SUB-ADVISORY AGREEMENT
AGREEMENT
made as of the 13th day of November, 2009 by and between Mercer Global
Investments, Inc., a Delaware corporation (the “Advisor”), and Massachusetts
Financial Services Company (d/b/a “MFS Investment Management”, a Delaware
corporation (the “Sub-Advisor”).
WHEREAS,
the Advisor and the Sub-Advisor are registered investment advisers under the
Investment Advisers Act of 1940, as amended (the “Advisers Act”), and engage in
the business of providing investment management services; and
WHEREAS,
the Advisor has been retained to act as investment adviser pursuant to an
Investment Advisory Agreement, dated July 1, 2005 (the “Advisory Agreement”),
with MGI Funds (the “Trust”), a Delaware statutory trust registered with the
U.S. Securities and Exchange Commission (the “SEC”) as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
“1940 Act”), which consists of several separate series of shares, each having
its own investment objectives and policies, and which is authorized to create
additional series in the future; and
WHEREAS,
the Advisory Agreement permits the Advisor, subject to the supervision and
direction of the Trust’s Board of Trustees, to delegate certain of its duties
under the Advisory Agreement to other investment advisers, subject to the
requirements of the 1940 Act; and
WHEREAS,
the Advisor desires to retain the Sub-Advisor to assist the Advisor in the
provision of a continuous investment program for that portion of one or more of
the Trust’s series’ (each a “Fund”) assets which the Advisor will assign to the
Sub-Advisor (the “Sub-Advisor Assets”), and the Sub-Advisor is willing to render
such services, subject to the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of mutual covenants recited below, the parties agree
and promise as follows:
1. Appointment
as Sub-Advisor. The Advisor hereby appoints the Sub-Advisor to act as
investment adviser for and to manage the Sub-Advisor Assets, subject to the
supervision of the Advisor and the Board of Trustees of the Trust, and subject
to the terms of this Agreement; and the Sub-Advisor hereby accepts such
appointment. In such capacity, the Sub-Advisor shall be responsible
for the investment management of the Sub-Advisor Assets. The
Sub-Advisor agrees to exercise the same degree of skill, care and diligence in
performing its services under this Agreement as the Sub-Advisor exercises in
performing similar services with respect to other fiduciary accounts for which
the Sub-Advisor has investment responsibilities, and that a prudent manager
would exercise under the circumstances.
2. Duties
of the Sub-Advisor.
(a) Investments. The
Sub-Advisor is hereby authorized and directed, and hereby agrees, subject to the
stated investment objectives, policies and restrictions of each Fund as set
forth in such Fund’s prospectus and statement of additional information as
currently in effect and as amended from time to time (collectively referred to
as the “Prospectus”) and subject to the directions of the Advisor and the
Trust’s Board of Trustees, to purchase, hold and sell investments for the
Sub-Advisor Assets and to monitor such investments on an ongoing
basis. In providing these services, the Sub-Advisor will conduct an
ongoing program of investment, evaluation and, if appropriate, sale and
reinvestment of the Sub-Advisor Assets. The Advisor agrees to provide
the Sub-Advisor information concerning (i) a Fund; (ii) its assets available or
to become available for investment; and (iii) the conditions of a Fund’s or the
Trust’s affairs as relevant to the Sub-Advisor.
(b) Compliance
with Applicable Laws, Governing Documents and Trust Compliance
Procedures. In the performance of its duties and obligations under
this Agreement, the Sub-Advisor shall, with respect to Sub-Advisor Assets, (i)
act in conformity with: (A) the Trust’s Agreement and Declaration of
Trust (the “Declaration of Trust”) and By-Laws; (B) the Prospectus; (C) the
policies and procedures for compliance by the Trust with the Federal Securities
Laws (as that term is defined in Rule 38a-1 under the 0000 Xxx) applicable to
the services provided by the Sub-Advisor hereunder and provided to the
Sub-Advisor (together, the “Trust Compliance Procedures”); and (D) the
instructions and directions received in writing from the Advisor or the Trustees
of the Trust; and (ii) conform to and comply with the requirements of the 1940
Act, the Advisers Act, and all other federal laws applicable to registered
investment companies’ and Sub-Advisors’ duties under this
Agreement. The Advisor will provide the Sub-Advisor with any
materials or information that the Sub-Advisor may reasonably request to enable
it to perform its duties and obligations under this Agreement. The
Advisor acknowledges that the Sub-Advisor is not the compliance agent for the
Funds or the Advisor, and does not have access to all of the Funds’ books and
records necessary to perform certain compliance testing. However, to
the extent the Sub-Advisor has agreed to perform the services specified in this
Agreement, the Sub-Advisor shall perform compliance testing based upon its books
and records with respect to the Fund(s), which comprise a portion of the Funds’
books and records, and upon information and written instructions received from
the Fund and/or the Advisor.
The
Advisor will provide the Sub-Advisor with reasonable advance notice, in writing,
of: (i) any change in a Fund’s investment objectives, policies and
restrictions as stated in the Prospectus; (ii) any change to the Trust’s
Declaration of Trust or By-Laws; or (iii) any material change in the Trust
Compliance Procedures; and the Sub-Advisor, in the performance of its duties and
obligations under this Agreement, shall manage the Sub-Advisor Assets
consistently with such changes, provided the Sub-Advisor has received such prior
notice of the effectiveness of such changes from the Trust or the
Advisor. In addition to such notice, the Advisor shall provide to the
Sub-Advisor a copy of a modified Prospectus and copies of the revised Trust
Compliance Procedures, as applicable, reflecting such changes. The
Sub-Advisor hereby agrees to provide to the Advisor in a timely manner, in
writing, such information relating to the Sub-Advisor and its relationship to,
and actions for, a Fund as may be required to be contained in the Prospectus or
in the Trust’s registration statement on Form N-1A, or otherwise as reasonably
requested by the Advisor.
In order
to assist the Trust and the Trust’s Chief Compliance Officer (the “Trust CCO”)
to satisfy the requirements contained in Rule 38a-1 under the 1940 Act, the
Sub-Advisor shall provide to the Trust CCO: (i) direct access to the
Sub-Advisor’s chief compliance officer (the “Sub-Advisor CCO”), as reasonably
requested by the Trust CCO; (ii) quarterly reports confirming that the
Sub-Advisor has complied with the Trust Compliance Procedures in managing the
Sub-Advisor Assets; and (iii) quarterly certifications that there were no
Material Compliance Matters (as that term is defined by Rule 38a-1(e)(2)) that
arose under the Trust Compliance Procedures that related to the Sub-Advisor’s
management of the Sub-Advisor Assets.
(c) Sub-Advisor
Compliance Policies and Procedures. The Sub-Advisor shall promptly
provide the Trust CCO with copies of: (i) the Sub-Advisor’s policies
and procedures for compliance by the Sub-Advisor with the Federal Securities
Laws applicable to the services provided by the Sub-Advisor under this Agreement
(together, the “Sub-Advisor Compliance Procedures”), and (ii) any material
changes to the Sub-Advisor Compliance Procedures. The Sub-Advisor
shall cooperate fully with the Trust CCO so as to facilitate the Trust CCO’s
performance of the Trust CCO’s responsibilities under Rule 38a-1 to review,
evaluate and report to the Trust’s Board of Trustees on the operation of the
Sub-Advisor Compliance Procedures, and shall promptly report to the Trust CCO
any Material Compliance Matter arising under the Sub-Advisor Compliance
Procedures involving the Sub-Advisor Assets. The Sub-Advisor shall
provide to the Trust CCO: (i) quarterly reports confirming the
Sub-Advisor’s compliance with the Sub-Advisor Compliance Procedures in managing
the Sub-Advisor Assets, and (ii) certifications that there were no Material
Compliance Matters involving the Sub-Advisor that arose under the Sub-Advisor
Compliance Procedures that affected the Sub-Advisor Assets. At least
annually, the Sub-Advisor shall provide a certification to the Trust CCO to the
effect that the Sub-Advisor has in place and has implemented policies and
procedures that are reasonably designed to ensure compliance by the Sub-Advisor
with the Federal Securities Laws.
(d) Voting
of Proxies. Unless otherwise instructed by the Advisor or the Trust,
the Sub-Advisor shall have the power, discretion and responsibility to vote,
either in person or by proxy, all securities in which the Sub-Advisor Assets may
be invested from time to time, and shall not be required to seek instructions
from the Advisor, the Trust or a Fund. The Sub-Advisor shall also
provide its Proxy Voting Policy (the “Proxy Policy”), and, if requested by the
Advisor, a summary of such Proxy Policy suitable for including in the
Prospectus, and will provide the Advisor with any material amendment to the
Proxy Policy within a reasonable time after such amendment has taken
effect. If both the Sub-Advisor and another person managing assets of
a Fund have invested in the same security, the Sub-Advisor and such other entity
will each have the power to vote its pro rata share of the
security.
(e) Agent. Subject
to any other written instructions of the Advisor or the Trust, the Sub-Advisor
is hereby appointed the Advisor’s and the Trust’s agent and attorney-in-fact for
the limited purposes of executing account documentation, agreements, contracts
and other documents as the Sub-Advisor shall be requested by brokers, dealers,
counterparties and other persons in connection with its management of the
Sub-Advisor Assets, provided that, the Sub-Advisor’s actions in executing such
documents shall comply with federal regulations, all other federal laws
applicable to registered investment companies and the Sub-Advisor’s duties and
obligations under this Agreement and the Trust’s governing
documents.
(f) Brokerage. The
Sub-Advisor will place orders pursuant to the Sub-Advisor’s investment
determinations for a Fund either directly with an issuer or with any broker or
dealer selected by the Sub-Advisor, pursuant to this paragraph. In
executing portfolio transactions and selecting brokers or dealers, the
Sub-Advisor will use its best efforts to seek, on behalf of a Fund, the best
overall execution available. In assessing the best overall terms
available for any transaction, the Sub-Advisor shall consider all factors that
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. In evaluating the
best overall terms available, and in selecting the broker or dealer to execute a
particular transaction, the Sub-Advisor may also consider the brokerage and
research services (as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended (the “1934 Act”)) provided to a Fund and/or
other accounts over which the Sub-Advisor may exercise investment
discretion. The Sub-Advisor is authorized to pay to a broker or
dealer who provides such brokerage and research services a commission for
executing a portfolio transaction for any of the Funds that is in excess of the
amount of commission another broker or dealer would have charged for effecting
that transaction if, but only if, the Sub-Advisor determines in 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 that
particular transaction or in terms of the overall responsibilities of the
Sub-Advisor to a Fund. Such authorization is subject to termination
at any time by the Board of Trustees of the Trust for any reason. In
addition, the Sub-Advisor is authorized to allocate purchase and sale orders for
portfolio securities to brokers or dealers that are affiliated with the Advisor,
the Sub-Advisor, the Trust’s principal underwriter, or other sub-advisors (if
applicable) if the Sub-Advisor believes that the quality of the transaction and
the commission are comparable to what they would be with other qualified firms,
and provided that the transactions are consistent with the Trust’s Rule 17e-1
and Rule 10f-3 procedures. The Advisor will identify all brokers and
dealers affiliated with the Trust, the Advisor, and the Trust’s principal
underwriter (and the other Sub-Advisors of the Fund, to the extent such
information is necessary for the Sub-Advisor to comply with applicable federal
securities laws), other than those whose sole business is the distribution of
mutual fund shares, who effect securities transactions for
customers. The Advisor shall promptly furnish a written notice to the
Sub-Advisor if the information so provided is no longer accurate.
In
connection with its management of the Sub-Advisor Assets and consistent with its
fiduciary obligation to the Sub-Advisor Assets and other clients, the
Sub-Advisor, to the extent permitted by applicable laws and regulations, may,
but shall be under no obligation to, aggregate the securities or futures
contracts to be sold or purchased in order to obtain the most favorable price or
lower brokerage commissions and efficient execution. In such event,
allocation of the securities or futures contracts so purchased or sold, as well
as the expenses incurred in the transaction, will be made by the Sub-Advisor in
the manner the Sub-Advisor considers to be, over time, the most equitable and
consistent with its fiduciary obligations to the Sub-Advisor’s Assets and to
such other clients.
(g) Securities
Transactions. In no instance will any Fund’s portfolio securities be
purchased from or sold to the Advisor, the Sub-Advisor, the Trust’s principal
underwriter, or any affiliated person the Trust, the Advisor, the Sub-Advisor or
the Trust’s principal underwriter, acting as principal in the transaction,
except to the extent permitted by the SEC and the 1940 Act, including Rule 17a-7
thereunder. The Advisor will periodically provide the Sub-Advisor
with a list of the affiliates of the Advisor or the Funds to which investment
restrictions apply, and will specifically identify in writing (a) all publicly
traded companies in which the Funds may not invest, together with ticker symbols
for all such companies, and (b) any affiliated brokers and any restrictions that
apply to the use of those brokers by the Funds.
The
Sub-Advisor acknowledges that the Advisor and the Trust may rely on Rule 17a-7,
Rule 17a-10, Rule 10f-3, Rule 12d3-1 and Rule 17e-1 under the 1940 Act, and the
Sub-Advisor hereby agrees that it shall not consult with any other sub-advisor
to the Fund with respect to transactions in securities for the Sub-Advisor
Assets or any other transactions of Fund assets.
The
Sub-Advisor is authorized to engage in transactions in which the Sub-Advisor, or
an affiliate of the Sub-Advisor, acts as a broker for both the Fund and for
another party on the other side of the transaction (“agency cross
transactions”). The Sub-Advisor shall effect any such agency cross
transactions in compliance with Rule 206(3)-2 under the Advisers Act and any
other applicable provisions of the federal securities laws and shall provide the
Advisor with periodic reports describing such agency cross
transactions. By execution of this Agreement, the Advisor authorizes
the Sub-Advisor or its affiliates to engage in agency cross transactions, as
described above. The Advisor may revoke its consent at any time by
written notice to the Sub-Advisor.
The
Sub-Advisor hereby represents that it has implemented policies and procedures
that will prevent the disclosure by it, its employees or its agents of the
Trust’s portfolio holdings to any person or entity other than the Advisor, the
Trust’s custodian, or other persons expressly designated by the
Advisor.
(h) Code
of Ethics. The Sub-Advisor hereby represents that it has adopted
policies and procedures and a code of ethics that meet the requirements of Rule
17j-1 under the 1940 Act and Rule 204A-1 under the Advisers
Act. Copies of such policies and procedures and code of ethics and
any changes or supplements thereto shall be delivered to the Advisor and the
Trust, and any material violation of such policies, and procedures and code of
ethics by personnel of the Sub-Advisor, the sanctions imposed in response
thereto, and any issues arising under such policies, and procedures and code of
ethics shall be reported to the Advisor and the Trust at the times and in the
format reasonably requested by the Advisor and the Board of
Trustees.
(i) Books
and Records. The Sub-Advisor shall maintain separate detailed records
of all matters pertaining to the Sub-Advisor Assets, including, without
limitation, brokerage and other records of all securities
transactions. Any records required to be maintained and preserved
pursuant to the provisions of Rule 31a-1 and Rule 31a-2 promulgated under the
1940 Act that are prepared or maintained by the Sub-Advisor on behalf of the
Trust are the property of the Trust and will be surrendered promptly to the
Trust upon request. The Sub-Advisor further agrees to preserve for
the periods prescribed in Rule 31a-2 under the 1940 Act the records required to
be maintained under Rule 31a-1 under the 1940 Act.
(j) Information
Concerning Sub-Advisor Assets and the Sub-Advisor. From time to time
as the Advisor, and any consultants designated by the Advisor, or the Trust may
request, the Sub-Advisor will furnish the requesting party reports on portfolio
transactions of the Sub-Advisor Assets and reports on Sub-Advisor Assets held in
the portfolio, all in such detail as the Advisor, its consultant(s) or the Trust
may reasonably request. The Sub-Advisor will provide the Advisor with
information (including information that is required to be disclosed in the
Prospectus) with respect to the portfolio managers responsible for Sub-Advisor
Assets, any changes in the portfolio managers responsible for Sub-Advisor
Assets, any material changes in the ownership or management of the Sub-Advisor,
or of material changes in the control of the Sub-Advisor. The
Sub-Advisor will promptly notify the Advisor of any pending investigation,
material litigation, administrative proceeding or any other significant
regulatory inquiry that could reasonably be expected to have a material adverse
effect on the Sub-Advisor’s provision of services pursuant to this
Agreement. Upon reasonable request, the Sub-Advisor will make
available its officers and employees to meet with the Trust’s Board of Trustees
to review the Sub-Advisor Assets.
(k) Valuation
of Sub-Advisor Assets. The Sub-Advisor agrees to monitor the
Sub-Advisor Assets and to use commercially reasonable efforts to notify the
Advisor or its designee on any day that the Sub-Advisor determines that a
significant event has occurred with respect to one or more securities held in
the Sub-Advisor Assets that would materially affect the value of such securities
(provided that the Sub-Advisor shall not be responsible for providing
information based on valuations provided by third party services which value
securities based upon changes in one or more broad-based indices). As
requested by the Advisor or the Trust’s Valuation Committee, the Sub-Advisor
hereby agrees to provide additional reasonable assistance to the Valuation
Committee of the Trust, the Advisor and the Trust’s pricing agents in valuing
Sub-Advisor Assets held in the portfolio. Such assistance may include
fair value pricing of portfolio securities, as requested by the
Advisor. The Sub-Advisor agrees that it will act, at all times, in
accordance with the Trust’s Valuation Procedures, and will provide such
certifications or sub-certifications relating to valuation and liquidity in such
forms as may be agreed upon from time to time by the Advisor and the
Sub-Advisor. Notwithstanding the foregoing, the Sub-Advisor shall not
be responsible for any valuation determinations made with respect to the
Fund.
The
Sub-Advisor also will provide such reasonable information or perform such
reasonable additional acts as are customarily performed by a Sub-Advisor and may
be required for a Fund or the Advisor to comply with their respective
obligations under applicable federal securities laws, including, without
limitation, the 1940 Act, the Advisers Act, the 1934 Act, the Securities Act of
1933, as amended (the “Securities Act”), and any rule or regulation
thereunder. The Advisor acknowledges that the Sub-Advisor shall not
be responsible for providing fund administration services, such as fund
accounting and tax services, to the Fund.
(l) Custody
Arrangements. The Sub-Advisor, on each business day, shall provide
the Advisor, its consultant(s) and the Trust’s custodian such information as the
Advisor and the Trust’s custodian may reasonably request relating to all
transactions concerning the Sub-Advisor Assets.
(m) Historical
Performance Information. To the extent agreed upon by the parties,
the Sub-Advisor will provide the Trust with historical performance information
on similarly managed investment companies or for other accounts to be included
in the Prospectus or for any other uses permitted by applicable
law.
(n) Regulatory
Examinations. The Sub-Advisor will cooperate promptly and fully with
the Advisor and/or the Trust in responding to any regulatory or compliance
examinations or inspections (including information requests) relating to the
Trust, the Fund or the Advisor and applicable to the services provided by the
Sub-Advisor under this Agreement brought by any governmental or regulatory
authorities having appropriate jurisdiction (including, but not limited to, the
SEC).
3. Independent
Contractor. In the performance of its duties hereunder, the
Sub-Advisor is and shall be an independent contractor and, unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent a Fund, the Trust or the Advisor in any way or
otherwise be deemed an agent of a Fund, the Trust or the Advisor.
4. Services
to Other Clients. Nothing herein contained shall limit the freedom of
the Sub-Advisor or any affiliated person of the Sub-Advisor to render investment
advisory, supervisory and other services to other investment companies, to act
as investment adviser or investment counselor to other persons, firms or
corporations, or to engage in other business activities. It is
understood that the Sub-Advisor may give advice and take action for its other
clients that may differ from advice given, or the timing or nature of action
taken, for a Fund. The Sub-Advisor is not obligated to initiate
transactions for a Fund in any security that the Sub-Advisor, its principals,
affiliates or employees may purchase or sell for its or their own accounts or
other clients.
5. Expenses. During
the term of this Agreement, the Sub-Advisor will pay all expenses incurred by it
in connection with its activities under this Agreement, other than the costs of
securities, commodities and other investments (including brokerage commissions
and other transaction charges, if any) purchased or otherwise acquired, or sold
or otherwise disposed of, for a Fund. The Sub-Advisor, at its sole
expense, shall employ or associate itself with such persons as it believes to be
particularly fitted to assist it in the execution of its duties under this
Agreement. The Trust or the Advisor, as the case may be, shall
reimburse the Sub-Advisor for any expenses as may be reasonably incurred by the
Sub-Advisor, at the request of and on behalf of a Fund or the
Advisor. The Sub-Advisor shall keep and supply to the Trust and the
Advisor reasonable records of all such expenses.
6. Compensation. For
the services provided and the expenses assumed with respect to a Fund pursuant
to this Agreement, the Sub-Advisor will be entitled to the fee listed for the
Fund(s) on Exhibit A. Such fees will be computed and accrued daily
and payable in arrears no later than the seventh (7th) business day following
the end of each quarter, from the Trust on behalf of the Fund(s), calculated at
an annual rate based on the daily net assets of the Sub-Advisor
Assets.
If this
Agreement is terminated prior to the end of any calendar quarter, the fee shall
be prorated for the portion of any quarter in which this Agreement is in effect
according to the proportion which the number of calendar days, during which this
Agreement is in effect, bears to the number of calendar days in the quarter, and
shall be payable within ten (10) days after the date of
termination.
7. Representations
and Warranties of the Sub-Advisor. The Sub-Advisor represents and
warrants to the Advisor and the Trust as follows:
(a) The
Sub-Advisor is registered as an investment adviser under the Advisers
Act;
(b) The
Sub-Advisor is a corporation, duly organized and validly existing under the laws
of Delaware, with the power to own and possess its assets and carry on its
business as it is now being conducted;
(c) The
execution, delivery and performance by the Sub-Advisor of this Agreement are
within the Sub-Advisor’s powers and have been duly authorized by all necessary
action on the part of its Board of Directors and no action by or in respect of,
or filing with, any governmental body, agency or official is required on the
part of the Sub-Advisor for the execution, delivery and performance by the
Sub-Advisor of this Agreement, and the execution, delivery and performance by
the Sub-Advisor of this Agreement do not contravene or constitute a default
under (i) any provision of applicable law, rule or regulation; (ii) the
Sub-Advisor’s governing instruments; or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon the Sub-Advisor;
and
(d) The
Form ADV of the Sub-Advisor previously provided to the Advisor (a copy of which
is attached as Exhibit B to this Agreement) is a true and complete copy of the
form as currently filed with the SEC and the information contained therein is
accurate and complete in all material respects and does not omit to state any
material fact necessary in order to make the statements made, in light of the
circumstances under which they are made, not misleading. The
Sub-Advisor will promptly provide the Advisor and the Trust with a complete copy
of all subsequent amendments to its Form ADV.
8. Representations
and Warranties of the Advisor. The Advisor represents and warrants to
the Sub-Advisor and the Trust as follows:
(a) The
Advisor is registered as an investment adviser under the Advisers
Act;
(b) The
Advisor is a corporation duly organized and validly existing under the laws of
the State of Delaware, with the power to own and possess its assets and carry on
its business as it is now being conducted;
(c) The
execution, delivery and performance by the Advisor of this Agreement are within
the Advisor’s powers and have been duly authorized by all necessary action on
the part of its Board of Directors, and no action by or in respect of, or filing
with, any governmental body, agency or official is required on the part of the
Advisor for the execution, delivery and performance by the Advisor of this
Agreement, and the execution, delivery and performance by the Advisor of this
Agreement do not contravene or constitute a default under (i) any provision of
applicable law, rule or regulation; (ii) the Advisor’s governing instruments; or
(iii) any agreement, judgment, injunction, order, decree or other instrument
binding upon the Advisor;
(d) The
Advisor acknowledges that it received a copy of the Sub-Advisor’s Form ADV (a
copy of which is attached as Exhibit B) prior to the execution of this
Agreement;
(e) The
Advisor and the Trust have duly entered into the Advisory Agreement pursuant to
which the Trust authorized the Advisor to enter into this Agreement;
and
(f) The
Advisor and the Trust have policies and procedures designed to detect and deter
disruptive trading practices, including “market timing,” and the Advisor and the
Trust each agree that they will continue to enforce and abide by such policies
and procedures, as amended from time to time, and comply with all existing and
future laws relating to such matters or to the purchase and sale of interests in
the Funds generally.
9. Survival
of Representations and Warranties; Duty to Update Information. All
representations and warranties made by the Sub-Advisor and the Advisor pursuant
to Sections 7 and 8 of this Agreement, respectively, shall survive for the
duration of this Agreement and the parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing representations
and warranties are no longer true.
10. Liability
and Indemnification.
(a) Liability. The
duties of the Sub-Advisor shall be confined to those expressly set forth herein,
with respect to the Sub-Advisor Assets. The Sub-Advisor shall not be
liable for any loss arising out of any portfolio investment or disposition
hereunder, except a loss resulting from willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder, except as may otherwise be provided
under provisions of applicable state law that cannot be waived or modified
hereby. Under no circumstances shall the Sub-Advisor be liable for
any loss arising out of any act or omission taken by another sub-advisor, or any
other third party, in respect of any portion of the Trust’s assets not managed
by the Sub-Advisor pursuant to this Agreement. Under no circumstances
shall either party hereto be liable to the other for special, punitive or
consequential damages, arising under or in connection with this Agreement, even
if previously informed of the possibility of such damages.
(b) Indemnification. The
Sub-Advisor shall indemnify the Advisor, the Trust and each Fund, and their
respective affiliates and controlling persons (the “Sub-Advisor Indemnified
Persons”) for any liability and expenses, including reasonable attorneys’ fees,
which the Advisor, the Trust or a Fund and their respective affiliates and
controlling persons may sustain as a result of the Sub-Advisor’s willful
misfeasance, bad faith, gross negligence, or reckless disregard of its duties
hereunder; provided, however, that the Sub-Advisor Indemnified Persons shall not
be indemnified for any liability or expenses which may be sustained as a result
of the Advisor’s willful misfeasance, bad faith, gross negligence, or reckless
disregard of its duties hereunder.
The
Advisor shall indemnify the Sub-Advisor, its affiliates and its controlling
persons (the “Advisor Indemnified Persons”) for any liability and expenses,
including reasonable attorneys’ fees, howsoever arising from, or in connection
with, the Advisor’s breach of this Agreement or its representations and
warranties herein or as a result of the Advisor’s willful misfeasance, bad
faith, gross negligence, reckless disregard of its duties hereunder or violation
of applicable law; provided, however, that the Advisor Indemnified Persons shall
not be indemnified for any liability or expenses which may be sustained as a
result of the Sub-Advisor’s willful misfeasance, bad faith, gross negligence, or
reckless disregard of its duties hereunder.
11. Duration
and Termination.
(a) Duration. This
Agreement, unless sooner terminated as provided herein, shall for the Fund(s)
listed on Exhibit A attached hereto remain in effect from the date of execution
(the “Effective Date”), until two years from the Effective Date, and thereafter,
for periods of one year, so long as such continuance thereafter is specifically
approved at least annually (i) by the vote of a majority of those Trustees of
the Trust who are not interested persons of any party to this Agreement, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Trustees of the Trust, or by the vote of a majority of the outstanding
voting securities of each Fund (except as such vote may be unnecessary pursuant
to relief granted by an exemptive order from the SEC). The foregoing
requirement that continuance of this Agreement be “specifically approved at
least annually” shall be construed in a manner consistent with the 1940 Act and
the rules and regulations thereunder.
(b) Termination. This
Agreement may be terminated as to any Fund at any time, without the payment of
any penalty by: (i) the vote of a majority of the Trustees of the
Trust, the vote of a majority of the outstanding voting securities of the Fund
(ii) the Advisor on not less than 30 days written notice to the Sub-Advisor; or
(iii) the Sub-Advisor on not less than 90 days written notice to the Advisor and
the Trust. This Agreement may also be terminated as to any Fund at
any time by any party hereto immediately upon written notice to the other
parties in the event of a breach of any provision to this Agreement by any of
the parties.
This
Agreement shall not be assigned and shall terminate automatically in the event
of its assignment, except as provided otherwise by any rule, exemptive order
issued by the SEC, or No Action Letter provided or pursuant to the 1940 Act, or
upon the termination of the Advisory Agreement. In the event that
there is a proposed change in control of the Sub-Advisor that would act to
terminate this Agreement, if a vote of shareholders to approve continuation of
this Agreement is at that time deemed by counsel to the Trust to be required by
the 1940 Act or any rule or regulation thereunder, the Sub-Advisor agrees to
assume all reasonable costs associated with soliciting shareholders of the
appropriate Fund(s) of the Trust to approve continuation of this Agreement,
provided that Sub-Advisor shall not be responsible for such costs to the extent
they exceed $25,000.. Such expenses include the costs of preparation
and mailing of a proxy statement, and of soliciting proxies. In the
event that such proposed change in control of the Sub-Advisor shall occur
following either: (i) receipt by the Advisor and the Trust of an
exemptive order issued by the SEC with respect to the appointment of
sub-advisors absent shareholder approval, or (ii) the adoption of proposed Rule
15a-5 under the 1940 Act, the Sub-Advisor agrees to assume all reasonable costs
and expenses (including the costs of mailing) associated with the preparation of
a statement, required by the exemptive order or Rule 15a-5, containing all
information that would be included in a proxy statement (an “Information
Statement”). In addition, if the Sub-Advisor shall resign except as
permitted by subsection 11(b)(iii) above after notice to the Adviser of a
proposed change of control in the Sub-Advisor, and such change of control would
occur before the second anniversary of this Agreement, the Sub-Advisor agrees to
assume all reasonable costs and expenses (including the costs of mailing)
associated with the preparation of an Information Statement; provided that the
Sub-Advisor shall not be responsible for such costs to the extent they exceed
$25,000.
This
Agreement shall extend to and bind the heirs, executors, administrators and
successors of the parties hereto.
12. Amendment. This
Agreement may be amended by mutual consent of the parties, provided that the
terms of any material amendment shall be approved by: (a) the Trust’s
Board of Trustees, and (b) the vote of a majority of those Trustees of the Trust
who are not interested persons of any party to this Agreement cast in person at
a meeting called for the purpose of voting on such approval, if such approval is
required by applicable law, and unless otherwise permitted pursuant to exemptive
relief granted by the SEC or No Action position granted by the SEC or its staff,
by a vote of the majority of a Fund’s outstanding securities.
13. Confidentiality. Any
information or recommendations supplied by either the Advisor or the
Sub-Advisor, that are not otherwise in the public domain or previously known to
the other party in connection with the performance of its obligations and duties
hereunder, including portfolio holdings of the Trust, financial information or
other information relating to a party to this Agreement, are to be regarded as
confidential (“Confidential Information”) and held in the strictest
confidence. Except as may be required by applicable law or rule or as
requested by regulatory authorities having jurisdiction over a party to this
Agreement, Confidential Information may be used only by the party to which said
information has been communicated and such other persons as that party believes
are necessary to carry out the purposes of this Agreement, the custodian, and
such persons as the Advisor may designate in connection with the Sub-Advisor
Assets. Nothing in this Agreement shall be construed to prevent the
Sub-Advisor from giving other entities investment advice about, or trading on
their behalf, in the securities of a Fund or the Advisor.
14. Use
of Sub-Advisor’s Name. It is understood that the names “Massachusetts
Financial Services Company” and “MFS Investment Management”, or any derivative
thereof or logos associated with those names, are the valuable property of the
Sub-Advisor and its affiliates. During the term of this Agreement,
the Advisor shall have permission to use the Sub-Advisor’s name in the marketing
of the Fund, and agrees to furnish the Sub-Advisor at its principal office all
prospectuses, proxy statements and reports to shareholders prepared for
distribution to shareholders of the Fund or the public, which refer to the
Sub-Advisor in any way.
15. Notice. Any
notice, advice or report to be given pursuant to this Agreement shall be deemed
sufficient if delivered or mailed by registered, certified or overnight mail,
postage prepaid addressed by the party giving notice to the other party at the
last address furnished by the other party:
(a) If
to the Advisor:
Xxxxxx
Global Investments, Inc.
00 Xxxx
Xxxxxx
Xxxxxx,
XX 00000
Attention: Chief
Counsel
(b) If
to the Sub-Advisor:
Massachusetts Financial Services
Company
Legal Department – 20th
Floor
000
Xxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Xxxxx Xxxxxx
16. Governing
Law. This Agreement shall be governed by the internal laws of the
State of New York without regard to conflict of law principles; provided,
however that nothing herein shall be construed as being inconsistent with the
1940 Act. Where the effect of a requirement of the 1940 Act reflected
in any provision of this Agreement is altered by a rule, regulation or order of
the SEC, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
17. Entire
Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to this Agreement’s subject matter. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
18. Severability. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
19. Certain
Definitions. For the purposes of this Agreement and except as
otherwise provided herein, “interested person,” “affiliated person,”
“affiliates,” “controlling persons” and “assignment” shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions as
may be granted by the SEC, and the term “Fund” or “Funds” shall refer to those
Fund(s) for which the Sub-Advisor provides investment management services and as
are listed on Exhibit A to this Agreement.
20. Captions. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
ADVISOR
XXXXXX
GLOBAL INVESTMENTS, INC.
By: /s/
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Chief Investment Officer
SUB-ADVISOR
MASSACHUSETTS
FINANCIAL SERVICES COMPANY
By: /s/
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Executive Vice
President
EXHIBIT
A
BETWEEN
XXXXXX GLOBAL INVESTMENTS, INC.
AND
MASSACHUSETTS
FINANCIAL SERVICES COMPANY
November
13, 2009
MGI
NON-US CORE EQUITY FUND
FEE
SCHEDULE
ASSETS COMPENSATION
On first
$100
Million 0.45%
On the
next $150
Million 0.38%
On assets
over $250
Million 0.35%
Global
Fee Arrangement: The parties hereto agree that, unless restricted by
law or regulation, the fee schedule set forth herein shall apply to all
“relationship assets” relating to portfolios of Xxxxxx Global Investments, Inc.
and its affiliates (collectively, “MGI” or the “Advisor”) managed by the
Sub-Advisor and each of its affiliates. For the purpose of
determining “relationship assets,” all international value portfolios managed by
the Sub-Advisor and its affiliates worldwide for MGI (collectively,
“Sub-Advisors Assets”) will be added together and applied against the fee
schedule set forth herein.
Computation
As soon
as practicable after the end of each calendar quarter, the Sub-Advisor shall
send to the Advisor a calculation (the “Calculation”) in reasonable detail of
the fee for the calendar quarter then ended as of the close of business on the
last day of such calendar quarter. The Advisor may approve or
disapprove the Calculation within ten (10) business days of its
receipt. In the event that the Calculation has been accurately
prepared in accordance with the terms of this Agreement, the Advisor shall pay
the fee to the Sub-Advisor. In the event of a dispute between the
parties regarding the accuracy of the Calculation, it is hereby agreed that all
discussions in resolution of such dispute will be conducted promptly and in good
faith.
The
foregoing fee shall be accrued for each calendar day and the sum of the daily
fee accruals shall be paid quarterly in arrears by the Advisor to the
Sub-Advisor as described herein. The daily fee accruals will be
computed by multiplying the fraction of one over the number of calendar days in
the year by the applicable annual rate set forth in the schedule above and
multiplying this product by the net assets of the Sub-Advisor Assets, as
determined in accordance with the Prospectus as of the close of business on the
previous business day on which the Trust was open for business. If
this Agreement is terminated prior to the end of any calendar quarter, the fee
shall be prorated for the portion of any quarter in which this Agreement is in
effect according to the proportion which the number of calendar days, during
which this Agreement is in effect, bears to the number of calendar days in the
quarter.
EXHIBIT
B
SUB-ADVISOR
FORM
ADV
(Please
attach)
