FORM OF
INVESTMENT SUB-ADVISORY AGREEMENT
BETWEEN
X. X. XXXXXX INVESTMENT MANAGEMENT INC.
AND
STATE STREET RESEARCH & MANAGEMENT COMPANY
INVESTMENT SUBADVISORY AGREEMENT, effective as of the 21st day of January 2003,
between X.X. Xxxxxx Investment Management Inc. (the "Adviser"), a corporation
organized and existing under the laws of the State of Delaware, and STATE STREET
RESEARCH & MANAGEMENT COMPANY ("Subadviser"), a corporation organized and
existing under the laws of the State of Delaware.
WHEREAS, the Adviser has entered into an Investment Advisory Agreement dated as
of the 21st day of January 2003 ("Advisory Agreement") with X.X. Xxxxxx Xxxxxxx
Series Trust, a Massachusetts business trust (the "Trust"), which is engaged in
business as an open-end management investment company registered under the
Investment Company Act of 1940 ("1940 Act"); and
WHEREAS, the Trust is and will continue to be a series fund having two or more
investment portfolios, each with its own assets, investment objectives, policies
and restrictions (each a "Fund"); and
WHEREAS, the Subadviser is engaged principally in the business of rendering
investment advisory services and is registered as an investment adviser under
the Investment Advisers Act of 1940 ("Advisers Act"); and
WHEREAS, the Adviser desires to retain the Subadviser to assist it in the
provision of a continuous investment program for that portion of the assets of
the Fund listed on Appendix A
which the Adviser may from time to time assign to the Subadviser (the
"Subadviser Assets") and the Subadviser is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual promises herein set
forth, the parties hereto agree as follows:
1. APPOINTMENT. Adviser hereby retains the Subadviser to act as investment
adviser for and to manage the Subadviser Assets for the period and on the terms
set forth in this Agreement. The Subadviser accepts such employment and agrees
to render the services herein set forth, for the compensation herein provided.
2. DUTIES OF THE SUBADVISER
A. INVESTMENT SUBADVISORY SERVICES. Subject to the supervision of the
Trust's Board of Trustees (the "Board") and the Adviser, the Subadviser
shall (a) manage the investments of the Subadviser Assets in accordance
with the Fund's investment objective, policies, and restrictions as
provided in the Trust's Prospectus and Statement of Additional Information,
as currently in effect and as amended or supplemented from time to time
(hereinafter referred to as the "Prospectus"), and in compliance with the
requirements applicable to registered investment companies under applicable
laws and those requirements applicable to regulated investment companies
under Subchapter M of the Internal Revenue Code of 1986, as amended
("Code") and such other limitations as the Adviser may institute. The
Subadviser shall (a) make investment decisions for the Subadviser Assets;
(b) place purchase and sale orders for portfolio transactions for the
Subadviser Assets; and (c) employ professional portfolio managers and
securities analysts to provide research services to the Subadviser Assets.
In providing these services, the Sub-Adviser will conduct a continual
program of investment, evaluation and, if appropriate, sale and
reinvestment of the Subadviser Assets.
B. SUBADVISER UNDERTAKINGS. In all matters relating to the performance of
this Agreement,
the Subadviser shall act in conformity with the Trust's Articles of
Incorporation, By-Laws, and Prospectus and with the written instructions
and directions of the Board and the Adviser. The Subadviser hereby agrees
to:
(i) regularly report to the Board and the Adviser (in such form and
frequency as the Adviser and Subadviser mutually agree) with
respect to the implementation of the investment program,
compliance of the Subadviser Assets with the Prospectus, the 1940
Act and the Code, and on other topics as may reasonably be
requested by the Board or the Adviser, including attendance at
Board meetings, as reasonably requested, to present such reports
to the Board;
(ii) consult with the Trust's pricing agent regarding the valuation of
securities that are not registered for public sale, not traded on
any securities markets, or otherwise may be deemed illiquid for
purposes of the 1940 Act and for which market quotations are not
readily available;
(iii) Provide, subject to any obligations or undertakings reasonably
necessary to maintain the confidentiality of the Subadviser's
non-public information, any and all information, records and
supporting documentation about the composite of accounts and the
funds the Subadviser manages that have investment objectives,
policies, and strategies substantially similar to those employed
by the Subadviser in managing the Subadviser Assets which may be
reasonably necessary, under applicable laws, to allow the Trust or
its agent to present historical performance information concerning
the Subadviser's similarly managed accounts and funds, for
inclusion in the Trust's Prospectus and any other reports and
materials prepared by the Trust or its agent, in accordance with
regulatory requirements or as requested by applicable federal or
state regulatory authorities.
C. EXPENSES. The Subadviser will bear all of its expenses in connection
with the performance of its services under this Agreement. All other
expenses to be
incurred in the operation of the Fund will be borne by the Trust, except to
the extent specifically assumed by the Subadviser. The expenses to be borne
by the Trust include, without limitation, the following: organizational
costs, taxes, interest, brokerage fees and commissions, Trustees' fees,
Securities and Exchange Commission fees and state Blue Sky qualification
fees, advisory fees, charges of custodians, transfer and dividend
disbursing agents' fees, certain insurance premiums, industry association
fees, outside auditing and legal expenses, costs of independent pricing
services, costs of maintaining existence, costs attributable to investor
services (including, without limitation, telephone and personnel expenses),
costs of preparing and printing prospectuses and statements of additional
information for regulatory purposes and for distribution to existing
stockholders, costs of stockholders' reports and meetings, and any
extraordinary expenses.
D. BROKERAGE. The Subadviser will select brokers and dealers to effect all
orders for the purchase and sale of Subadviser Assets. In selecting brokers
or dealers to execute transactions on behalf of the Subadviser Assets of
the Fund, the Subadviser will seek the best overall terms available. In
assessing the best overall terms available for any transaction, the
Subadviser will consider factors it deems relevant, including, without
limitation, the breadth of the market in the security, the price of the
security, the financial condition and execution capability of the broker or
dealer and the reasonableness of the commission, if any, for the specific
transaction and on a continuing basis. In selecting brokers or dealers to
execute a particular transaction, and in evaluating the best overall terms
available, the Subadviser is authorized to consider the brokerage and
research services (within the meaning of Section 28(e) of the Securities
Exchange Act of 1934, as amended) provided to the Fund and/or other
accounts over which the Subadviser exercises investment discretion. Until
permitted by rule or order of the SEC, Subadviser will not engage in
principal transactions with any affiliate of the Adviser or of any other
subadviser to the Fund, and will engage in agency transactions with such
affiliates only in accordance with all applicable rules and
regulations. Subadviser will provide a list of its affiliates to Adviser,
as such may be amended from time to time. Adviser will provide to
Subadviser a list of affiliated brokers and dealers of the Adviser and of
each other subadviser to the Fund.
E. AGGREGATION OF ORDERS. On occasions when the Subadviser deems the
purchase or sale of a security to be in the best interest of the Subadviser
Assets as well as other clients of the Subadviser, the Subadviser to the
extent permitted by applicable laws and regulations, may, but shall be
under no obligation to, aggregate the orders for securities to be purchased
or sold. In such event, allocation of the securities so purchased or sold,
as well as the expenses incurred in the transaction, will be made by the
Subadviser in the manner the Subadviser considers to be the most equitable
and consistent with its fiduciary obligations to the Fund and to its other
clients. The Adviser recognizes that, in some cases, the Subadviser's
allocation procedure may limit the size of the position that may be
acquired or sold for the Subadviser Assets.
F. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Subadviser hereby agrees that all records which it
maintains for the Subadviser Assets of the Fund are the property of the
Trust and further agrees to surrender promptly to the Trust copies of any
of such records upon the Fund's or the Adviser's request, provided,
however, that Subadviser may retain copies of any records to the extent
required for it to comply with applicable laws. The Subadviser further
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940
Act the records relating to its activities hereunder required to be
maintained by Rule 31a-1 under the 1940 Act and to preserve the records
relating to its activities hereunder required by Rule 204-2 under the
Advisers Act for the period specified in said Rule. Notwithstanding the
foregoing, Subadviser has no responsibility for the maintenance of the
records of the Fund, except for those related to the Subadviser Assets.
G. SUBADVISER COMPLIANCE RESPONSIBILITIES. The Subadviser and the Adviser
acknowledge that the Subadviser is not the compliance agent for the Fund,
and does not have access to all of the Trust's books and records necessary
to perform certain compliance testing. However, to the extent that the
Subadviser has agreed to perform the services specified in this Agreement,
the Subadviser shall perform compliance testing with respect to the
Subadviser Assets based upon information in its possession and upon
information and written instructions received from the Adviser or the
Trust's Administrator and shall not be held in breach of this Agreement so
long as it performs in accordance with such information and instructions.
Specifically, the Subadviser shall not be responsible for the Fund being in
violation of any applicable law or regulation or investment policy or
restriction applicable to the Fund as a whole or for the Fund's failure to
qualify as a regulated investment company under the Code if the securities
and other holdings of the Subadviser Assets would not be in such violation
or failing to so qualify if the Subadviser Assets were deemed a separate
series of the Trust or a separate regulated investment company under the
Code. The Adviser or Trust's Administrator shall promptly provide the
Subadviser with copies of the Trust's Articles of Incorporation, By-Laws,
current Prospectus and any written policies or procedures adopted by the
Board applicable to the Fund and any amendments or revisions thereto.
Subadviser shall supply such reports or other documentation as reasonably
requested from time to time by the Adviser to evidence Subadviser's
compliance with such Prospectus, policies or procedures.
H. PROXY VOTING. The Subadviser shall use its good faith judgment in a
manner which it reasonably believes best serves the interests of the Fund's
shareholders to vote or abstain from voting all proxies solicited by or
with respect to the issuers of securities in the Subadviser Assets. The
Adviser shall cause to be forwarded to Subadviser all proxy solicitation
materials that Adviser receives. Subadviser shall provide to the Advisor a
summary of the votes cast.
I. USE OF NAMES. The Subadviser shall not use the name, logo, insignia, or
other identifying xxxx of the Trust or the Adviser or any of their
affiliates or any derivative or logo or trade or service xxxx thereof, or
disclose information related to the business of the Adviser or any of its
affiliates in material relating to the Subadviser in any manner not
approved prior thereto by the Adviser; provided, however, that the Adviser
shall approve all uses of its or the Trust's name and that of their
affiliates which merely refer in accurate terms to the appointment of the
Subadviser hereunder or which are required by the SEC or a state securities
commission; and provided, further, that in no event shall such approval be
unreasonably withheld. The Adviser shall not use the name, logo, insignia,
or other identifying xxxx of the Subadviser or any of its affiliates in any
prospectus, sales literature or other material relating to the Trust in any
manner not approved prior thereto by the Subadviser; provided, however,
that the Subadviser shall approve all uses of its name which merely refer
in accurate terms to the appointment of the Subadviser hereunder or which
are required by the SEC or a state securities commission; and provided,
further that in no event shall such approval be unreasonably withheld.
J. OTHER SUBADVISERS. With respect to any Fund, (i) the Subadviser will not
consult with any other subadviser to that Fund (including, in the case of
an offering of securities subject to Section 10(f) of the 1940 Act, any
subadviser that is a principal underwriter or an affiliated person of a
principal underwriter of such offering) concerning transactions for that
Fund in securities or other assets, except, in the case of transactions
involving securities of persons engaged in securities-related businesses,
for purposes of complying with the conditions of paragraphs (a) and (b) of
Rule 12d3-1 under the 1940 Act; and (ii) the Subadviser will provide advice
and otherwise perform services hereunder exclusively with respect to the
Subadviser Assets of that Fund.
3. COMPENSATION OF SUBADVISER. The Adviser will pay the Subadviser, with respect
to each Fund on Appendix A attached hereto the compensation specified in
Appendix A. Such fees will
be computed daily and paid monthly, calculated at an annual rate based on the
Subadviser Assets' average daily net assets as determined by the Trust's
accounting agent. Compensation for any partial period shall be pro-rated based
on the length of the period.
4. STANDARD OF CARE. The Subadviser shall exercise its best judgment in
rendering its services described in this Agreement. Except as may otherwise be
required by the 1940 Act or the rules thereunder or other applicable law, the
Subadviser shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund or the Adviser in connection with the matters
to which this Agreement relates, except a loss resulting from Subadviser's
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties hereunder or from reckless disregard by it of its
obligations and duties under this Agreement
5. INDEMNIFICATION.
a. The Adviser agrees to indemnify and hold harmless the Sub-Adviser from
and against any and all claims, losses, liabilities or damages (including
reasonable attorneys' fees and other related expenses) ("Losses"), howsoever
arising, from or in connection with this Agreement or the performance by the
Sub-Adviser of its duties hereunder; provided however that the Adviser will not
indemnify the Subadviser for Losses resulting from the Subadviser's willful
misfeasance, bad faith or gross negligence in the performance of its duties or
from the Subadviser's reckless disregard of its obligations and duties under
this Agreement
b. The Subadviser agrees to indemnify and hold harmless the Adviser from
and against any and all Losses resulting from the Subadviser's willful
misfeasance, bad faith, or gross negligence in the performance of, or from
reckless disregard of, the Subadviser's obligations and duties under this
Agreement; ; provided however that the Subadviser will not indemnify the Adviser
for Losses resulting from the Adviser's willful misfeasance, bad faith or gross
negligence in the performance of its duties or from the Adviser's reckless
disregard of its obligations and duties under this Agreement.
6. NON-EXCLUSIVITY. The services of the Subadviser to the Fund and the Trust are
not to be deemed to be exclusive, and the Subadviser and its affiliates shall be
free to render investment advisory or other services to others (including other
investment companies) and to engage in
other activities. It is understood and agreed that the directors, officers, and
employees of the Subadviser 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, including other investment companies. Adviser acknowledges
that Subadviser or its affiliates may give advice and take actions in the
performance of its duties to clients which differ from the advice, or the timing
and nature of actions taken, with respect to other clients' accounts or employee
accounts which may invest in some of the same securities recommended to advisory
clients. In addition, advice provided by the Subadviser may differ from advice
given by its affiliates.
7. MAINTENANCE OF INSURANCE. During the term of this Agreement and for a period
of one year after the termination hereof, Subadviser will maintain comprehensive
general liability coverage and will carry a fidelity bond covering it and each
of its employees and authorized agents with limits of not less than those
considered commercially reasonable and appropriate under current industry
practices.
8. CONFIDENTIALITY. Each party to this Agreement shall keep confidential any
nonpublic information concerning the other party and will not use or disclose
such information for any purpose other than the performance of its
responsibilities and duties hereunder, unless the non-disclosing party has
authorized such disclosure or if such disclosure is expressly required or
requested by applicable federal or state regulatory authorities. Nonpublic
information shall not include information a party to this Agreement can clearly
establish was (a) known to the party prior to this Agreement; (b) rightfully
acquired by the party from third parties whom the party reasonably believes are
not under an obligation of confidentiality to the other party to this Agreement;
(c) placed in public domain without fault of the party or its affiliates; or (d)
independently developed by the party without reference or reliance upon the
nonpublic information.
9. TERM OF AGREEMENT. This Agreement shall become effective as of the date of
its execution and shall continue in effect for a period of two years from the
date of execution. Thereafter, this Agreement shall continue automatically for
successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Board or (ii)
a vote of a "majority" (as defined in the 0000 Xxx) of the Fund's outstanding
voting securities, provided that in either event the continuance also is
approved by a majority of the Board who are not "interested persons" (as defined
in the 0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable, without penalty, on 60 days' written notice, by the Adviser, by the
Board, by vote of holders of a majority of the Fund's shares or by the
Subadviser, and will terminate five business days after the Subadviser receives
written notice of the termination of the Advisory Agreement between the Trust
and the Adviser. This Agreement also will terminate automatically in the event
of its assignment (as defined in the 1940 Act).
10. REPRESENTATIONS OF SUBADVISER. The Subadviser represents, warrants, and
agrees as follows:
A. The Subadviser: (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 1940 Act or the
Advisers Act from performing the services contemplated by this Agreement;
(iii) has met, and will 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
organization, 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 disqualify the
Subadviser from serving as an investment adviser of an investment company
pursuant to Section 9(a) of the 1940 Act or otherwise.
B. The Subadviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and, if it has not already
done so, will provide the Adviser and the Trust with a copy of such code of
ethics. On at least an annual basis, the Subadviser will comply with the
reporting requirements of Rule 17j-1, which may include (i) certifying to
the Adviser that the Subadviser and its Access Persons have complied with
the Subadviser's Code of Ethics with respect to the Subadviser Assets and
(ii) identifying any material violations which have occurred with respect
to the Subadviser Assets.
C. The Subadviser has provided the Adviser and the Trust with a copy of its
Form ADV as most recently filed with the SEC and hereafter will furnish a
copy of its annual amendment to the Adviser. The Adviser acknowledges
receipt of the Subadviser's Form ADV more than 48 hours prior to the
execution of this Agreement.
11. PROVISION OF CERTAIN INFORMATION BY SUBADVISER. The Subadviser will promptly
notify the Adviser (1) in the event the SEC or other governmental authority has
censured the Subadviser; placed limitations upon its activities, functions or
operations; suspended or revoked its registration, if any, as an investment
adviser; or has commenced proceedings or an investigation that may result in any
of these actions or (2) upon having a reasonable basis for believing that the
Fund has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Code. The Subadviser further agrees to notify
the Adviser promptly of any material fact known to the Subadviser respecting or
relating to the Subadviser that is not contained in the Prospectus, and is
required to be stated therein or necessary to make the statements therein not
misleading, or of any statement contained therein that becomes untrue in any
material respect. As reasonably requested by the Adviser or the Fund and in
accordance with the scope of Subadviser's obligations and responsibilities
contained in this Agreement, Subadviser will cooperate to provide assistance to
Adviser or the Fund in connection with Adviser's or Fund's compliance with the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated by the SEC
thereunder.
12. PROVISION OF CERTAIN INFORMATION BY THE ADVISER. The Adviser will promptly
notify the Subadviser (1) in the event that the SEC has censured the Adviser or
the Trust; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the Adviser's registration as an investment
adviser; or has commenced proceedings or an investigation that may result in any
of these actions and (2) upon
having a reasonable basis for believing that the Fund has ceased to qualify or
might not qualify as a regulated investment company under Subchapter M of the
Code.
13. AMENDMENT OF AGREEMENT. No provision of this Agreement may be changed,
waived, discharged, or terminated orally, but only by an instrument in writing
signed by both parties.
14. MISCELLANEOUS.
A. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of
laws principles thereof, and with the 1940 Act. To the extent that the
applicable laws of the State of New York conflict with the applicable
provisions of the 1940 Act, the latter shall control.
B. CAPTIONS. The Captions contained in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
C. ENTIRE AGREEMENT. This Agreement represents the entire agreement and
understanding of the parties hereto and shall supersede any prior
agreements between the parties relating to the subject matter hereof.
D. DEFINITIONS. 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 1940 Act shall be resolved by reference to such term or
provision of the 1940 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, releases or orders of the SEC validly issued pursuant
to the Act. As used in this Agreement, the terms "majority of the
outstanding voting securities," "affiliated person," "interested person,"
"assignment," "broker," "investment adviser," "net assets," "sale," "sell,"
and "security" shall have the same meaning as such terms have in the 1940
Act, subject to such exemptions as may be granted by the SEC by any rule,
release or order. Where the effect of a requirement of the federal
securities laws reflected in any
provision of this Agreement is made less restrictive by a rule, release, or
order of the SEC, whether of special or general application, such provision
shall be deemed to incorporate the effect of such rule, release, or order.
E. NOTICES. Any notice herein required is to be in writing and is deemed to
have been given to Subadviser or Adviser upon receipt of the same at their
respective addresses set forth below. All written notices required or
permitted to be given under this Agreement will be delivered by personal
service, by postage mail return receipt requested or by facsimile machine
or similar means of delivery that provide evidence of receipt. All notices
to Adviser shall be sent to: X.X. Xxxxxx Investment Management Inc., 000
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxxxxx.
All notices to Subadviser shall be sent to: Xxxxxxx Xxxxxx, Institutional
Marketing & Client Service, State Street Research & Management Company, Xxx
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000-0000, with a copy to the same address,
Attention: General Counsel.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
Attest: By:
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(Title)
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Date:
STATE STREET RESEARCH & MANAGEMENT COMPANY
Attest: By:
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(Title)
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Date:
APPENDIX A
FEE SCHEDULE
For the services provided by Subadviser to the Subadviser Assets, pursuant to
the attached Investment Sub-Advisory Agreement, the Adviser will pay the
Subadviser a fee, computed daily and payable monthly, based on the average daily
net assets of the Subadvisory Assets at the following annual rates of the
average daily net assets of the Subadviser Assets as determined by the Trust's
accounting agent:
FUND RATE
JPMorgan Multi-Manager Small Cap Growth Fund 0.55%
