SUB-ADVISORY AGREEMENT
SUB-ADVISORY
AGREEMENT
AGREEMENT
made as of the 13th day of March, 2009 by and between Xxxxxx Global Investments,
Inc., a Delaware corporation (the “Advisor”), and Xxxxxx Xxxxxxx Investment
Management Inc., 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 provided to the Sub-Advisor; (B) the
Prospectus provided to the Sub-Advisor; (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) 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 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 or summaries of: (i) the Sub-Advisor’s
policies and procedures for compliance by the Sub-Advisor with the Federal
Securities Laws (together, the “Sub-Advisor Compliance Procedures”), and (ii)
any material changes to the Sub-Advisor Compliance Procedures. Notwithstanding
the foregoing, the Trust CCO may reasonably request and the Sub-Advisor shall
provide full copies of any procedure or policy that relate to the services
provided by the Sub-Advisor under this Agreement. 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 regarding the
Sub-Advisor’s compliance with the Sub-Advisor Compliance Procedures in managing
the Sub-Advisor Assets, and (ii) certifications regarding whether there were
any
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. The Trust and the Advisor acknowledge that the Sub-Advisor is
not the compliance agent for any Fund or for the Trust or the Advisor, and
does
not have access to all of each Fund’s books and records necessary to perform
certain compliance testing.
(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
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 material
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; provided, however, that the
Sub-Advisor may retain a copy of such records if required to do so by law or
regulation. 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 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 significant investigation, material litigation, administrative
proceeding or any other significant regulatory inquiry. 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 take reasonable
steps
to monitor the Sub-Advisor Assets and 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 such
that,
in the Sub-Advisor’s reasonable judgment, the price of the security(ies) as of
the close of trading is not a valid indicator of the value of the
security(ies). As requested by the Advisor or the Trust’s Valuation
Committee, the Sub-Advisor hereby agrees to provide additional 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 advice on 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 as provided to the
Sub-Advisor, and will provide such certifications or sub-certifications relating
to its compliance with the Trust’s Valuation Procedures as reasonably may be
requested, from time to time, by the Advisor or the Trust.
The
Sub-Advisor also will provide such information or perform such 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.
(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 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 the Fund(s) pursuant to this
Agreement, the Sub-Advisor will be entitled to an annual fee for the Fund(s)
as
described in Exhibit A. The Advisor may from time to time waive the
compensation it is entitled to receive from the Trust, however, and such waiver
will have no effect on the Advisor’s obligation to pay the Sub-Advisor the
compensation provided for herein.
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 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 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 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.
During
the term of this Agreement, the Trust and the Advisor agree to furnish to the
Sub-Advisor at its principal offices prior to use thereof copies of all
Registration Statements and amendments thereto, prospectuses, proxy statements,
reports to shareholders, sales literature or other material prepared for
distribution to shareholders of the Trust or any Series or to the public that
refer or relate in any way to the Sub-Advisor or any of its affiliates (other
than the Advisor), or that use any derivative of the Sub-Advisor’s name or logos
associated therewith. The Trust and the Advisor agree that they will not use
any
such material without the prior consent of the Sub-Advisor, which consent shall
not be unreasonably withheld. In the event of the termination of this Agreement,
the Trust and the Advisor will furnish to the Sub-Advisor copies of any of
the
above-mentioned materials that refer or relate in any way to the
Sub-Advisor. The Trust and Advisor will be deemed to have furnished
the foregoing documents by directing the Sub-Advisor to the appropriate internet
address or by sending documents as attachments to electronic mail messages
sent
to the Sub-Advisor.
The
Trust
and the Advisor will furnish to the Sub-Advisor such information relating to
either of them or the business affairs of the Trust as the Sub-Advisor shall
from time to time reasonably request in order to discharge its obligations
hereunder.
The
Advisor and the Trust agree that neither the Trust, the Advisor, nor affiliated
persons of the Trust or the Advisor shall give any information or make any
representations or statements in connection with the sale of shares of the
Series concerning the Sub-Advisor or the Series other than the information
or
representations contained in the Registration Statement, prospectus, or
statement of additional information for the Trust, as they may be amended or
supplemented from time to time, and reviewed and agreed to by the Sub-Advisor,
or in reports or proxy statements for the Trust, or in sales literature or
other
promotional material approved in advance by the Sub-Advisor, except with the
prior approval of the Sub-Advisor. Such approval will not be unreasonable
withheld by the Sub-Advisor and Sub-Advisor agrees to reasonable turnaround
times of and/all material submitted for approval.
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 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, 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, 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, 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, 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, or the Advisor, or (ii) the Sub-Advisor on not less
than
60 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. 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, 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 the amount of such costs under this section 11(b) in excess of $25,000.
Notwithstanding the foregoing, if in its sole reasonable judgment, the
Sub-Advisor determines that continuing to serve in its role as Sub-Advisor
under
this Agreement will expose it to unwanted reputational, regulatory, financial
or
other risks, then the Sub-Advisor will not assume the costs or expenses
(including the costs of mailing) associated in any way with the preparation
or
distribution of an Information Statement
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. 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.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention: Chief
Counsel
(b)
If to the Sub-Advisor:
Xxxxxx
Xxxxxxx Investment Management
Inc.
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx, 00000
Attention:
General Counsel
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.
SIGNATURE
PAGE FOLLOWS – REMAINDER OF PAGE IS BLANK
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
Name: Xxxxx
Xxxxxx
Title: Chief
Investment Officer
SUB-ADVISOR
XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC.
By:
/s/ Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Managing
Director
EXHIBIT
A
SUB-ADVISORY
AGREEMENT
BETWEEN
XXXXXX GLOBAL INVESTMENTS, INC.
AND
XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC.
March
13,
2009
MGI
Non-US Core Equity Fund
Fee
Schedule
Assets
Compensation
All
assets
0.43%
Computation
The
fee will be calculated (the
“Calculation”) and accrued daily and payable quarterly in arrears following the
last day of each calendar quarter. The Calculation is based on the annual fee
rate (listed above) multiplied against daily net assets of the Sub-Advisor
Assets, as provided by the Fund.
As
soon
as practicable after the end of each calendar quarter, the Sub-Advisor shall
send to the Advisor an invoice of
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 within thirty (30) days after
receipt of
such invoice. 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 (by the Fund) 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-Advisors 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,
and
shall be payable within thirty (30) days after the date of termination.
EXHIBIT
B
SUB-ADVISOR
FORM
ADV
(Please
attach)
