THIS SUB-ADVISORY AGREEMENT is made as of the 18 day of July, 2000
("Contract"), among Hillview Investment Trust II, a Delaware business trust
("Trust"), Hillview Capital Advisors, LLC ("Adviser"), a limited liability
company organized under the laws of the State of Delaware and Harris Associates,
L.P. a Illinois Partnership organized under the laws of the State of Delaware
("Sub-Adviser").
WHEREAS, the Adviser has entered into an Investment Advisory and
Administration Agreement dated June 12, 2000 ("Management Agreement") with the
Trust, an open-end management investment company registered under the Investment
Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Hillview Alpha Fund ("Fund") is a series of the Trust; and
WHEREAS, under the Management Agreement, the Adviser has agreed to
provide certain investment advisory and administrative services to the Fund; and
WHEREAS, the Adviser is authorized under the Management Agreement to
delegate its investment advisory responsibilities to one or more persons or
companies; and
WHEREAS, the Sub-Adviser is willing to furnish such services to the
Adviser and the Fund;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, Trust, Adviser and the Sub-Adviser agree as follows:
1. Appointment. The Trust hereby appoints and employs the Sub-Adviser
as a discretionary portfolio manager, on the terms and conditions set forth
herein, of those assets of the Fund which the Adviser determines to assign to
the Sub-Adviser (those assets being referred to as the "Fund Account"). The
Adviser may, from time to time, make additions to and withdrawals, including
cash and cash equivalents, from the Fund Account.
2. Acceptance of Appointment. The Sub-Adviser accepts that appointment
and agrees to render the services herein set forth, for the compensation herein
provided.
3. Duties as Sub-Adviser.
(a) Subject to the supervision and direction of the Trust's Board of
Trustees ("Board") and of the Adviser, and all written guidelines adopted by the
Trust or the Adviser that are provided to the Sub-Adviser, the Sub-Adviser will
provide a continuous investment program with respect to the Fund Account,
including investment research and management for all securities and investments
and cash equivalents in the Fund Account. The Sub-Adviser will determine from
time to time what investments in the Fund Account will be purchased, retained or
sold by the Fund. The Sub-Adviser will be responsible for placing purchase and
sell orders for investments and for other related transactions with respect to
the Fund Account. The Sub-Adviser will provide services under
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this Contract in accordance with the Fund's investment objective, policies and
restrictions and the description of its investment strategy and style, all as
stated in the Trust's registration statement under the 1940 Act, and any
amendments or supplements thereto ("Registration Statement") of which the
Sub-Adviser has notice.
(b) The Sub-Adviser agrees that, in placing orders with brokers, it
will seek to obtain the best net result in terms of price and execution;
provided that, on behalf of the Fund, the Sub-Adviser may, in its discretion,
use brokers (including brokers that may be affiliates of the Sub-Adviser to the
extent permitted by Section 3(c) hereof) who provide the Sub-Adviser with
research, analysis, advice and similar services to execute portfolio
transactions, and the Sub-Adviser may pay to those brokers in return for
brokerage and research services a higher commission than may be charged by other
brokers, subject to the Sub-Adviser's determining in good faith that such
commission is reasonable in terms either of the particular transaction or of the
overall responsibility of the Sub-Adviser to the Fund and its other clients and
that the total commissions paid by the Fund will be reasonable in relation to
the benefits to the Fund over the long term. 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 federal securities laws and the
rules and regulations thereunder. Whenever the Sub-Adviser simultaneously places
orders to purchase or sell the same security on behalf of the Fund and one or
more other accounts advised by the Sub-Adviser, the orders will be allocated as
to price and amount among all such accounts in a manner believed to be equitable
over time to each account. The Adviser recognizes that in some cases this
procedure may adversely affect the results obtained for the Fund.
(c) The Sub-Adviser will not execute without the prior written approval
of the Adviser any portfolio transactions for the Fund Account with a broker
which is (i) an affiliated person of the Trust, including the Adviser or any
Sub-Adviser for any Fund of the Trust; (ii) a principal underwriter of the
Fund's shares; or (iii) an affiliated person of such an affiliated person or
principal underwriter. The Adviser agrees that it will provide the Sub-Adviser
with a list of such brokers and dealers and will, from time to time, update such
list as necessary.
(d) The Sub-Adviser will maintain all books and records required to be
maintained pursuant to the 1940 Act and the rules and regulations promulgated
thereunder with respect to actions by the Sub-Adviser on behalf of the Fund, and
will furnish the Board and the Adviser with such periodic and special reports as
the Board or the Adviser reasonably may request. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, the Sub-Adviser hereby agrees
that all records that it maintains for the Fund are the property of the Trust,
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
any records that it maintains for the Trust and that are required to be
maintained by Rule 31a-1 under the 1940 Act, and further agrees to surrender
promptly to the Trust a complete set of any records that it maintains for the
Fund upon request by the Trust.
(e) All transactions will be consummated by payment to or delivery by
the custodian designated by the Trust (the "Custodian"), or such depositories or
agents as may be designated by the Custodian in writing, of all cash and/or
securities due to or from the Fund Account, and the Sub-Adviser shall not have
possession or custody thereof. The Sub-Adviser shall advise the Custodian and
confirm in writing to the Trust and to the Adviser or any other designated agent
of the Fund all investment orders for the Fund Account placed by it with brokers
and dealers at the time and in the manner set forth in Rule 31a-1 under the 1940
Act. For purposes of the foregoing sentence, communication to the Custodian via
DTC is acceptable. The Trust shall issue to the
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Custodian such instructions as may be appropriate in connection with the
settlement of any transaction initiated by the Sub-Adviser. The Trust shall be
responsible for all custodial arrangements and the payment of all custodial
charges and fees, and upon giving proper instructions to the Custodian, the
Sub-Adviser shall have no responsibility or liability with respect to custodial
arrangements or the acts, omissions or other conduct of the Custodian, except
that it shall be the responsibility of the Sub-Adviser to communicate it to the
Adviser if the Custodian fails to confirm in writing proper execution of the
instructions.
(f) At such times as shall be reasonably requested by the Board or the
Adviser, the Sub-Adviser will provide the Board and the Adviser with economic
and investment analyses and reports as well as quarterly reports setting forth
the performance of the Fund Account and make available to the Board and Adviser
any economic, statistical and investment services that the Sub-Adviser normally
makes available to its institutional or other customers.
(g) In accordance with procedures adopted by the Board, as amended from
time to time, the Sub-Adviser is responsible for assisting in the fair valuation
of all its portfolio securities and will use its reasonable effort to arrange
for the provision of valuation information or a price (s) from a party(ies)
independent of the Sub-Adviser for each portfolio security for which the
custodian does not obtain prices in the ordinary course of business from an
automated pricing service.
4. Further Duties. In all matters relating to the performance of this
Contract, the Sub-Adviser will act in conformity with the Trust's Declaration of
Trust, By-Laws and Registration Statement of which it has received notice and
with the written instructions and written directions of the Board and the
Adviser; and will comply with the requirements of the 1940 Act and the
Investment Advisers Act of 1940, as amended ("Advisers Act") and the rules under
each, and all other federal and state laws and regulations applicable to the
Trust and the Fund. The Adviser agrees to provide to the Sub-Adviser copies of
the Trust's Declaration of Trust, By-Laws, Registration Statement, written
instructions and directions of the Board and the Adviser, and any amendments or
supplements to any of these materials as soon as practicable after such
materials become available.
5. Proxies. The Sub-Adviser will vote all proxies solicited by or with
respect to issuers of securities in which assets of the Fund Account may be
invested from time to time. At the request of the Sub-Adviser, the Adviser shall
provide the Sub-Adviser with its or the Trust's recommendations as to the voting
of such proxies. The Adviser shall instruct the Custodian to forward or cause to
be forwarded to the Sub-Adviser all relevant proxy solicitation materials.
6. Expenses. During the term of this Contract, the Sub-Adviser will
bear all expenses incurred by it in connection with its services under this
Contract other than the cost of securities (including brokerage commissions,
transactional fees and taxes, if any) purchased for the Fund. The Fund shall be
responsible for its expenses.
7. Compensation. The compensation of the Sub-Adviser for its services
under this Contract shall be calculated and paid by the Trust in accordance with
the attached Schedule A.
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8. Limitation of Liability. The Sub-Adviser shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Fund, the
Trust, its shareholders or by the Adviser in connection with the matters to
which this Contract relates, except a loss resulting from willful misfeasance,
bad faith or gross negligence on its part in the performance of its duties or
from reckless disregard by it of its obligations and duties under this Contract.
Nothing in this paragraph shall be deemed a limitation or waiver of any
obligation or duty that may not by law be limited or waived.
9. Indemnification.
(a) The Adviser and the Trust shall indemnify the Sub-Adviser or any of
its directors, officers, employees or affiliates for all losses, damages,
liabilities, costs and expenses (including legal) ("Losses") as they are
incurred by the Sub-Adviser by reason of or arising out of any act or omission
by the Adviser or Trust under this Agreement, or any breach of warranty,
representation or agreement hereunder, except to the extent that such Losses
arise as a result of the negligence of the Sub-Adviser or the Sub-Adviser's
breach of fiduciary duty to the Adviser or the Trust.
(b) The Sub-Adviser shall indemnify the Adviser or any of its
directors, officers, employees or affiliates for all losses, damages,
liabilities, costs and expenses (including legal) ("Losses") as they are
incurred by the Adviser by reason of or arising out of any act or omission by
the Sub-Adviser under this Agreement, or any breach of warranty, representation
or agreement hereunder, except to the extent that such Losses arise as a result
of the negligence of the Adviser or the Adviser's breach of fiduciary duty to
the Sub-Adviser.
(c) The Sub-Adviser shall indemnify the Trust or any of its directors,
officers, employees or affiliates for all losses, damages, liabilities, costs
and expenses (including legal) ("Losses") as they are incurred by the Trust by
reason of or arising out of any act or omission by the Sub-Adviser under this
Agreement, or any breach of warranty, representation or agreement hereunder,
except to the extent that such Losses arise as a result of the negligence of the
Trust or the Trust's breach of fiduciary duty to the Sub-Adviser.
10. Representations, Warranties and Agreements of the Trust. The Trust
represents, warrants and agrees that:
(a) Each of the Adviser and the Sub-Adviser has been duly appointed by
the Board of Trustees of the Trust to provide investment services to the Fund
Account as contemplated hereby.
(b) The Trust will deliver to the Sub-Adviser a true and complete copy
of the Fund's Registration Statement as effective from time to time and such
other documents or instruments governing the investment of the Fund Account and
such other information as is necessary for the Sub-Adviser to carry out its
obligations under this Contract.
(c) The Trust is currently in compliance and shall at all times
continue to comply with the requirements imposed upon the Trust by applicable
law and regulations.
11. Representations of Adviser. The Adviser represents, warrants and
agrees that:
(a) The Adviser has been duly authorized by the Board of Trustees of
the Trust to delegate to the Sub-Adviser the provision of investment services to
the Fund Account as contemplated hereby.
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(b) The Adviser is currently in compliance and shall at all times
continue to comply with the requirements imposed upon the Adviser by applicable
law and regulations.
12. Representations of 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 for so long as this
Contract remains in effect; (ii) is not prohibited by the 1940 Act, the Advisers
Act or other law, regulation or order from performing the services contemplated
by this Contract; (iii) has met and will seek to continue to meet for so long as
this Contract 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 Contract; (iv) has the authority to enter into and perform
the services contemplated by this Contract; and (v) will promptly notify Adviser
of the occurrence of any event that would disqualify the Sub-Adviser from
serving as an investment adviser of an investment company pursuant to Section
9(a) of the 1940 Act or otherwise. The Sub-Adviser will also immediately notify
the 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.
(b) The Sub-Adviser has adopted a written code of ethics complying with
the requirements of Rule 17j-1 under the 1940 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 Contract is in effect, the president, Chief Operating 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 during the previous
year and that there has been no violation of the Sub-Adviser's code of ethics
or, if such a 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 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 all other
records relevant to the Sub-Adviser's code of ethics.
(c) 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 Securities and Exchange Commission ("SEC") and promptly
will furnish a copy of all amendments to the Trust and the Adviser at least
annually. Such amendments shall reflect all changes in the Sub-Adviser's
organizational structure, professional staff or other significant developments
affecting the Sub-Adviser, as required by the Investment Advisers Act of 1940.
(d) The Sub-Adviser will notify the Trust and the Adviser of any change
of control of the Sub-Adviser, including any change of its general partners,
controlling persons or 25% shareholders, as applicable, and any changes in the
key personnel who are either the portfolio manager(s) of the Fund Account or
senior management of the Sub-Adviser, in each case prior to, or promptly after,
such change. The Sub-Adviser agrees to bear all reasonable expenses of the Fund,
if any, arising out of such change in control.
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(e) The Sub-Adviser agrees to maintain an appropriate level of errors
and omissions or professional liability insurance coverage.
(f) The Sub-Adviser agrees that neither it, nor any of its affiliates,
will in any way refer directly or indirectly to its relationship with the Trust,
the Fund, the Adviser or any of their respective affiliates in offering,
marketing or other promotional materials without the express written consent of
the Adviser. However, the Sub-Adviser may use the performance of the Fund
Account in its composite performance.
13. Services Not Exclusive. The services furnished by the Sub-Adviser
hereunder are not to be deemed to be exclusive, and the Sub-Adviser shall be
free to furnish similar services to others, except as prohibited by applicable
law or agreed upon in writing among the Sub-Adviser, the Fund and the Adviser.
14. Confidentiality. Subject to the duty of the Sub-Adviser and the
Adviser to comply with applicable law, including any demand of any regulatory or
taxing authority having jurisdiction, the parties hereto shall treat as
confidential all material non public information pertaining to the Fund Account
and the actions of the Sub-Adviser, the Adviser and the Fund in respect thereof.
Unless such use is required by law, the Adviser and the Trust may not use
Sub-Adviser's name, investment performance information, other descriptive
biographical information about the Sub-Adviser or its personnel, or other
pertinent information regarding the Sub-Adviser in offering documents for the
Fund, and in marketing or advertising materials relating to the Fund, the Trust
or the Adviser, without consent of the Sub-Adviser, which will not be
unreasonably withheld.
15. Duration and Termination.
(a) This Contract shall become effective upon the date first above
written, provided that this Contract 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 parties to this Contract or interested persons of any such party, 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. Adviser shall
provide Sub-Adviser with verification that such approvals have occurred.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for two years from its effective date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually: (i) by a vote of a majority of those trustees of the Trust who
are not parties to this Contract or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval, and
(ii) by the Board or by vote of a majority of the outstanding voting securities
of the Fund. Adviser shall provide Sub-Adviser with verification that such
approvals have occurred.
(c) Notwithstanding the foregoing, this Contract may be terminated by
any party hereto at any time, without the payment of any penalty, immediately
upon written notice to the other parties hereto in the event of material breach
of any provision thereof by the party so notified if such breach shall not have
been cured within a 20-day period after notice of such breach; or otherwise, by
any party upon thirty (30) days written notice to the other parties hereto. The
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Agreement may also be terminated immediately if, in the reasonable judgment of
the Trust or the Adviser, the Sub-Adviser becomes unable to discharge its duties
and obligations under this Contract, including circumstances such as financial
insolvency of the Sub-Adviser or other circumstances that could adversely affect
the Fund. This Contract will terminate automatically in the event of its
assignment or upon termination of the Advisory Contract as it relates to the
Fund.
16. Amendment of this Contract. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Contract shall be
effective until approved (i) by a vote of a majority of those trustees of the
Trust who are not parties to this Contract or interested persons of any such
party, and (ii) by a vote of a majority of the Fund's outstanding voting
securities (unless the Trust receives an SEC order or no-action letter
permitting it to modify the Contract without such vote or a regulation exists
under the 1940 Act that permits such action without such vote).
17. Trust and Shareholder Liability. The Adviser and Sub-Adviser are
hereby expressly put on notice of the limitation of shareholder liability as set
forth in the Declaration of Trust of the Trust 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 Sub-Adviser further agree that they shall not seek satisfaction
of any such obligation from the shareholders or any individual shareholder of
the Fund, nor from the Trustees or any individual Trustee of the Trust.
18. Governing Law. This Contract shall be construed in accordance with
the 1940 Act and the laws of the State of Delaware, without giving effect to the
conflicts of laws principles thereof. To the extent that the applicable laws of
the State of Delaware conflict with the applicable provisions of the 1940 Act,
the latter shall control.
19. Miscellaneous. The captions in this Contract 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. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
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 exemption as may be granted by the SEC by any
rule, regulation or order. Where the effect of a requirement of the federal
securities laws reflected in any provision of this Contract is made less
restrictive by a rule, regulation or order of the SEC, whether of special or
general application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order. This Contract and the Schedule(s) attached
hereto embody the entire agreement and understanding among the parties. This
Contract may be signed in counterpart.
20. Notices. Any notice herein required is to be in writing and is
deemed to have been given to the Sub-Adviser 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 Contract will be delivered
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by personal service, by postage mail - return receipt requested or by facsimile
machine or a similar means of same day delivery which provides evidence of
receipt (with a confirming copy by mail as set forth herein). All notices
provided to Adviser will be sent to the attention of Kathleen Wood, Director of
Investment Operations. All notices provided to the Sub-Adviser will be sent to
the attention of __________________.
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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.
HILLVIEW INVESTMENT TRUST II
on behalf of
HILLVIEW ALPHA FUND
1055 Washington Boulevard, Third Floor
Stamford, Connecticut 06901
Attest:
By: /s/ Kathleen Wood By: /s/ David M. Spungen
--------------------------- ----------------------------------
Name: Kathleen Wood Name: David M. Spungen
Title: Secretary Title: President and Trustee
HILLVIEW CAPITAL ADVISORS, LLC
1055 Washington Boulevard, Third Floor
Stamford, Connecticut 06901
Attest:
By: /s/ Kathleen Wood By: /s/ David M. Spungen
---------------------------- ---------------------------------
Name: Kathleen Wood Name: David M. Spungen
Title: Director of Title: President and Managing Partner
Investment Operations
SUB-ADVISER
Attest:
By: /s/ Susan Kehoe By: /s/ Anita M. Nagler
-------------------------- -----------------------------------
Name: Susan Kehoe Name: Anita M. Nagler
Title: Assistant to COO Title: Chief Operating Officer
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EXHIBIT A
SUB-ADVISORY FEES
This Exhibit A contains the sub-advisory fee information required by
Section 7 of the Sub-Advisory Agreement among Hillview Investment Trust II
("Trust"), Hillview Capital Advisers, LLC ("Adviser") and Harris Associates,
L.P. ("Sub-Adviser") relating to the Alpha Fund series ("Fund") of the Trust.
Fee Schedule. Fees payable to the Sub-Adviser pursuant to this Contract
shall be payable within ten days after receipt by the Trust of the Sub-Adviser's
bill after the end of each calendar quarter for services rendered during the
prior quarter (or billing period, if less than a calendar quarter). The fees are
calculated as of the close of trading on the last business day of the calendar
quarter by applying the applicable fee rate to the average daily assets of the
Fund allocated to the Sub-Adviser for that period. For purposes of calculating
the fee, the value of the Fund's assets shall be determined in the same manner
as that which the Fund uses to determine the net asset value of its shares. The
applicable annualized fee rate shall be 0.75% on the first $20,000,000.00 of the
Fund's assets allocated to the Sub-Adviser, and 0.50% thereafter.
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