INVESTMENT SUBADVISORY AGREEMENT
INVESTMENT SUBADVISORY AGREEMENT, dated as of July 29, 2005 ("Agreement")
by and between Diversified Investment Advisors, Inc., a Delaware corporation
("Diversified") and Western Asset Management Company Limited ("Subadvisor").
WITNESSETH:
WHEREAS, Diversified has been organized to operate as an investment advisor
registered under the Investment Advisers Act of 1940 and has been retained to
provide investment advisory services to the Diversified Investors Balanced
Portfolio ("Portfolio"), a series of Diversified Investors Portfolios, a
diversified open-end management investment company registered under the
Investment Company Act of 1940 ("1940 Act");
WHEREAS, Diversified desires to retain the Subadvisor to furnish it with
portfolio investment advisory services in connection with Diversified's
investment advisory activities on behalf of the Portfolio, and the Subadvisor is
willing to furnish such services to Diversified;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Duties of the Subadvisor. In accordance with and subject to the
Investment Advisory Agreement between the Portfolio and Diversified, attached
hereto as Schedule A (the "Advisory Agreement"), Diversified hereby appoints the
Subadvisor to perform the portfolio investment advisory services described
herein for the investment and reinvestment of such amount of the Portfolio's
assets as is determined from time to time by the Portfolio's Board of Trustees
and communicated to the Subadvisor in writing ("Assets"), subject to the control
and direction of Diversified and the Diversified Investors Portfolios' Board of
Trustees, for the period and on the terms hereinafter set forth. Subadvisor's
responsibility for providing investment advice to the Portfolio is limited to
that discrete portion of the Portfolio represented by the Assets and Subadviser
is prohibited from directly or indirectly consulting with any other Subadviser
for a portion of the Portfolio's assets concerning Portfolio transactions in
securities or other assets.
The Subadvisor shall provide Diversified with such investment advice and
supervision as the latter may from time to time consider necessary for the
proper supervision of the Assets. The Subadvisor shall furnish continuously an
investment program and shall determine from time to time what securities shall
be purchased, sold or exchanged and what portion of the Assets of the Portfolio
shall be held uninvested, subject always to the provisions of the 1940 Act and
to the Portfolio's then-current Registration Statement on Form N-1A.
In particular, the Subadvisor shall, without limiting the foregoing: (i)
continuously review, supervise and implement the investment program for the
Assets; (ii) monitor regularly the relevant securities for the Assets to
determine if adjustments are warranted and, if so, to make such adjustments;
(iii) determine, in the Subadvisor's discretion, the securities to be purchased
or sold or exchanged in order to keep the Assets in balance with the designated
investment strategy; (iv) determine, in the Subadvisor's discretion, whether to
exercise warrants or other rights with respect to the Assets; (v) determine, in
the Subadvisor's discretion, whether the merit of an investment has been
substantially impaired by extraordinary events or financial conditions, thereby
warranting the removal of such securities from the Assets; (vi) as promptly as
practicable after the end of each calendar month, furnish a report showing: (a)
all transactions during such month, (b) all Assets on
the last day of such month, rates of return, and (c) such other information
relating to the Assets as Diversified may reasonably request; (vii) meet at
least four times per year with Diversified and with such other persons as may be
designated on reasonable notice and at reasonable locations, at the request of
Diversified, to discuss general economic conditions, performance, investment
strategy, and other matters relating to the Assets; (viii) provide the
Portfolio, as reasonably requested by Diversified, with records concerning the
Subadvisor's activities which the Portfolio is required by law to maintain with
respect to the Assets; and (ix) render regular reports to the Portfolio's
officers and Directors concerning the Subadvisor's discharge of the foregoing
responsibilities.
Upon written request, the Subadvisor shall also make recommendations to
Diversified as to the manner in which voting rights, rights to consent to
corporate actions and any other rights pertaining to the securities comprising
the Assets shall be exercised. Diversified, however, will assume the
responsibility for the actual voting of any voting rights.
Futures and options contracts will be entered into for hedging purposes
and/or as a part of Subadvisor's overall portfolio strategy and will be
incidental to its securities trading activities for the Portfolio. Investment in
original futures margin and options premiums will at all times be in compliance
with applicable requirements of the Commodities Futures Trading Commission.
Subadvisor is hereby authorized to place orders for the execution of
securities transactions for the Portfolio as may be recommended to and accepted
by or on behalf of Diversified (either in writing or by telephone) with or
through such brokers, dealers or issuers as Subadvisor may select.
Subadvisor may execute on behalf of Diversified certain agreements,
instruments and documents in connection with the services performed by it under
this Agreement. These may include, without limitation, brokerage agreements,
clearing agreements, account documentation, futures and options agreements, swap
agreements other investment related agreements and any other agreements,
documents or instruments the Subadvisor believes are appropriate or desirable in
performing its duties under this Agreement.
Should the Board of Trustees at any time establish an investment policy
with respect to the Assets and notify the Subadvisor thereof in writing, the
Subadvisor shall be bound by such determination for the period, if any,
specified in such notice or until similarly notified that such policy has been
revoked.
The Subadvisor shall take, on behalf of the Assets, all actions which it
deems necessary to implement the investment policies determined as provided
above with respect to the Assets, and in particular to place all orders for the
purchase or sale of securities for the Portfolio's account with brokers or
dealers selected by it, and to that end the Subadvisor is authorized as an agent
of the Portfolio to give instructions to the custodian of the Portfolio as to
deliveries of securities and payments of cash for the account of the Portfolio.
Subject to the primary objective of obtaining the best available prices and
execution, the Subadvisor may place orders for the purchase and sale of
portfolio securities with such broker/dealers who provide research and brokerage
services to the Portfolio within the meaning of Section 28(e) of the Securities
Exchange Act of 1934, to the Subadvisor, or to any other fund or account for
which the Subadvisor provides investment advisory services and may place such
orders with broker/dealers who sell shares of the Portfolio or who sell shares
of any other fund for which the Subadvisor provides investment advisory
services. Broker/dealers who sell shares of the funds of which the Subadvisor is
investment advisor shall only
-2-
receive orders for the purchase or sale of portfolio securities to the extent
that the placing of such orders is in compliance with the Rules of the
Securities and Exchange Commission and the NASD.
On occasions when Subadvisor deems the purchase or sale of a security to be
in the best interest of the Portfolio as well as other clients of Subadvisor,
Subadvisor, to the extent permitted by applicable laws and regulations, may, but
shall be under no obligation to, aggregate the securities 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
so purchased or sold, as well as the expenses incurred in the transaction, will
be made by Subadvisor in the manner Subadvisor considers to be the most
equitable and consistent with its fiduciary obligations to the Portfolio and to
such other clients.
Notwithstanding the provisions of the previous paragraph and subject to
such policies and procedures as may be adopted by the Board of Trustees and
officers of the Portfolio, the Subadvisor may pay a member of an exchange,
broker or dealer an amount of commission for effecting a securities transaction
in excess of the amount of commission another member of an exchange, broker or
dealer would have charged for effecting that transaction, in such instances
where the Subadvisor has determined in good faith that such amount of commission
was reasonable in relation to the value of the brokerage and research services
provided by such member, broker or dealer, viewed in terms of either that
particular transaction or the Subadvisor's overall responsibilities with respect
to the Portfolio and to other funds and clients for which the Subadvisor
exercises investment discretion.
2. Allocation of Charges and Expenses. The Subadvisor shall furnish at its
own expense all necessary services, facilities and personnel in connection with
its responsibilities under Section 1 above. It is understood that the Portfolio
will pay all of its own expenses and liabilities including, without limitation,
compensation and out-of-pocket expenses of Trustees not affiliated with the
Subadvisor or Diversified; governmental fees; interest charges; taxes;
membership dues; fees and expenses of independent auditors, of legal counsel and
of any transfer agent, administrator, distributor, shareholder servicing agents,
registrar or dividend disbursing agent of the Portfolio; expenses of
distributing and redeeming shares and servicing shareholder accounts; expenses
of preparing, printing and mailing prospectuses, shareholder reports, notices,
proxy statements and reports to governmental officers and commissions and to
shareholders of the Portfolio; expenses connected with the execution, recording
and settlement of Portfolio security transactions; insurance premiums; fees and
expenses of the custodian for all services to the Portfolio, including
safekeeping of funds and securities and maintaining required books and accounts;
expenses of calculating the net asset value of shares of the Portfolio; expenses
of shareholder meetings; expenses of litigation and other extraordinary or
non-recurring events and expenses relating to the issuance, registration and
qualification of shares of the Portfolio.
3. Compensation of the Subadvisor. For the services to be rendered,
Diversified shall pay to the Subadvisor an investment advisory fee computed in
accordance with the terms of Schedule B herewith attached. If the Subadvisor
serves for less than the whole of any period specified, its compensation shall
be prorated.
4. Covenants and Representations of the Subadvisor. The Subadvisor agrees
that it will not deal with itself, or with the Trustees of the Portfolio or with
Diversified, or the Portfolio's principal underwriter or distributor as
principals in making purchases or sales of securities or other property for the
account of the Portfolio, except as permitted by the 1940 Act, and will
materially comply with all other provisions of the Declaration of Trust and any
current Registration Statement on Form N-1A of the Portfolio relative to the
Subadvisor, Advisor and its Trustees and officers.
-3-
5. Representations of Diversified. Diversified hereby acknowledges receipt
of the Subadvisor's Form ADV, Part II (which also includes its privacy policy)
at least 48 hours prior to the effective date of this Agreement pursuant to Rule
204-3 under the Investment Advisers Act of 1940. The Subadvisor annually shall
deliver, or offer in writing to deliver, upon written request of Diversified and
without charge, Form ADV, Part II. Diversified represents and confirms that the
employment of Subadvisor is authorized by due corporate or other authorization
and that the terms hereof do not violate any obligation by which Diversified is
bound, whether arising by contract, operation of law or otherwise, and, if
Diversified is a corporation or trust, that (a) this Agreement has been duly
authorized by appropriate action and when executed and delivered will be binding
upon Diversified in accordance with its terms, and (b) Diversified will deliver
to Subadvisor such evidence of such authority as Subadvisor may reasonably
require, whether by way of a certified resolution or otherwise.
6. Limits on Duties. The Subadvisor shall be responsible only for managing
the Assets in good faith and in accordance with the investment objectives,
fundamental policies and restrictions, and shall have no responsibility
whatsoever for, and shall incur no liability on account of (i) diversification,
selection or establishment of such investment objectives, fundamental policies
and restrictions (ii) advice on, or management of, any other assets for
Diversified or the Portfolio, (iii) filing of any tax or information returns or
forms, withholding or paying any taxes, or seeking any exemption or refund, (iv)
registration of the Portfolio with any government or agency, or (v)
administration of the plans and trusts investing through the Portfolio, or (vi)
overall Portfolio compliance with the requirements of the 1940 Act, which
requirements are outside of the Subadvisor's control, and Subchapter M of the
Internal Revenue Code of 1986, as amended. Diversified agrees that requirements
imposed by the 1940 Act, Subchapter M, or any other applicable laws, that are
outside Subadvisor's control include compliance with any percentage limitations
applicable to the Portfolio's assets that would require knowledge of the
Portfolio's holdings other than the Assets subject to this Agreement. (vii) The
Subadvisor shall not be responsible for any loss incurred by reason of any act
or omission of any custodian, including but not limited to any loss arising
from, on account of or in connection with any custodian failing to timely notify
the Subadvisor of any corporate action or similar transaction. (viii) The
Subadvisor shall not be responsible for any loss incurred by reason of any act
or omission of any broker or dealer; provided, however, that the Subadvisor will
make reasonable efforts to require that brokers and dealers selected by the
Subadvisor perform their obligations with respect to Diversified. Subadvisor
shall be indemnified and held harmless by Diversified for any loss in carrying
out the terms and provisions of this Agreement, including reasonable attorney's
fees, indemnification to the Portfolio, or any shareholder thereof and, brokers
and commission merchants, fines, taxes, penalties and interest. Subadvisor,
however, shall be liable for any liability, damages, or expenses of Diversified
arising out of the willful malfeasance, bad faith, gross negligence, or
violation of applicable law or reckless disregard of the duties owed pursuant to
this Agreement by any of its employees in providing management under this
Agreement; and, in such cases, the indemnification by Diversified, referred to
above, shall be inapplicable, unless Diversified or any of its employees or
agents was acting in a manner akin to willful malfeasance, bad faith, gross
negligence, or violation of applicable law or reckless disregard of the duties
owed pursuant to this Agreement.
The Subadvisor may apply to Diversified at any time for instructions and
may consult counsel for Diversified or its own counsel with respect to any
matter arising in connection with the duties of the Subadvisor. Also, the
Subadvisor shall be protected in acting upon advice of Diversified and/or
Diversified's counsel and upon any document which Subadvisor reasonably believes
to be genuine and to have been signed by the proper person or persons.
-4-
7. Disclosure/Compliance Obligations. Subadviser agrees that, during the
term of this Agreement, Subadvisor shall disclose to Diversified the identity of
any other commingled investment fund product managed by the Subadviser in a
substantially similar manner to the strategy employed under this Agreement if,
to the best knowledge of the Subadviser, such commingled investment funds is
sold in retirement plan marketplaces in competition with the Portfolio. In
addition, Subadviser agrees to provide Diversified with all written compliance
policies and procedures of the Subadviser (and all updates thereto) and
otherwise comply with all reasonable requests by Diversified to ensure
compliance with all applicable securities and other laws.
8. Duration, Termination and Amendments of this Agreement. This Agreement
shall become effective as of the day and year first above written and shall
govern the relations between the parties hereto thereafter, and, unless
terminated earlier as provided below, shall remain in force for two years, on
which date it will terminate unless its continuance thereafter is specifically
approved at least annually (a) by the vote of a majority of the Trustees of the
Portfolio who are not "interested persons" with respect to this Agreement or of
the Subadvisor or Diversified at an in person meeting specifically called for
the purpose of voting on such approval, and (b) by the Board of Trustees of the
Portfolio or by vote of a majority of the outstanding voting securities of the
Portfolio.
This Agreement may be terminated at any time without the payment of any
penalty by the Trustees, or by the vote of a majority of the outstanding voting
securities of the Portfolio, or by Diversified. The Subadvisor may terminate the
Agreement only upon giving 30 days' advance written notice to Diversified. This
Agreement shall automatically terminate in the event of its assignment.
This Agreement may be amended only if such amendment is approved by the
vote of a majority of the Board of Trustees of the Portfolio who are not parties
to this Agreement or "interested persons" of any such party, cast in person at a
meeting called for the purpose of voting on such approval and, if required under
applicable law, the vote of a majority of the outstanding voting securities of
the Portfolio.
The terms "specifically approved at least annually", "vote of a majority of
the outstanding voting securities", "assignment", "affiliated person", and
"interested persons", when used in this Agreement, shall have the respective
meanings specified in, and shall be construed in a manner consistent with, the
1940 Act, subject, however, to such exemptions as may be granted by the
Securities and Exchange Commission under said Act.
9. Certain Records. Any records to be maintained and preserved pursuant to
the provisions of Rule 31a-1 and Rule 31a-2 adopted under the 1940 Act which are
prepared or maintained by the Subadvisor with respect to the Assets will be made
available promptly to the Portfolio on request.
10. Survival of Compensation Rates. All rights to compensation under this
Agreement shall survive the termination of this Agreement.
11. Entire Agreement. This Agreement states the entire agreement of the
parties with respect to investment advisory services to be provided to the
Portfolio by the Subadvisor and may not be amended except in a writing signed by
the parties hereto and approved in accordance with Section 8 hereof.
-5-
Should any part of this Agreement be held invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
Diversified has delivered, or will deliver to Subadvisor, current copies
and supplements thereto of each of the Prospectus and SAI pertaining to the
Portfolio, and will deliver to it all future amendments and supplements, if any.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
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
Commission, whether of special or general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
13. Change of Management and Pending Litigation. Subadvisor represents to
Diversified that it will disclose to Diversified promptly after it has knowledge
of any significant change or variation in its management structure or personnel
or any significant change or variation in its management style or investment
philosophy that is material to this Agreement. In addition, Subadvisor
represents to Diversified that it will similarly disclose to Diversified,
promptly after it has knowledge, the existence of any pending legal action being
brought against it whether in the form of a lawsuit or a non-routine
investigation by any federal or state governmental agency.
Diversified represents to Subadvisor that any information and advice
received by Diversified pursuant to this section will be kept strictly
confidential and will not be disclosed to any third party.
Diversified represents to Subadvisor that it will disclose to Subadvisor
promptly after it has knowledge of any significant change or variation in its
management structure or personnel that is material to this Agreement. In
addition, Diversified represents to Subadvisor that it will similarly disclose
to Subadvisor, promptly after it has knowledge, the existence of any pending
legal action being brought against it whether in the form of a lawsuit or a
non-routine investigation by any federal or state governmental agency.
Subadvisor represents to Diversified that any information received by
Subadvisor pursuant to this section will be kept strictly confidential and will
not be disclosed to any third party.
14. Use of Name. Subadvisor hereby agrees that Diversified may use the
Subadvisor's name in its marketing or advertising materials. Diversified agrees
to allow the Subadvisor to examine and approve any such materials prior to use.
-6-
IN WITNESS WHEREOF, the parties thereto have caused this Agreement to be
executed and delivered in their names and on their behalf by the undersigned,
thereunto duly authorized, all as of the day and year first above written.
Diversified Investment Advisors, Inc.
By:
------------------------------------
Xxxxxx X. Xxxxx
Senior Vice President & General
Counsel
Western Asset Management Company
By:
------------------------------------
Xxxxx X. Xxxxx
Head of Client Service
and Marketing Support
-7-
SCHEDULE B
The Subadvisor shall be compensated for its services under this Agreement on the
basis of the below-described annual fee schedule.
FEE SCHEDULE
.0030 OF THE FIRST $100 MILLION OF NET ASSETS
.0015 OF NET ASSETS IN EXCESS OF $100 MILLION
Net assets are equal to the market value of the portion of the Portfolio
allocated to the Subadvisor. Fees will be calculated by multiplying the
arithmetic average of the beginning and ending monthly net assets for each
calendar month by the fee schedule and dividing by twelve. The fee for each
calendar quarter will be paid quarterly in arrears.
Solely, for purposes of applying the decremental fee schedule described above,
any other assets managed by Subadvisor (or by its affiliate, Western Asset
Management Company ("WAM") with similar mandates) for Diversified will be
combined with the assets of this Portfolio managed by Subadvisor (or by WAM) to
determine the applicable basis points charge, e.g., if Subadvisor (together with
WAM) manages $50M for this Portfolio and $60M for one or more additional
Diversified funds (Portfolios or other Diversified funds) then the applicable
marginal charge would be .0015 of net assets in excess of $100M for this
example. The fee schedule shall only be amended by agreement between the
parties.
