SUB-ADVISORY AGREEMENT
THIS SUB-ADVISORY AGREEMENT is made as of this 25th day of February,
2005 by and between PIONEER INVESTMENT MANAGEMENT, INC., a Delaware corporation
and a member of the UniCredito Italiano banking group, register of banking
groups with its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Adviser"), and Cullen Capital Management, LLC, a
Delaware limited liability company with its principal place of business at 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("Sub-Adviser").
W I T N E S S E T H
WHEREAS, the Adviser serves as investment manager to PIONEER CULLEN
VALUE FUND (the "Fund"), pursuant to a Management Agreement between the Fund and
the Adviser dated February 25, 2005 (the "Management Agreement");
WHEREAS, pursuant to authority granted to the Adviser by the Board of
Trustees of the Fund (the "Board") and pursuant to the provisions of the
Management Agreement, the Adviser has selected the Sub-Adviser to act as
investment sub-adviser of the Fund and to provide certain other services, as
more fully set forth below, and to perform such services under the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Adviser and the Sub-Adviser do hereby agree as follows:
1. The Sub-Adviser's Services.
(a) Investment Services. The Sub-Adviser shall act as
investment sub-adviser with respect to the Fund. In such capacity, the
Sub-Adviser shall, subject to the supervision of the Adviser and the
Board, regularly provide the Fund with investment research, advice and
supervision and shall furnish continuously an investment program for
the Fund, consistent with the investment objectives and policies of
the Fund. The Sub-Adviser shall determine, from time to time, what
securities shall be purchased for the Fund, what securities shall be
held or sold by the Fund and what portion of the Fund's assets shall
be held uninvested in cash, subject always to the provisions of the
Fund's Certificate of Trust, Agreement and Declaration of Trust,
By-Laws and its registration statement on Form N-1A (the "Registration
Statement") under the Investment Company Act of 1940, as amended (the
"1940 Act"), and under the Securities Act of 1933, as amended (the
"1933 Act"), covering the Fund's shares, as filed with the U.S.
Securities and Exchange Commission (the "Commission"), and to the
investment objectives, policies and restrictions of the Fund, as each
of the same shall be from time to time in effect. To carry out such
obligations, the Sub-Adviser shall exercise full discretion and act
for the Fund in the same manner and with the same force and effect as
the Fund itself might or could do with respect to purchases, sales or
other transactions, as well as with respect to all other such things
necessary or incidental to the furtherance or conduct of such
purchases, sales or other transactions. Notwithstanding the foregoing,
the Sub-Adviser shall, upon written instructions from the Adviser,
effect such portfolio transactions for the Fund as the Adviser may
from time to time direct. The Sub-Adviser
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shall have no responsibility hereunder or otherwise with respect to
any such transaction other than to effect such transaction in
accordance with the Adviser's instructions, including without limiting
the foregoing, any responsibility under sub-paragraph (b) of this
Paragraph 1. No reference in this Agreement to the Sub-Adviser having
full discretionary authority over the Fund's investments shall in any
way limit the right of the Adviser, in its sole discretion, to
establish or revise policies in connection with the management of the
Fund's assets or, subject to the foregoing, to otherwise exercise its
right to control the overall management of the Fund's assets.
(b) Compliance. The Sub-Adviser agrees to comply with the
requirements of the 1940 Act, the Investment Advisers Act of 1940(the
"Advisers Act"), the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the Commodity Exchange Act and the
respective rules and regulations thereunder, as applicable, as well as
with all other applicable federal and state laws, rules, regulations
and case law that relate to the services and relationships described
hereunder and to the conduct of its business as a registered
investment adviser. The Sub-Adviser also agrees to comply with the
objectives, policies and restrictions set forth in the Registration
Statement, as amended or supplemented, of the Fund, and with any
policies, guidelines, instructions and procedures approved by the
Board or the Adviser and provided to the Sub-Adviser. In selecting
portfolio securities for the Fund and performing the Sub-Adviser's
obligations hereunder, the Sub-Adviser shall conduct its activities in
such a manner as to cause the Fund to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), as applicable, for qualification as a regulated investment
company, subject to subparagraph (a) of this Section 1. The
Sub-Adviser shall maintain compliance procedures that it reasonably
believes are adequate to ensure its compliance with the foregoing. The
Sub-Adviser shall also maintain compliance procedures that it
reasonably believes are adequate to ensure its compliance with the
Advisers Act. No supervisory activity undertaken by the Adviser shall
limit the Sub-Adviser's full responsibility for any of the foregoing.
(c) Proxy Voting. The Board has the authority to determine
how proxies with respect to securities that are held by the Fund shall
be voted, and the Board has initially determined to delegate the
authority and responsibility to vote proxies for the Fund securities
to the Adviser. So long as proxy voting authority for the Fund has
been delegated to the Adviser, the Sub-Adviser shall provide such
assistance to the Adviser with respect to the voting of proxies for
the Fund as the Adviser may from time to time reasonably request, and
the Sub-Adviser shall promptly forward to the Adviser any information
or documents upon receipt necessary for the Adviser to exercise its
proxy voting responsibilities. The Sub-Adviser shall not vote proxies
with respect to the securities held by the Fund unless and until the
Board or the Adviser delegates such authority and responsibility to
the Sub-Adviser or otherwise instructs the Sub-Adviser to do so in
writing, whereupon the Sub-Adviser shall carry out such responsibility
in accordance with any instructions that the Board or the Adviser
shall provide from time to time and shall provide such reports and
keep such records relating to proxy voting as the Board or the Adviser
may reasonably request or as may be necessary for the Fund to comply
with the 1940 Act and other applicable law. Any such delegation of
proxy voting
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responsibility to the Sub-Adviser may be revoked or modified by the
Board or the Adviser at any time.
(d) Recordkeeping. The Sub-Adviser shall not be responsible
for the provision of administrative, bookkeeping or accounting
services to the Fund, except as otherwise provided herein or as may be
reasonably necessary for the Sub-Adviser to supply to the Adviser, the
Fund or the Board the information required to be supplied under this
Agreement.
The Sub-Adviser shall maintain separate books and detailed records
of all matters pertaining to the Fund's assets advised by the
Sub-Adviser required by sub-paragraphs (b)(5), (6), (7), (9), (10) and
(11) and paragraph (f) of Rule 31a-1 under the 1940 Act (other than
those records being maintained by the Adviser, custodian or transfer
agent appointed by the Fund) relating to Fund transactions hereunder,
and shall preserve such records for the periods and in a manner
prescribed therefore by Rule 31a-2 under the 1940 Act (the "Fund's
Books and Records"). The Fund's Books and Records shall be available
to the Adviser and the Board at any time upon request with reasonable
notice, copies of which shall be delivered to the Fund upon the
termination of this Agreement pursuant to Paragraph 11 of this
Agreement and shall be available for telecopying without delay during
any day the Fund is open for business.
(e) Holdings Information and Pricing. The Sub-Adviser shall
keep the Fund and the Adviser informed of developments materially
affecting the Fund's holdings, and shall, on its own initiative,
furnish the Fund and the Adviser from time to time with whatever
information the Sub-Adviser believes is appropriate for this purpose
and is readily available to the Sub-Adviser. The Sub-Adviser agrees to
immediately notify the Adviser if the Sub-Adviser believes that the
market quotations are not readily available for any security held by
the Fund or if the market price does not reflect the security's fair
value. In such instances, the Sub-Adviser shall provide assistance to
the Adviser and/or the Fund's pricing agent in making determinations
of the fair value of such portfolio securities in accordance with the
Fund's written valuation procedures..
(f) Cooperation with Agents of the Adviser and the Fund. The
Sub-Adviser agrees to 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, provide them with such
information with respect to securities held by 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.
2. Code of Ethics. The Sub-Adviser has adopted a written code of
ethics that it reasonably believes complies with the requirements of Rule 17j-1
under the 1940 Act, which it will provide to the Adviser and the Fund. The
Sub-Adviser shall comply and shall require its employees to comply in all
respects with the Sub-Adviser's Code of Ethics, as in effect from time to time.
Upon request, the Sub-Adviser shall provide the Fund with a (i) a copy of the
Sub-
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Adviser's current Code of Ethics, as in effect from time to time, and (ii)
certification that it has adopted procedures reasonably designed to prevent
Access Persons from engaging in any conduct prohibited by the Sub-Adviser's Code
of Ethics. Annually, the Sub-Adviser shall furnish a written report, which
complies with the requirements of Rule 17j-1, concerning the Sub-Adviser's Code
of Ethics to the Funds and the Adviser. The Sub-Adviser shall respond to
requests for information from the Adviser as to violations of the Code and any
sanctions imposed by the Sub-Adviser in connection with such violations. The
Sub-Adviser shall immediately notify the Adviser of any material violation of
the Code, whether or not such violation relates to any security held by the
Fund.
3. Information and Reporting. The Sub-Adviser shall promptly report
to the Adviser any material developments regarding portfolio securities of the
Fund that may of which the Sub-Adviser has knowledge, that materially affect the
Fund. In this regard, the Sub-Adviser shall provide the Fund, the Adviser, and
their respective officers with such periodic reports concerning the obligations
the Sub-Adviser has assumed under this Agreement as the Fund and the Adviser may
from time to time reasonably request. The Sub-Adviser shall promptly notify the
Adviser of any financial condition that is likely to impair the Sub-Adviser's
ability to perform its obligations under this Agreement.
(a) Notification of Breach / Compliance Reports. The
Sub-Adviser shall notify the Adviser immediately upon its detection of
(i)any failure on its part to manage the Fund in accordance with this
Agreement; or (ii) any breach by the Sub-Adviser of any of the
policies, guidelines or procedures of the Fund or the Adviser as
provided in writing to the Sub-Adviser or of the Sub-Adviser insofar
as they relate or reasonably would affect the performance of the
Sub-Adviser's responsibilities hereunder. In addition, the Sub-Adviser
shall provide a quarterly certification that is the Sub-Adviser has
managed the Fund in accordance with the provisions of this Agreement
in the form provided by the Adviser from time to time. The Sub-Adviser
acknowledges and agrees that the Adviser may, in its discretion,
provide such quarterly compliance certifications to the Board. The
Sub-Adviser agrees to correct any such failure on its part promptly
and to take any action that the Adviser may reasonably request in
connection with any such breach. The Sub-Adviser shall also provide
the officers of the Fund with supporting certifications in connection
with such certifications of the Fund's financial statements and
disclosure controls pursuant to the Xxxxxxxx-Xxxxx Act. The
Sub-Adviser, to the extent permissible, will promptly notify the
Adviser if (i) 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 federal or state securities laws or (ii) the
controlling stockholder changes or there otherwise is 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 0000 Xxx) has or is
proposed to occur.
(b) Inspection. Upon request, with at least 24 hours advance
notice, the Sub-Adviser subject to privacy and other laws agrees to
make its records and premises (including the availability of the
Sub-Adviser's employees for interviews) to the extent
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that they relate to the conduct of services provided by the
Sub-Adviser to the Fund or the Sub-Adviser's conduct of its business
as an investment adviser available for compliance audits by the
Adviser or the Fund's employees, accountants or counsel; in this
regard, the Fund and the Adviser acknowledge that the Sub-Adviser
shall have no obligations to make available proprietary information
unrelated to the services provided to the Fund or any information
related to other clients of the Sub-Adviser, except to the extent
necessary for the Adviser to confirm the absence of any conflict of
interest and compliance with any laws, rules or regulations in the
management of the Fund.
(c) Board and Filings Information. The Sub-Adviser will
provide the Adviser with any information reasonably requested
regarding its management of the Fund required for any meeting of the
Board, or for any shareholder report, amended registration statement,
proxy statement, or prospectus supplement to be filed by the Fund with
the Commission. The Sub-Adviser will make its officers and employees
available to meet with the Board from time to time on reasonable
notice to review the investments of the Fund in light of current and
prospective economic and market conditions and shall furnish to the
Board such information as may reasonably be necessary in order for the
Board to evaluate this Agreement or any proposed amendments thereto.
(d) Transaction Information. The Sub-Adviser shall furnish to
the Adviser such information concerning portfolio transactions as may
be necessary to enable the Adviser to perform such compliance testing
on the Fund and the Sub-Adviser's services as the Adviser may, in its
sole discretion, determine to be appropriate. The provision of such
information by the Sub-Adviser in no way relieves the Sub-Adviser of
its own compliance responsibilities for the Fund hereunder, as and to
the extent herein provided.
4. Brokerage.
(a) Principal and Agency Transactions. In connection with
purchases or sales of securities for the account of the Fund, neither
the Sub-Adviser nor any of its directors, officers, employees or
affiliated persons will act as a principal or agent or receive any
commission except as permitted by the 1940 Act.
(b) Placement of Orders. Except as set forth in
sub-paragraph (e) of this Section 4 the Sub-Adviser shall arrange for
the placing of all orders for the purchase and sale of securities for
the Fund's account with brokers or dealers selected by the
Sub-Adviser. In its selection of such brokers or dealers and the
placing of such orders, the Sub-Adviser is directed at all times to
seek for the Fund the most favorable execution and net price available
under the circumstances except as described herein. It is also
understood that it is desirable for the Fund that the Sub-Adviser have
access to supplemental investment and market research and security and
economic analyses provided by brokers who may execute brokerage
transactions at a higher cost to the Fund than may result when
allocating brokerage to other brokers, as consistent with Section
28(e) of the 1934 Act and any Commission staff interpretations
thereof. Therefore, the Sub-Adviser is authorized to place orders for
the purchase and sale of securities for the Fund with such brokers,
subject to guidelines established by the Adviser and provided in
writing to the Sub-Adviser by the Adviser or the Board from time to
time with respect to
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the extent and continuation of this practice. It is understood that
the services provided by such brokers may be useful to the Sub-Adviser
in connection with its or its affiliates' services to other clients.
In addition, subject to the Sub-Adviser's obligation to seek the most
favorable execution and net price available under the circumstances,
the Sub-Adviser to the extent legally permissible, may consider the
sale of the Fund's shares in selecting brokers and dealers. The
Sub-Adviser and not the Fund or the Adviser shall be liable for any
losses or costs resulting from the Sub-Adviser's errors in placing
trades on behalf of the Fund.
(c) Aggregated Transactions. On occasions when the
Sub-Adviser deems the purchase or sale of a security to be in the best
interest of the Fund as well as other clients of the Sub-Adviser, the
Sub-Adviser may, to the extent permitted by applicable law and
regulations, aggregate the order for securities to be sold or
purchased in order to obtain the most favorable execution and lower
brokerage commissions, if any. 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-Adviser
in the manner the Sub-Adviser considers to be the most equitable and
consistent with its fiduciary obligations to the Fund and to such
other clients.
(d) Affiliated Brokers. The Sub-Adviser or any of its
affiliates may act as broker in connection with the purchase or sale
of securities or other investments for the Fund, subject to: (a) the
requirement that the Sub-Adviser seek to obtain most favorable
execution and most favorable net price available under the
circumstances within the policy guidelines determined by the Board and
set forth in the Fund's current prospectus and SAI; (b) the provisions
of the Investment Company Act, the Advisers Act and the rules of the
Commission under such Acts; (c) the provisions of the 1934 Act; and
(d) other provisions of applicable law. These brokerage services are
not within the scope of the duties of the Sub-Adviser under this
Agreement. Subject to the requirements of applicable law and any
procedures adopted by the Board, the Sub-Adviser or its affiliates may
receive brokerage commissions, fees or other remuneration from the
Fund for these services in addition to the Sub-Adviser's fees for
services under this Agreement.
(e) Alternative Trading Arrangements. From time to time the
Sub-Adviser and the Adviser may agree that the Sub-Advisor will place
some or all of the trades for the Fund through the Adviser's trading
desk. In such event, the Adviser shall have complete authority to
determine the brokers or dealers through which any trade by the Fund
is placed through the Advisers trading desk and as to the timing and
manner of the execution of any such trade, although the Sub-Adviser
may give guidance. In such event, the Adviser shall be responsible for
obtaining most favorable execution and best net price available under
the circumstances for the Fund on trades placed by the Adviser and the
Sub-Adviser shall remain responsible only for the accurate placement
of orders on behalf of the Fund into the Adviser's trading system and
confirming the appropriate settlement of such transactions in
accordance with the orders placed.
5. Custody. Nothing in this Agreement shall permit the Sub-Adviser to
take or receive physical possession of cash, securities or other investments of
the Fund.
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6. Allocation of Charges and Expenses. The Sub-Adviser will bear its
own costs of providing its services hereunder. Other than as herein specifically
indicated, the Sub-Adviser shall not be responsible for the Fund's or the
Adviser's expenses, including brokerage and other expenses incurred in placing
orders for the purchase and sale of securities and other investment instruments.
Specifically, the Sub-Adviser will not be responsible for expenses of the Fund
or the Adviser, as the case may be, including, but not limited to, the
following: (i) charges and expenses for accounting, pricing and appraisal
services and related overhead, including, to the extent such services are
performed by personnel of the Sub-Adviser or its affiliates, office space and
facilities, and personnel compensation, training and benefits; (ii) the charges
and expenses of auditors; (iii) the charges and expenses of any custodian,
transfer agent, plan agent, dividend disbursing agent and registrar appointed by
the Fund; (iv) underwriting commissions and issue and transfer taxes chargeable
to the Fund in connection with securities transactions to which the Fund is a
party; (v) insurance premiums, interest charges, dues and fees for membership in
trade associations and all taxes and corporate fees payable by the Fund to
federal, state or other governmental agencies; (vi) fees and expenses involved
in registering and maintaining registrations of the Fund's shares with federal
regulatory agencies, state or blue sky securities agencies and foreign
jurisdictions, including the preparation of prospectuses and statements of
additional information for filing with such regulatory authorities; (vii) all
expenses of shareholders' and Board meetings and of preparing, printing and
distributing prospectuses, notices, proxy statements and all reports to
shareholders and to governmental agencies; (viii) charges and expenses of legal
counsel to the Fund and the Board; (ix) any distribution fees paid by the Fund
in accordance with Rule 12b-1 promulgated by the Commission pursuant to the 1940
Act; (x) compensation and expenses of the Board; (xi) the cost of preparing and
printing share certificates; (xii) interest on borrowed money, if any; and
(xiii) any other expense that the Fund, the Adviser or any other agent of the
Fund may incur (A) as a result of a change in the law or regulations, (B) as a
result of a mandate from the Board with associated costs of a character
generally assumed by similarly structured investment companies or (C) that is
similar to the expenses listed above, and that is approved by the Board
(including a majority of the Independent Trustees) as being an appropriate
expense of the Fund. The Fund or the Adviser, as the case may be, shall
reimburse the Sub-Adviser for any such expenses or other expenses of the Fund or
the Adviser, as may be reasonably incurred by such Sub-Adviser on behalf of the
Fund or the Adviser. The Sub-Adviser shall keep and supply to the Fund and the
Adviser adequate records of all such expenses.
7. Representations, Warranties and Covenants of the Sub-Adviser.
(a) Properly Licensed. The Sub-Adviser is registered as an
investment adviser under the Advisers Act, and will remain so
registered for the duration of this Agreement. The Sub-Adviser agrees
to promptly notify the Adviser of the occurrence of any event that
would disqualify the Sub-Adviser from serving as an investment adviser
to an investment company. The Sub-Adviser is in compliance in all
material respects with all applicable federal and state law in
connection with its investment management operations.
(b) ADV Disclosure. The Sub-Adviser has provided the Adviser
with a copy of its Form ADV as most recently filed with the SEC and
will, promptly after filing any amendment to its Form ADV with the
SEC, furnish a copy of such amendments to the
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Adviser. The information contained in the Sub-Adviser's Form ADV 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 were made, not
misleading.
(c) Fund Disclosure Documents. The Sub-Adviser has reviewed
and will in the future review, the Registration Statement, and any
amendments or supplements thereto, the annual or semi-annual reports
to shareholders, other reports filed with the Commission and any
marketing material of the Fund (collectively the "Disclosure
Documents") and represents and warrants that with respect to
disclosure about the Sub-Adviser, the manner in which the Sub-Adviser
manages the Fund or information relating directly or indirectly to the
Sub-Adviser, such Disclosure Documents contain or will contain, as of
the date thereof, no untrue statement of any material fact and does
not omit any statement of material fact which was required to be
stated therein or necessary to make the statements contained therein
not misleading.
(d) No Statutory Disqualification As An Investment Adviser.
The Sub-Adviser is not prohibited by the Advisers Act or the 1940 Act
from performing the services contemplated by this Agreement, and to
the best knowledge of the Sub-Adviser, there is no proceeding or
investigation that is reasonably likely to result in the Sub-Adviser
being prohibited from performing the services contemplated by this
Agreement.
(e) Insurance. The Sub-Adviser shall maintain errors and
omissions and fidelity insurance equivalent in coverage and amounts to
the insurance maintained on the date of the Agreement from an
insurance provider that is in the business of regularly providing
insurance coverage to investment advisers. The Sub-Adviser shall
provide prior written notice to the Adviser (i) of any material
changes in its insurance policies or insurance coverage; or (ii) if
any material claims will be made on its insurance policies.
Furthermore, it shall upon request provide to the Adviser any
information it may reasonably require concerning the amount of or
scope of such insurance. The Sub-Adviser's insurance shall, at a
minimum, cover errors and omissions of the Sub-Adviser.
(f) Competent Staff. The Sub-Adviser shall ensure that, in
the Sub-Adviser's reasonable judgment, sufficient and competent
investment management, administrative and compliance staff experienced
in managing accounts similar to the Fund shall have charge at all
times of the conduct of, and shall maintain close supervision of, the
investment and management of the Fund. For avoidance of doubt, the
Sub-Adviser shall satisfy itself that any affiliate or third party on
whom it relies in order to perform its duties hereunder complies with
the foregoing.
(g) No Detrimental Agreement. The Sub-Adviser represents and
warrants that it has no arrangement or understanding with any party
that would prevent the Sub-Adviser from performing its
responsibilities hereunder.
(h) Conflicts. The Sub-Adviser shall act honestly, in good
faith and in the best interests of the Funds including requiring any
of its personnel with knowledge of the
8
Fund's activities to place the interest of the Fund first, ahead of
their own interests, in all personal trading scenarios that may
involve a conflict of interest with the Fund.
(i) Representations. The representations and warranties in
this Section 7 shall be deemed to be made on the date this Agreement
is executed and at the time of delivery of the monthly compliance
report required by Section 3(a), whether or not specifically
referenced in such certificate.
(j) Use Of The Name "Cullen". Subject to any notice provided
to the Adviser pursuant to Section 15, the Sub-Adviser represents and
warrants that is has the right to use the name "Cullen" in connection
with its services to the Fund and that there are no threatened or
existing actions, claims, litigation or proceedings that would
adversely affect or prejudice the rights of the Sub-Adviser, Adviser
or Fund to use the name "Cullen," subject to the provisions of Section
15 below.
8. Sub-Adviser's Compensation. The Adviser shall pay to the
Sub-Adviser, as compensation for the Sub-Adviser's services hereunder, a fee,
determined as described in Schedule A that is attached hereto and made a part
hereof. Such fee shall be computed daily and paid monthly in arrears by the
Adviser. The Fund shall have no responsibility for any fee payable to the
Sub-Adviser. In the event that the fee paid to the Adviser for managing the Fund
is reduced by regulatory authorities or the Board for any reason whatsoever, the
fee hereunder shall be subject to the same percentage reduction.
The method for determining net assets of the Fund for purposes hereof
shall be the same as the method for determining net assets for purposes of
establishing the offering and redemption prices of Fund shares as described in
the Fund's prospectus. In the event of termination of this Agreement, the fee
provided in this Section shall be computed on the basis of the period ending on
the last business day on which this Agreement is in effect subject to a pro rata
adjustment based on the number of days elapsed in the current month as a
percentage of the total number of days in such month.
9. Independent Contractor. In the performance of its duties
hereunder, the Sub-Adviser 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 the Fund or the Adviser in any way or
otherwise be deemed to be an agent of the Fund or the Adviser. If any occasion
should arise in which the Sub-Adviser gives any advice to its clients concerning
the shares of the Fund, the Sub-Adviser will act solely as investment counsel
for such clients and not in any way on behalf of the Fund.
10. Assignment and Amendments. This Agreement shall automatically
terminate, without the payment of any penalty, in the event of (i) its
assignment, including any change in control, as defined in the 1940 Act, of the
Adviser or the Sub-Adviser, or (ii) in the event of the termination of the
Management Agreement; provided that such termination shall not relieve the
Adviser or the Sub-Adviser of any liability incurred hereunder.
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This Agreement may not be added to or changed orally and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
11. Duration and Termination.
(a) This Agreement shall become effective as of the date executed and
shall remain in full force and effect continually thereafter, subject to renewal
and unless terminated automatically as set forth in Section 12 hereof or until
terminated as follows:
(i) The Adviser may at any time terminate this
Agreement as to the Fund by not more than sixty (60) days' nor
less than thirty (30) days' written notice delivered or mailed by
registered mail, postage prepaid, to the Sub-Adviser. In
addition, the Fund may cause this Agreement to terminate with
respect to the Fund either (i) by vote of the Board or (ii) upon
the affirmative vote of a majority of the outstanding voting
securities of the Fund; or
(ii) The Sub-Adviser may at any time terminate this
Agreement by not more than sixty (60) days' nor less than thirty
(30) days' written notice delivered or mailed by registered mail,
postage prepaid, to the Adviser; or
(iii) This Agreement shall automatically terminate on
December 31st of any year, beginning on December 31, 2006, in
which its terms and renewal shall not have been approved by (A)
(i) a majority vote of the Board or (ii) the affirmative vote of
a majority of the outstanding voting securities of the Fund;
provided, however, that if the continuance of this Agreement is
submitted to the shareholders of the Fund for their approval and
such shareholders fail to approve such continuance of this
Agreement as provided herein, the Sub-Adviser may continue to
serve hereunder as to the Fund in a manner consistent with the
1940 Act and the rules and regulations thereunder; and (B) a
majority vote of the Trustees who are not "interested persons"
(as set forth in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission under the 1940 Act
or any interpretations of the staff of the Commission) of the
Fund, the Adviser or the Sub-Adviser, at a meeting called for the
purpose of voting on such approval.
(b) For the purposes of this Agreement, "Affirmative vote of a
majority of the outstanding voting securities of the Fund" shall have the
meaning set forth in the 1940 Act, subject, however, to such interpretations of
the staff of the Commission.
Termination of this Agreement pursuant to this Section shall be without
payment of any penalty.
In the event of termination of this Agreement for any reason, the
Sub-Adviser shall, immediately upon notice of termination or on such later date
as may be specified in such notice, cease all activity on behalf of the Fund and
with respect to any of its assets. In addition, the Sub-Adviser shall deliver
the Fund's Books and Records to the Adviser (it being agreed that the
Sub-Adviser may keep copies of the Fund's Books and Records) by such means and
in accordance
10
with such schedule as the Adviser shall reasonably direct and shall otherwise
reasonably cooperate in the transition of portfolio asset management to any
successor of the Sub-Adviser, including the Adviser, for a period up to
thirty-days (30) from such termination.
12. Liability of the Sub-Adviser. The Sub-Adviser shall not be liable
to the Advisor or Adviser Indemnitees (as defined below) for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by an Adviser Indemnitee 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 Fund and all affiliated persons
thereof (within the meaning of Section 2(a)(3) of the 0000 Xxx) 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) by
reason of or arising out of: (a) the Sub-Adviser being in violation of any
applicable federal or state law, rule or regulation or any investment policy or
restriction set forth in the Fund's Registration Statement or any written
guidelines or instruction provided in writing by the Board or the Adviser unless
acting at the direction of the Adviser or the Board, (b) the Fund's failure to
satisfy the diversification or source of income requirements of Subchapter M of
the Code by reason of any action or omission of the Sub-Adviser, unless acting
at the direction of the Adviser or the Board, (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 provided that the Sub-Adviser's obligation in this regard shall
be reduced to the extent it is caused by or is otherwise directly related to the
Fund's or the Adviser's own willful misfeasance, bad faith or gross negligence
or to the reckless disregard of its duties under the Agreement or (d) the Fund
being in violation of any applicable federal or state law, rule or regulation or
any investment policy or restriction set forth in the Fund's Registration
Statement or any written guidelines or instruction provided in writing by the
Board or the Adviser, by reason of any action or omission of the Sub-Adviser
unless acting at the direction of the Board or the Adviser.
13. Limitation of Liability. The parties to this Agreement acknowledge
and agree that no Trustee, officer or holder of shares of beneficial interests
of the Fund shall be liable for any litigation arising hereunder, whether direct
or indirect. The Fund's Certificate of Trust, as amended from time to time, is
on file in the Office of the Secretary of State of the State of Delaware. Such
Certificate of Trust and the Fund's Agreement and Declaration of Trust describe
in detail the respective responsibilities and limitations on liability of the
Trustees, officers, and holders of shares of beneficial interest.
14. Non-Exclusivity. The services provided by the Sub-Adviser are not
to be deemed exclusive except as otherwise mutually agreed upon in writing, from
time to time by the parties hereto, and the Sub-Adviser shall be free to render
similar services to others so long as such services do not impair the services
rendered to the Adviser or the Fund.
15. Name of the Fund. The parties agree that the Fund may use the name
"Cullen" and any logos or service marks that the Sub-Adviser may furnish to the
Fund (collectively, the
11
"Identifying Marks") only so long as (i) this Agreement remains in effect and
(ii) the Sub-Adviser has the right to use such Identifying Marks. Any use of the
Identifying Marks pursuant to this Section 9 shall be royalty free. Upon
termination of this Agreement, the Fund promptly shall discontinue the use of
the Identifying Marks. Upon notification from the Sub-Adviser to the Fund that
the Sub-Adviser ceases to have the right to use an Identifying Xxxx, the Fund
promptly shall discontinue the use of such Identifying Xxxx. The Fund
acknowledges that (i) it has no proprietary or exclusive rights in the
Identifying marks and (ii) the Sub-Adviser reserves to itself the right to grant
the nonexclusive right to use any Identifying Marks to other persons (including
other investment companies), subject to the Sub-Adviser's right with respect to
such Identifying Marks.
16. Jurisdiction. This Agreement shall be governed by and construed in
accordance with the substantive laws of The Commonwealth of Massachusetts and
the Sub-Adviser consents to the jurisdiction of courts, both state or federal,
in Boston, Massachusetts, with respect to any dispute under this Agreement.
17. Paragraph Headings. The headings of paragraphs contained in this
Agreement are provided for convenience only. They form no part of this Agreement
and shall not affect its construction.
18. Counterparts. 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.
19. Severability. If any provision of this Agreement is held invalid
or unenforceable for any reason, such provision will be fully severable, and
this Agreement will be enforced and construed as if such provision had never
comprised a part of this Agreement. To the extent required, any provision of
this Agreement may be modified by a court of competent jurisdiction to preserve
its validity
12
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed on their behalf by their duly authorized officers as of the date first
above written.
PIONEER INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
CULLEN CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
13
SCHEDULE A
The Adviser will pay to the Sub-Adviser as compensation for the Sub-Adviser's
services rendered, a fee, computed daily and payable at the end of each month at
an annual rate based on the average daily net assets of the Fund under the
following fee schedule:
Assets Rate
------ ----
First $1 Billion 0.35%
Greater than $1 Billion and less than or equal to $2 Billion 0.325%
Greater than $2 Billion and less than or equal to $3 Billion 0.30%
Greater than $3 Billion 0.275%
14
