsidiary or affiliate thereof shall be the investment adviser.
9. Limitation of Liability of Sub-Adviser. 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, the Trust, the
Fund or any of their affiliates as a result of any error of judgment or mistake
of law by the Sub-Adviser with respect to the Fund, 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 Adviser, the Trust, the Fund and all affiliated persons
thereof (within the meaning of Section 2(a)(3) of the 1940 Act) and all
controlling persons (as described in Section 15 of the 1933 Act) (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 1933 Act, the
1940 Act, the Advisers Act, or under any other statute, at common law or
otherwise arising out of or based on (a) the Sub-Adviser's causing the Fund to
be in violation of any applicable federal or state law, rule or regulation or
any investment policy or restriction set forth in the Fund's Prospectus or
Statement of Additional Information or any written policies, procedures,
guidelines or instructions provided in writing to the Sub-Adviser by the
Trustees or the Adviser, (b) the Sub-Adviser's causing the Fund to fail to
satisfy the requirements of Subchapter M of the Code for qualification as a
regulated investment company, or (c) the Sub-Adviser's willful misfeasance, bad
faith or gross negligence generally in the performance of its duties hereunder
or its reckless disregard of its obligations and duties under this Agreement.
10. Duration and Termination of this Agreement. This Agreement shall
remain in force until June 30, 2007; provided that this Agreement shall
terminate unless its continuance is approved prior to June 30, 2003 and annually
thereafter in the manner required by the 1940 Act or the rules and interpretive
positions of the Securities and Exchange Commission under the 1940 Act. This
Agreement may, on 10 days' written notice, be terminated at any time without the
payment of any penalty by the Trust or the Fund by vote of a majority of the
outstanding voting securities of the Fund, by the Trustees or the Adviser and
may be terminated upon 30 days written notice by the Sub-Adviser. Termination of
this Agreement with respect to the Fund shall not be deemed to terminate or
otherwise invalidate any provisions of any contract between the Sub-Adviser and
any other series of the Trust. This Agreement shall automatically terminate in
the event of its assignment or upon termination of the Investment Management
Contract. In interpreting the provisions of this Section 10, the definitions
contained in Section 2(a) of the 1940 Act (particularly the definitions of
"assignment," "interested person" or "voting security"), shall be applied.
7
11. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought, and no amendment, transfer, assignment,
sale, hypothecation or pledge of this Agreement shall be effective until
approved in the manner required by the 1940 Act or the rules and interpretive
positions of the Securities and Exchange Commission under the 1940 Act.
12. Provision of Certain Information by the Sub-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 Fund
(excluding class action suits in which the Fund is a member of the plaintiff
class by reason of the Fund's ownership of shares in the defendant) or the
compliance by the Sub-Adviser with the federal or state securities laws;
(c) the controlling stockholder or senior management of the Sub-Adviser
changes, 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) or an "assignment" (as defined in the 1940 Act)
has or is proposed to occur;
(d) any occurrence of any event that would disqualify the Sub-Adviser
from serving as a Sub-Adviser with respect to the Fund; or
(e) any representation of the Sub-Adviser under this Agreement is no
longer true in all material respects.
13. Representations and Acknowledgements of Sub-Adviser. The
Sub-Adviser hereby warrants and represents to the Adviser that (a) 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
Fund, including, but not limited to registration under the Advisers Act, and
shall continue to keep current such license, permits, registrations and
approvals for so long as this Agreement is in effect; (b) it is not prohibited
by the Advisers Act or other applicable laws and regulations from performing the
services contemplated by this Agreement; and (c) 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 against it in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and limitations on the availability of equitable
remedies.
14. Representations and Acknowledgements of Adviser. (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 Fund,
including, but not limited to registration under the Advisers Act, and shall
continue to keep current such license, permits, registrations and approvals for
so long as this Agreement is in effect; and (ii) this Agreement has been duly
8
and validly authorized, executed and delivered on behalf of the Adviser and is a
valid and binding agreement of the Adviser enforceable against it in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and limitations on the availability of equitable remedies.
(b) The Adviser represents that it has provided the Sub-Adviser with a complete
copy of its Form ADV as currently in effect and will promptly provide the
Sub-Adviser with copies of all amendments and supplements thereto. Such ADV, as
amended and supplemented from time to time, does not and shall not contain a
material misstatement of the information required to be stated therein.
(c) The Adviser has reviewed the Registration Statement, and any amendments or
supplements thereto, of the Fund as filed with the Securities and Exchange
Commission and represents and warrants that with respect to disclosure about the
Adviser or information relating directly or indirectly to the Adviser, such
Registration Statement, amendment and/or supplement contain, as of the date
thereof, no untrue statement of any material fact and does not omit any
statement of material fact that was required to be stated therein or necessary
to make the statements contained therein not misleading.
15. Insurance. The Sub-Adviser will maintain at all times insurance
coverage for errors and omissions in an amount of coverage not less than $2
million (including a deductible not in excess of $100,000) and other terms to
which the Adviser shall not reasonably object.
16. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
17. Severability. The provisions of this Agreement are independent of
and separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be deemed invalid or unenforceable in whole or in part.
18. Miscellaneous. (a) The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. The name Xxxx Xxxxxxx Capital Series is the
designation of the Trustees under the Amended and Restated Declaration of Trust
dated February 28, 1992, as amended from time to time. The Declaration of Trust
has been filed with the Secretary of The Commonwealth of Massachusetts. The
obligations of the Trust and the Fund are not personally binding upon, nor shall
resort be had to the private property of, any of the Trustees, shareholders,
officers, employees or agents of the Fund, but only the Fund's property shall be
bound. The Trust or the Fund shall not be liable for the obligations of any
other series of the Trust.
(b) Any information supplied by the Sub-Adviser, which is not otherwise
in the public domain, in connection with the performance of its duties hereunder
is to be regarded as confidential and for use only by the Fund and/or its
agents, and only in connection with the Fund and its investments.
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(c) As used herein, Effective Date means the Closing Date, as defined
in the YWM Agreement.
(d) This Agreement represents the entire agreement between the parties
hereto with respect to the subject matter hereof and supercedes all prior oral
and written negotiations, commitments and understandings between the parties;
provided that this Agreement shall not supercede or modify the obligations of
the Adviser and the Sub-Adviser under the YWM Agreement, which obligations shall
remain in full force and effect.
Yours very truly,
XXXX XXXXXXX CAPITAL SERIES on behalf
of Xxxx Xxxxxxx U.S. Global Leaders Growth Fund
By: /s/Xxxxxxx X. Xxxx
------------------
The foregoing contract
is hereby agreed to as
of the date hereof.
XXXX XXXXXXX ADVISERS, LLC
By: /s/Xxxxx X. Xxxxxx
------------------
XXXXXX, XXXX & XXXXXXXX, INCORPORATED
By: /s/Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Vice Presdent and Treausrer
