Form Of Investment Sub-Advisory Agreement
Exhibit (d)(ii)
Form Of
AGREEMENT, dated as of [ ], by and between SSgA Funds Management, Inc., a Massachusetts
corporation (the “Adviser”), and [ ] (the “Sub-Adviser”).
WHEREAS, the Adviser is registered as an investment adviser under the Investment Advisers Act
of 1940, as amended (“Advisers Act”);
WHEREAS, the Adviser has entered into an Investment Advisory Agreement dated [ ] with [ ]
(“Trust”) an investment company registered under the Investment Company Act of 1940, as amended
(“Investment Company Act”);
WHEREAS, the Sub-Adviser is registered as an investment adviser under the Advisers Act;
WHEREAS, the Board of Trustees of the Trust (the “Board”) and the Adviser desire to retain the
Sub-Adviser to render investment advisory and other services to the portfolio(s) specified in
Appendix A hereto, each a series of the Trust (each a “Fund” and collectively, the “Funds”), in the
manner and on the terms hereinafter set forth;
WHEREAS, the Adviser has the authority under the Investment Advisory Agreement with the Trust
to select sub-advisers for each Fund of the Trust; and
WHEREAS, the Sub-Adviser is willing to furnish such services to the Adviser and each Fund;
NOW, THEREFORE, the Adviser and the Sub-Adviser agree as follows:
1. APPOINTMENT OF THE SUB-ADVISER
(a) The Adviser hereby appoints the Sub-Adviser to act as an investment adviser for each Fund,
subject to the supervision and oversight of the Adviser and the Board, and in accordance with the
terms and conditions of this Agreement. The Sub-Adviser accepts such appointment and agrees to
render the services herein set forth, for the compensation specified in Appendix A hereto.
(b) In the event that the Trust establishes one or more series in addition to the Funds with
respect to which the Adviser desires to retain the Sub-Adviser to render investment advisory
services hereunder, the Adviser shall so notify the Sub-Adviser in writing, indicating the advisory
fee to be payable to the Sub-Adviser with respect to each additional Fund. If the Sub-Adviser is
willing to render such services, it shall so notify the Adviser in writing, whereupon each such
additional Fund shall become a Fund hereunder. In such event, a writing signed by both the Adviser
and the Sub-Adviser shall be annexed hereto as a part hereof indicating that each such additional
Fund has become a Fund hereunder and reflecting the agreed-upon fee schedule for each such
additional Fund.
2. SERVICES TO BE RENDERED BY THE SUB-ADVISER
(a) Subject to the supervision of the Adviser and the Board and consistent with its fiduciary
duties to each Fund, the Sub-Adviser shall manage the investment operations and determine the
composition of the assets assigned to the Sub-Adviser by the Adviser (“portfolio”) of each Fund,
including the purchase, retention and disposition of the securities and other instruments held by
the Fund, in accordance with such Fund’s investment objective and policies as stated in the
then-current prospectus (“Prospectus”) and Statement of Additional Information (“SAI”) for such
Fund contained in the Trust’s Registration Statement on Form N-1A (the “Registration Statement”),
as such Prospectus and SAI are amended or supplemented from time to time. As part of the services
it will provide hereunder, the Sub-Adviser shall:
| (i) | provide supervision of each Fund’s investments, furnish a continuous investment program for the Funds, determine from time to time what investments or securities will be purchased, retained or sold by the Funds, and what portion of the assets will be invested or held uninvested as cash; | ||
| (ii) | maintain books and records with respect to the Trust’s securities transactions and keep the Board and the Adviser fully informed on an ongoing basis as agreed by the Adviser and the Sub-Adviser of all material facts concerning the investment and reinvestment of the assets in the Funds, the Sub-Adviser and its key investment personnel and operations providing services with respect to the Fund; make regular and periodic special written reports of such additional information concerning the same as may reasonably be requested from time to time by the Adviser or the Board, and the Sub-Adviser will attend meetings with the Adviser and/or the Board, as reasonably requested, to discuss the foregoing; | ||
| (iii) | in accordance with procedures and methods established by the Board, which may be amended from time to time, provide assistance in determining the fair value of all securities and other investments/assets in the Funds, as necessary, and use reasonable efforts to arrange for the provision of valuation information or a price(s) from a party(ies) independent of the Sub-Adviser for each security or other investment/asset in the Fund for which market prices are not readily available, it being understood that the Sub-Adviser shall not be responsible for determining the value of any such security; | ||
| (iv) | provide any and all material composite performance information, records and supporting documentation about accounts the Sub-Adviser manages, if appropriate, which are relevant to the Fund and that have investment objectives, policies, and strategies substantially similar to those employed by the Sub-Adviser in managing the Fund that may be reasonably necessary, under applicable laws, to allow the Fund or its agent to present information concerning the Sub-Adviser’s prior performance in the Trust’s Prospectus and SAI (as hereinafter defined) and any permissible reports and materials prepared by the Fund or its agent; |
| (v) | cooperate with and provide reasonable assistance to the Adviser, the Trust’s administrator, the Trust’s custodian and foreign custodians, the Trust’s transfer agent and pricing agents and all other agents and representatives of the Trust that the Adviser and Sub-Adviser shall agree, and the Adviser upon request from such person, shall keep all such persons fully informed as to such matters as they may reasonably deem necessary to the performance of their obligations to the Trust and the Adviser, provide prompt responses to reasonable requests made by such persons and maintain any appropriate interfaces with each so as to promote the efficient exchange of information; and | ||
| (vi) | initially determine and make such modifications to the identity and number of shares of the Deposit Securities and the Fund Securities required for a Fund Deposit or Redemption for each Fund as may be necessary as a result of rebalancing adjustments and corporate action events (and may give directions to the Trust’s Custodian with respect to such designation) (capitalized terms have the meaning set forth in the Funds’ prospectus). |
(b) In furnishing services hereunder, the Sub-Adviser shall be subject to, and shall perform
its responsibilities in accordance with the following: (i) the Trust’s Agreement and Declaration of
Trust, as the same may be hereafter modified and/or amended from time to time (“Trust
Declaration”); (ii) the By-Laws of the Trust, as the same may be hereafter modified and/or amended
from time to time (“By-Laws”); (iii) the Prospectus and SAI of the Trust filed with the Securities
and Exchange Commission (“SEC”) and delivered to the Sub-Adviser, as the same may be hereafter
modified, amended and/or supplemented; (iv) the Investment Company Act, the Advisers Act, the
applicable provisions of the Internal Revenue Code of 1986, as amended, and the Commodities
Exchange Act and the rules under each, and all other federal and state laws or regulations
applicable to the Trust and the Fund(s); (v) the terms and conditions of exemptive and no-action
relief granted to the Trust as amended from time to time; (vi) the Trust’s policies and procedures
adopted from time to time by the Board; and (vii) the written instructions of the Adviser. Prior
to the commencement of the Sub-Adviser’s services hereunder, the Adviser shall provide the
Sub-Adviser with current copies of the Trust Declaration, By-Laws, Prospectus and SAI and other
relevant policies and procedures adopted by the Board and by applicable exemptive and no action
relief. The Adviser undertakes to provide the Sub-Adviser with copies or other written notice of
any amendments, modifications or supplements to any such above-mentioned document.
(c) In furnishing services hereunder, the Sub-Adviser will not consult with any other
investment adviser to (i) the Fund, (ii) any other Fund of the Trust or (iii) any other investment
company under common control with the Trust concerning transactions of the Fund in securities or
other assets. (This shall not be deemed to prohibit the Sub-Adviser from consulting with any of
its affiliated persons concerning transactions in securities or other assets. This also shall not
be deemed to prohibit the Sub-Adviser from consulting with any of the other covered advisers
concerning compliance with paragraphs (a) and (b) of Rule 12d3-1 under the Investment Company Act.)
(d) The Sub-Adviser, at its expense, will furnish: (i) all necessary facilities and personnel,
including salaries, expenses and fees of any personnel required for the Sub-Adviser to
faithfully perform its duties under this Agreement; and (ii) administrative facilities,
including bookkeeping, and all equipment necessary for the efficient conduct of the Sub-Adviser’s
duties under this Agreement.
(e) The Sub-Adviser will select brokers and dealers to effect all portfolio transactions
subject to the conditions set forth herein which may include brokers and dealers affiliated with
the Sub-Adviser if and as permitted by applicable law. The Sub-Adviser will place all necessary
orders with brokers, dealers, or issuers, and will negotiate brokerage commissions, if applicable.
The Sub-Adviser is directed at all times to seek to execute transactions for each Fund (i) in
accordance with any written policies, practices or procedures that may be established by the Board
or the Adviser from time to time and which have been provided to the Sub-Adviser or (ii) as
described in the Trust’s Prospectus and SAI. In placing any orders for the purchase or sale of
investments for each Fund, in the name of the Fund or its nominees, the Sub-Adviser shall seek to
achieve for the Fund “best execution”, considering all of the circumstances, and shall maintain
records adequate to demonstrate compliance with this requirement. In no instance will portfolio
securities be purchased from or sold to the Sub-Adviser, or any affiliated person thereof, except
in accordance with the Investment Company Act, the Advisers Act and the rules under each, and all
other federal and state laws or regulations applicable to the Trust and the Fund.
(f) Subject to the appropriate policies and procedures approved by the Board, the Sub-Adviser
may, to the extent consistent with the safe harbor set forth in Section 28(e) of the Securities
Exchange Act of 1934, as amended (“Exchange Act”), cause each Fund to pay a broker or dealer that
provides brokerage or research services to the Adviser, the Sub-Adviser or the Fund an amount of
commission for effecting a portfolio transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if the Sub-Adviser determines,
in good faith, that such amount of commission is reasonable in relationship to the value of such
brokerage or research services provided viewed in terms of that particular transaction or the
Sub-Adviser’s overall responsibilities to the Fund or its other advisory clients. To the extent
consistent with Section 28(e) and the Board, the Sub-Adviser shall not be deemed to have acted
unlawfully or to have breached any duty created by this Agreement or otherwise solely by reason of
such action. Subject to seeking best execution, the Board or the Adviser may authorize, but not
require, the Sub-Adviser to effect transactions in portfolio securities through broker-dealers in a
manner that will help generate resources to pay the cost of certain expenses that the Trust is
required to pay or for which the Trust is required to arrange payment.
(g) On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the
best interest of the Fund(s) as well as other clients of the Sub-Adviser and its affiliates, the
Sub-Adviser to the extent permitted by applicable laws and regulations, may, but shall be under no
obligation to, aggregate the securities to be purchased or sold to attempt to obtain a more
favorable price or lower brokerage commissions or other expenses and efficient execution.
Allocation of the securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner which the Sub-Adviser considers to be
the most equitable and consistent with its fiduciary obligations to each Fund and to its other
clients over time. The Adviser agrees that the Sub-Adviser and its affiliates may give advice and
take action in the performance of their duties with respect to any of their other clients that may
differ from advice given, or the timing or nature of actions taken, with respect to the Fund. The
Adviser also acknowledges that the Sub-Adviser and its affiliates are fiduciaries to other
entities, some of which have the same or similar investment objectives (and will hold the same or
similar investments) as the Fund, and that the Sub-Adviser will carryout its duties hereunder
together with its duties under such relationships. Nothing in this Agreement shall be deemed to
confer upon the Sub-Adviser any obligation to purchase or to sell or to recommend for purchase or
sale for the Fund any investment that the Sub-Adviser, its affiliates, officers or employees may
purchase or sell for its or their own account or for the account of any client, if in the sole and
absolute discretion of the Sub-Adviser it is for any reason impractical or undesirable to take such
action or make such recommendation for the Fund.
(h) The Sub-Adviser will maintain all accounts, books and records with respect to each Fund as
are required of an investment adviser of a registered investment company pursuant to the Investment
Company Act and Advisers Act and the rules thereunder and shall file with the SEC all forms
pursuant to Section 13 of the Exchange Act, with respect to its duties as are set forth herein.
(i) The Sub-Adviser will, unless and until otherwise directed by the Adviser or the Board and
consistent with seeking the best interests of each Fund, exercise (or not exercise in its
discretion) all rights of security holders with respect to securities held by each Fund, including,
but not limited to: voting proxies, converting, tendering, exchanging or redeeming securities;
acting as a claimant in class action litigation (including litigation with respect to securities
previously held); corporate actions; and exercising rights in the context of a bankruptcy or other
reorganization. Unless the Adviser or the Board gives written instructions to the contrary, the
Sub-Adviser shall vote all proxies solicited by or with respect to the issuers of securities in
which assets of the Fund may be invested in accordance with the Sub-Adviser’s proxy voting
guidelines, a copy of which has been provided to the Adviser.
3. COMPENSATION OF THE ADVISER
The Adviser shall pay the Sub-Adviser an advisory fee with respect to each Fund as specified
in Appendix A to this Agreement.
4. LIABILITY AND INDEMNIFICATION
(a) Except as may otherwise be provided by the Investment Company Act or any other federal
securities law, neither the Sub-Adviser nor any of its officers, members or employees (its
“Affiliates”) shall be liable for any losses, claims, damages, liabilities or litigation (including
legal and other expenses) incurred or suffered by the Adviser or the Trust as a result of any error
of judgment or mistake of law by the Sub-Adviser or its Affiliates with respect to each 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 Trust, the Adviser, all affiliated persons thereof (within the meaning of Section
2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of
the Securities Act of 1933, as amended (“1933 Act”)) (collectively, “Adviser Indemnitees”) against
any and all losses, claims, damages, liabilities or litigation (including reasonable legal and
other expenses) to which any of the Adviser Indemnitees may become subject under the 1933 Act, the
Investment Company Act, the Advisers Act, or under
any other statute, or common law or otherwise arising out of or based on (i) any willful
misconduct, bad faith, reckless disregard or gross negligence of the Sub-Adviser in the performance
of any of its duties or obligations hereunder or (ii) any untrue statement of a material fact
relating to the Sub-Adviser contained in the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the Fund or the omission to
state therein a material fact known to the Sub-Adviser which was required to be stated therein or
necessary to make the statements therein not misleading, if such statement or omission was made in
reliance upon information furnished to the Adviser or the Trust by the Sub-Adviser Indemnitees (as
defined below) expressly for use therein and provided that the Adviser gave the Sub-Adviser a
reasonable advance opportunity to review and comment on all such Fund materials that relate to the
Sub-Adviser.
(b) Except as may otherwise be provided by the Investment Company Act or any other federal
securities law, the Adviser and the Trust shall not be liable for any losses, claims, damages,
liabilities or litigation (including legal and other expenses) incurred or suffered by the
Sub-Adviser as a result of any error of judgment or mistake of law by the Adviser with respect to
each 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 Adviser for, and the Adviser shall indemnify and
hold harmless the Sub-Adviser, all affiliated persons thereof (within the meaning of Section
2(a)(3) of the Investment Company Act) and all controlling persons (as described in Section 15 of
the 1933 Act) (collectively, “Sub-Adviser Indemnitees”) against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other expenses) to which any of
the Sub-Adviser Indemnitees may become subject under the 1933 Act, the Investment Company Act, the
Advisers Act, or under any other statute, at common law or otherwise arising out of or based on (i)
any willful misconduct, bad faith, reckless disregard or gross negligence of the Adviser in the
performance of any of its duties or obligations hereunder or (ii) any untrue statement of a
material fact contained in the Prospectus and SAI, proxy materials, reports, advertisements, sales
literature, or other materials pertaining to the Fund(s) or the omission to state therein a
material fact known to the Adviser that was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in reliance upon
information furnished to the Adviser or the Trust by the Sub-Adviser Indemnitees expressly for use
therein and provided that the Adviser gave the Sub-Adviser a reasonable advance opportunity to
review and comment on all such Fund materials that relate to the Sub-Adviser.
5. REPRESENTATIONS OF THE ADVISER
| The Adviser represents, warrants and agrees that: |
(a) The Adviser has been duly authorized by the Board to delegate to the Sub-Adviser the
provision of investment services to each Fund as contemplated hereby.
(b) The Adviser (i) is registered as an investment adviser under the Advisers Act and will
continue to be so registered for so long as this Agreement remains in effect; (ii) is not
prohibited by the Investment Company Act, the Advisers Act or other law, regulation or order from
performing the services contemplated by this Agreement; (iii) to the best of its knowledge, has met
and will seek to continue to meet for so long as this Agreement is in effect, any other
applicable federal or state requirements, or the applicable requirements of any regulatory or
industry self-regulatory agency necessary to be met in order to perform the services contemplated
by this Agreement; and (iv) will promptly notify the Sub-Adviser of the occurrence of any event
that would disqualify the Adviser from serving as investment manager of an investment company
pursuant to Section 9(a) of the Investment Company Act or otherwise. The Adviser will also
promptly notify the Sub-Adviser if it 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, regulatory agency, involving the affairs of the Fund(s), provided, however, that routine
regulatory examinations shall not be required to be reported by this provision.
6. REPRESENTATIONS OF THE SUB-ADVISER
The Sub-Adviser represents, warrants and agrees as follows:
(a) The Sub-Adviser (i) is registered as an investment adviser under the Advisers Act and will
continue to be so registered (or shall qualify for an exemption from registration) for so long as
this Agreement remains in effect; (ii) is not prohibited by the Investment Company Act, the
Advisers Act or other law, regulation or order from performing the services contemplated by this
Agreement; (iii) to the best of its knowledge, has met and will seek to continue to meet, for so
long as this Agreement remains in effect, any other applicable federal or state requirements, or
the applicable requirements of any regulatory or industry self-regulatory agency necessary to be
met in order to perform the services contemplated by this Agreement; (iv) has the authority to
enter into and perform the services contemplated by this Agreement; and (v) will promptly notify
the Adviser of the occurrence of any event that would substantially impair the Sub-Adviser’s
ability to fulfill its commitment under this Agreement or disqualify the Sub-Adviser from serving
as an investment adviser of an investment company pursuant to Section 9(a) of the Investment
Company Act or otherwise. The Sub-Adviser will also promptly notify each Fund and the Adviser if
it 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(s), provided, however, that routine regulatory examinations shall not be
required to be reported by this provision.
(b) The Sub-Adviser has adopted a written code of ethics complying with the requirements of
Rule 17j-1 under the Investment Company Act and Rule 204A-1 under the Advisers Act and will provide
the Adviser and the Board with a copy of such code of ethics, together with evidence of its
adoption. Within forty-five days of the end of the last calendar quarter of each year that this
Agreement is in effect, and as otherwise requested, the president, Chief Operating Officer,
compliance officer or a vice-president of the Sub-Adviser shall certify to the Adviser that the
Sub-Adviser has complied with the requirements of Rule 17j-1 and Rule 204A-1 during the previous
year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such
a material violation has occurred, that appropriate action was taken in response to such violation.
Upon the written request of the Adviser, the Sub-Adviser shall permit, upon reasonable advance
notice and during regular business hours, the Adviser, its employees or its agents to examine the
reports required to be made to the Sub-Adviser by Rule 17j-1(c)(1) and Rule 204A-1(b) and, at the
site of the Sub-Adviser’s main offices, all other
records relevant to the Sub-Adviser’s code of ethics but only to the extent such reports
and/or records relate to the provision of services hereunder.
(c) The Sub-Adviser has adopted and implemented and will maintain (a) in accordance with Rule
206(4)-7 under the Advisers Act, policies and procedures reasonably designed to prevent violation
by the Sub-Adviser and its supervised persons (as such term is defined by the Advisers Act) of the
Advisers Act and the rules thereunder; and (b) to the extent that the Sub-Adviser’s activities or
services could affect the Fund(s), policies and procedures reasonably designed to prevent violation
of the federal securities laws (as such term is defined in Rule 38a-1 under the Investment Company
Act) by the Fund(s) and the Sub-Adviser.
(d) The Sub-Adviser has provided the Trust and the Adviser with a copy of its Form ADV, which
as of the date of this Agreement is its Form ADV as most recently filed with the SEC and promptly
will furnish a copy of all material amendments to the Trust and the Adviser at least annually.
Such amendments shall reflect those material changes in the Sub-Adviser’s organizational structure,
professional staff or other significant developments affecting the Sub-Adviser’s services
hereunder, which are required by the Advisers Act.
(e) The Sub-Adviser will notify the Trust and the Adviser of any assignment of this Agreement
or change of control of the Sub-Adviser, as applicable, and any changes in the key personnel who
are either the portfolio manager(s) of the Fund(s) or senior management of the Sub-Adviser with
management responsibilities relating to the services hereunder, in each case prior to or promptly
after, such change. The Sub-Adviser agrees to bear all reasonable expenses of the Trust, if any,
arising out of an assignment or change in control of the Sub-Adviser.
(f) The Sub-Adviser will notify the Adviser immediately upon detection of (a) any material
failure to manage the Fund(s) in accordance with the Fund(s)’ stated investment objectives and
policies or any applicable law; or (b) any material breach of any of the Fund(s)’ or the
Sub-Adviser’s policies, guidelines or procedures related to the Fund(s).
(g) The Sub-Adviser agrees to maintain an appropriate level of errors and omissions or
professional liability insurance coverage.
(h) The Sub-Adviser agrees that neither it, nor any of its affiliates, will knowingly in any
way refer directly or indirectly to its relationship with the Trust, the Fund(s), the Adviser or
any of their respective affiliates in offering, marketing or other promotional materials without
the express written consent of the Adviser, except as required by rule, regulation or upon the
request of a governmental authority. However, the Sub-Adviser may use the performance of the Fund
in its composite performance. Notwithstanding the foregoing, nothing in this Agreement shall be
interpreted to prevent the Sub-Adviser from referring to the names of the Fund(s) managed by the
Sub-Adviser.
7. NON-EXCLUSIVITY
(a) The services of the Sub-Adviser to the Adviser, the Fund(s) and the Trust are not to be
deemed to be exclusive, and the Sub-Adviser shall be free to render investment advisory or other
services to others and to engage in other activities, provided the Sub-Adviser furnishes in
its Form ADV adequate disclosure of possible conflicts of interest and implements procedures
designed to mitigate or eliminate such conflicts. It is understood and agreed that the directors,
officers, and employees of the Sub-Adviser are not prohibited from engaging in any other business
activity or from rendering services to any other person, or from serving as partners, officers,
directors, trustees, or employees of any other firm or corporation and that the directors, officer
and employees of the Sub-Adviser shall devote as much of their time to the activities of the Funds
as they deem necessary and appropriate;
(b) circumstances may arise under which the Sub-adviser determines there is a limited supply
or demand for a particular security. Under such circumstances, the Sub-adviser shall allocate such
security to the Fund and other clients of the Sub-Adviser in accordance with its then-current
aggregation and allocation policy and in a fair and equitable manner consistent with its fiduciary
duties owed to the Funds and such other client of the Sub-Adviser; and
(c) as a regular part of the restructuring and advisory practice of an affiliate of the the
Sub-Adviser (the “Restructuring Affiliate”), the Restructuring Affiliate advises debtors and
creditors in connection with out-of-court debt restructurings and workouts and with bankruptcy
proceedings. The Restructuring Affiliate also serves as advisor to official creditor committees
established pursuant to such proceedings. In situations in which an issuer of an investment (or a
creditor or group of creditors of such issuer) is a client or potential client of the restructuring
and reorganization advisory practice (any such investment, a “Conflicted Investment”), the
Sub-Adviser sells the Conflicted Investment to the extent deemed advisable by the Restructuring
Affiliate, in consultation with the Sub-Adviser’s compliance officer, in order to avoid actual or
perceived conflicts of interest with the restructuring and reorganization advisory practice,
whether or not such disposition would otherwise be in the best interests of the Fund. Further,
there may also be instances in which the work of the restructuring and reorganization advisory
practice prevents the Adviser from purchasing an investment. Notwithstanding anything to the
contrary contained elsewhere herein, due to certain confidentiality obligations which the
Restructuring Affiliate may be subject to, the Adviser shall not be obligated to inform the Fund at
the time of any sale of Conflicted Investments.
8. SUPPLEMENTAL ARRANGEMENTS
The Sub-Adviser may from time to time employ or associate itself with any person it believes
to be particularly suited to assist it in providing the services to be performed by the Sub-Adviser
hereunder, provided that no such person shall perform any services with respect to the Fund(s) that
would constitute an assignment or require a written advisory agreement pursuant to the Investment
Company Act. Any compensation payable to such persons shall be the sole responsibility of the
Sub-Adviser, and neither the Adviser nor the Trust shall have any obligations with respect thereto
or otherwise arising under the Agreement.
9. REGULATION
Each party agrees to provide reasonable cooperation to the other party in furtherance of this
Agreement, including without limitation providing relevant information, reports, or other
materials pursuant to a request or requirement of regulatory and administrative bodies having
jurisdiction over the party seeking such cooperation.
10. RECORDS
The records relating to the services provided under this Agreement shall be the property of
the Trust and shall be under its control; however, the Trust shall furnish to the Sub-Adviser such
records and permit it to retain such records (either in original or in duplicate form) as it shall
reasonably require in order to carry out its business. In the event of the termination of this
Agreement, such other records shall promptly be returned to the Trust by the Sub-Adviser free from
any claim or retention of rights therein, provided that the Sub-Adviser may retain any such records
that are required by law or regulation or reasonably required in order to carryout its business.
The Sub-Adviser shall keep confidential any information obtained in connection with its duties
hereunder and is either identified as confidential or by its nature or means of receipt would be
considered confidential and disclose such information only if the Trust has authorized such
disclosure or if such disclosure is expressly required or requested by applicable federal or state
regulatory authorities, or otherwise required by law.
11. DURATION OF AGREEMENT
This Agreement shall become effective upon the date first above written, provided that this
Agreement shall not take effect unless it has first been approved: (i) by a vote of a majority of
those trustees of the Trust who are not “interested persons” (as defined in the Investment Company
Act) of any party to this Agreement (“Independent Trustees”), cast in person at a meeting called
for the purpose of voting on such approval, and (ii) by vote of a majority of the Fund’s
outstanding securities. This Agreement shall continue in effect for a period more than two years
from the date of its execution only so long as such continuance is specifically approved at least
annually by the Board provided that in such event such continuance shall also be approved by the
vote of a majority of the Independent Trustees cast in person at a meeting called for the purpose
of voting on such approval.
12. ASSIGNMENT AND TERMINATION OF AGREEMENT
This Agreement may be terminated at any time, without the payment of any penalty by the
Adviser or the Sub-Adviser on sixty (60) days’ written notice to the other party. This Agreement
will automatically terminate, without the payment of any penalty, (i) in the event of its
assignment (as defined in the Investment Company Act), or (ii) in the event the Investment
Management Agreement between the Adviser and the Trust is assigned (as defined in the Investment
Company Act) or terminates for any other reason. This Agreement will also terminate upon written
notice to the other party that the other party is in material breach of this Agreement, unless the
other party in material breach of this Agreement cures such breach to the reasonable satisfaction
of the party alleging the breach within thirty (30) days after written notice.
Notwithstanding the foregoing, no assignment shall be deemed to result from any changes in the
directors, officers or employees of such Sub-Adviser except as may be provided to the contrary in
the Investment Company Act or the rules or regulations thereunder.
13. AMENDMENTS TO THE AGREEMENT
Except to the extent permitted by the Investment Company Act or the rules or regulations
thereunder or pursuant to no-action relief granted by the SEC Staff or exemptive relief granted by
the SEC, this Agreement may be amended by the parties only if such amendment, if material, is
specifically approved by the vote of a majority of the outstanding voting securities of a Fund and
by the vote of a majority of the Independent Trustees cast in person at a meeting called for the
purpose of voting on such approval. The required shareholder approval shall be effective with
respect to the Fund if a majority of the outstanding voting securities of the Fund vote to approve
the amendment, notwithstanding that the amendment may not have been approved by a majority of the
outstanding voting securities of any other Fund affected by the amendment or all the Funds of the
Trust.
Any change, waiver, discharge or termination of a provision of this Agreement, whether or not
such change is deemed to be material, may be made only by an instrument in writing signed by both
the Adviser and the Sub-Adviser.
14. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the parties with respect to
each Fund.
This Agreement may be executed in two or more counterparts, each of which when so executed
shall be deemed to be an original, but such counterparts shall together constitute one and the same
document.
15. HEADINGS
The headings in the sections of this Agreement are inserted for convenience of reference only
and shall not constitute a part hereof.
16. NOTICES
All notices required to be given pursuant to this Agreement shall be delivered or mailed to
the address listed below of each applicable party in person or by registered or certified mail or a
private mail or delivery service providing the sender with notice of receipt or such other address
as specified in a notice duly given to the other parties. Notice shall be deemed given on the date
delivered or mailed in accordance with this paragraph.
| For: | [ ] Xxxx Xxxxxx, Secretary State Street Bank and Trust Company Four Xxxxxx Xxxxx, XXX0000 Xxxxxx, XX 00000 |
| For: | SSgA Funds Management, Inc. Attn: Chief Compliance Officer State Street Financial Center |
| 0 Xxxxxxx Xxxxxx Xxxxxx, XX 00000 |
||
| For: | [ ] |
17. SEVERABILITY
Should any portion of this Agreement for any reason be held to be void in law or in equity,
the Agreement shall be construed, insofar as is possible, as if such portion had never been
contained herein.
18. TRUST AND SHAREHOLDER LIABILITY
The Adviser and the Sub-Adviser are hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Trust Declaration and agree that obligations assumed by
the Trust pursuant to this Agreement shall be limited in all cases to the Trust and its assets, and
if the liability relates to one or more series, the obligations hereunder shall be limited to the
respective assets of the Fund. The Adviser and the Sub-Adviser further agree that they shall not
seek satisfaction of any such obligation from the shareholders or any individual shareholder of the
Fund(s), nor from the Trustees or any individual Trustee of the Trust.
19. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in accordance with the
laws of the Commonwealth of Massachusetts. To the extent that the laws of the Commonwealth of
Massachusetts, or any of the provisions in this Agreement, conflict with applicable provisions of
the Investment Company Act, the latter shall control.
20. INTERPRETATION
Any question of interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the Investment Company Act shall be resolved by
reference to such term or provision of the Investment Company Act and to interpretations thereof,
if any, by the United States courts or, in the absence of any controlling decision of any such
court, by rules, regulations or orders of the SEC validly issued pursuant to the Investment Company
Act. Specifically, the terms “vote of a majority of the outstanding voting securities,”
“interested persons,” “assignment,” and “affiliated persons,” as used herein shall have the
meanings assigned to them by Section 2(a) of the Investment Company Act. In addition, where the
effect of a requirement of the Investment Company Act reflected in any provision of this Agreement
is relaxed by a rule, regulation or order of the SEC, whether of special or of general application,
such provision shall be deemed to incorporate the effect of such rule, regulation or order.
21. RIGHTS OF FUND
The Trust is hereby expressly made a third-party beneficiary of this Agreement and shall have
the full right to enforce any and all provisions of this Agreement for its benefit and to proceed
directly against the Sub-Adviser for any breach of any provision of this Agreement or
for any loss, damage, claim, liability arising due to any act or omission on the part of the
Sub-Adviser to the same extent as if the Fund itself were a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly
authorized officers as of the date first mentioned above.
[ ] |
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By: |
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| Name: [ ] | ||
| Title: [ ] | ||
| SSgA FUNDS MANAGEMENT, INC. | ||
By: |
||
| Name: [ ] | ||
| Title: [ ] | ||
APPENDIX A
Sub-Adviser Compensation
The Adviser shall pay the Sub-Adviser, upon receipt of an invoice, a monthly fee for its
services for the Funds listed below in the amount of [ ]% of the advisory fee paid by the Fund to
the Adviser set forth below after deducting payments to fund service providers and fund expenses.
