▇▇▇▇ ▇▇▇▇▇▇▇ FUNDS III
SUBADVISORY CONSULTING AGREEMENT
AGREEMENT made this 29th day of December, 2006, among ▇▇▇▇ ▇▇▇▇▇▇▇
Investment Management Services, LLC, a Delaware limited liability company, ("the
Adviser"), MFC Global Investment Management (U.S.A.) Limited, a Canadian
corporation (the "Subadviser"), and Deutsche Asset Management, Inc., a Delaware
corporation ("Deutsche"). In consideration of the mutual covenants contained
herein, the parties agree as follows:
1. APPOINTMENT OF DEUTSCHE
Deutsche undertakes to provide the services described in Section 2 below in
connection with the Subadviser's management of the funds listed in Appendix A
(collectively, the "Fund of Funds"), subject to the supervision of the Trustees
of ▇▇▇▇ ▇▇▇▇▇▇▇ Funds III (the "Trust") and the Adviser. Deutsche will be an
independent contractor and will have no authority to act for or represent the
Trust, Adviser or Subadviser in any way except as expressly authorized in this
Agreement or another writing by the Trust, the Adviser and Subadviser.
Deutsche represents that it is registered as an investment adviser under
the Investment Advisers Act of 1940 (the "Investment Advisers Act").
2. SERVICES TO BE RENDERED BY DEUTSCHE
a. Deutsche will provide the Subadviser the following information and services
as may be requested by the Subadviser from time to time:
i.
o calculate the probability that the subadvisers to the nonFund of Funds
portfolios outperform their performance benchmarks;
o perform statistical performance analysis of historical manager returns
for managers that the Subadviser would like to include in its
potential line up on a quarterly basis;
o using a combination of sources, including Deutsche's proprietary
optimization technology, Deutsche will seek to optimize Fund of Funds
investments consistent with the performance objective specified by the
Subadviser (i.e. the probability of out-performing a benchmark,
minimum shortfall relative to the benchmark, and specification of the
benchmark for each Fund of Funds, and any constraints that the
Subadviser may specify on allocations to nonFund of Fund Portfolios)
on a quarterly basis;
o consult with the Subadviser to explain proposed allocations on a
quarterly basis and review past performance of the Fund of Funds
provided that Deutsche is given information on the performance of
these Fund of Funds and the actual allocations implemented.
b. Deutsche, at its expense, will furnish all necessary (i) investment and
management facilities, including salaries of personnel required for it to
execute its duties faithfully under this Agreement, and (ii) administrative
facilities, including bookkeeping, clerical personnel and equipment
necessary to execute its obligations under this Agreement.
c. Deutsche shall be entitled to sub-delegate, where necessary, the
performance of any or all of the services hereunder to any member of a
company controlled by Deutsche Bank AG ("Group Companies"), unless such
delegation would violate the anti-assignment provisions of the Investment
Advisers Act.
3. COMPENSATION OF DEUTSCHE
The Subadviser will pay Deutsche with respect to each Fund of Funds the
compensation specified in Appendix A to this Agreement.
4. LIABILITY OF DEUTSCHE
a. Neither Deutsche nor any of its directors, officers or employees shall be
liable to the Adviser, the Subadviser or the Trust for any error of
judgment or mistake of law or for any loss suffered by the Adviser, the
Subadviser or the Trust in connection with the matters to which this
Agreement relates except for losses resulting from willful misfeasance, bad
faith or gross negligence in the performance of, or from the reckless
disregard of, the duties of Deutsche or any of its directors.
b. Deutsche and any of its directors, officers or employees shall not in any
event have any liability to the Trust, Adviser or Subadviser to the extent
that performance of its obligations is prevented or impeded as a
consequence of any circumstances beyond its reasonable control, including
(without limitation) nationalization, currency restrictions, acts of war,
acts of God, breakdown or failure of transmission or communications or
computer facilities that is not due to the gross negligence of the Deutsche
or any of its affiliates, postal or other strikes or industrial action,
Government action, or the failure or disruption of any stock exchange,
clearing house, settlements system or market.
5. CONFLICTS OF INTEREST
It is understood that trustees, officers, agents and shareholders of the
Trust are or may be interested in Deutsche as trustees, officers, partners or
otherwise; that employees, agents and partners of Deutsche are or may be
interested in the Trust as trustees, officers, shareholders or otherwise; that
Deutsche may be interested in the Trust; and that the existence of any such dual
interest shall not affect the validity hereof or of any transactions hereunder
except as otherwise provided in the Agreement and Declaration of Trust of the
Trust or by specific provision of applicable law.
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6. REGULATION
Deutsche shall submit to all regulatory and administrative bodies having
jurisdiction over the services provided pursuant to this Agreement any
information, reports or other material which any such body by reason of this
Agreement may request or require pursuant to applicable laws and regulations.
7. DURATION AND TERMINATION OF AGREEMENT
This Agreement shall become effective with respect to each Fund of Funds on
the later of:
(i) its execution, and
(ii) the date of the meeting of the Board of Trustees of the Trust, at
which meeting this Agreement is approved as described below.
The Agreement will continue in effect for a period more than two years from
the date of its execution with respect to each Fund of Funds only so long as
such continuance is specifically approved at least annually either (i) by the
Trustees of the Trust or (ii) by a majority of the outstanding voting securities
of the Fund of Funds, provided that in either event such continuance shall also
be approved by the vote of a majority of the Trustees of the Trust who are not
interested persons (as defined in the Investment Company Act) of any party to
this Agreement cast in person at a meeting called for the purpose of voting on
such approval.
Any required shareholder approval of the Agreement, or of any continuance
of the Agreement, shall be effective with respect to any Fund of Funds if a
majority of the outstanding voting securities of the series (as defined in Rule
18f-2(h) under the Investment Company Act) of shares of that Fund of Funds votes
to approve the Agreement or its continuance, notwithstanding that the Agreement
or its continuance may not have been approved by a majority of the outstanding
voting securities of (a) any other Fund of Funds affected by the Agreement or
(b) all the Fund of Funds.
If any required shareholder approval of this Agreement or any continuance
of the Agreement is not obtained, Deutsche will continue to provide the services
described herein with respect to the affected Fund of Funds pending the required
approval of the Agreement or its continuance or of a new contract with Deutsche
or a different adviser or other definitive action; provided, that the
compensation received by Deutsche in respect of such Fund of Funds during such
period is in compliance with Rule 15a-4 under the Investment Company Act.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Trustees of the Trust, by the vote of a majority of the
outstanding voting securities of the Trust, or with respect to any Fund of Funds
by the vote of a majority of the outstanding voting securities of such
portfolio, on sixty days' written notice to the Adviser, Subadviser and
Deutsche, or by the Adviser, Subadviser or Deutsche on sixty days' written
notice to the Trust and the other parties. This Agreement will automatically
terminate, without the payment of any penalty, in the event of its assignment
(as defined in the Investment Company Act), in the event the Subadvisory
Agreement between the Subadviser and the Adviser terminates for any reason with
respect to the Fund of Funds or in the event the Advisory Agreement between the
Adviser and the Trust terminates for any reason with respect to the Fund of
Funds.
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8. PROVISION OF CERTAIN INFORMATION BY DEUTSCHE
Deutsche will promptly notify the Adviser and the Subadviser in writing of
the occurrence of any of the following events:
a. Deutsche fails to be registered as an investment adviser under the
Investment Advisers Act;
b. Deutsche 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 Trust; and
c. any change in control of Deutsche within the meaning of the Investment
Company Act.
9. SERVICES TO OTHER CLIENTS
The Adviser and the Subadviser understand, and have advised the Trust's
Board of Trustees, that Deutsche now acts, or may in the future act, as an
investment adviser to fiduciary and other managed accounts and as investment
adviser or subadviser to other investment companies. Further, the Adviser and
Subadviser understand, and have advised the Trust's Board of Trustees that
Deutsche and its affiliates may give advice and take action for its accounts,
including investment companies, which differs from advice given on the timing or
nature of action taken for the Fund of Funds. Deutsche is not obligated to
initiate transactions for a Fund of Funds in any security which Deutsche, its
affiliates or employees may purchase or sell for their own accounts or other
clients.
10. AMENDMENTS TO THE AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by the vote of a majority of the Trustees of the Trust and
by the vote of a majority of the Trustees of the Trust who are not interested
persons of any party to this Agreement cast in person at a meeting called for
the purpose of voting on such approval. Any required shareholder approval shall
be effective with respect to any Fund of Funds if a majority of the outstanding
voting securities of that Fund of Funds vote to approve the amendment,
notwithstanding that the amendment may not have been approved by a majority of
the outstanding voting securities of (a) any other Fund of Funds affected by the
amendment or (b) all the Fund of Funds of the Trust.
11. ENTIRE AGREEMENT
This Agreement contains the entire understanding and agreement of the
parties.
12. HEADINGS
The headings in the sections of this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
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13. NOTICES
All notices required to be given pursuant to this Agreement shall be
delivered or mailed to the last known business address of the Trust, Deutsche or
the Subadviser, as applicable, or by registered mail or a private mail or
delivery service providing the sender with notice of receipt. Notice shall be
deemed given on the date delivered or mailed in accordance with this paragraph.
14. 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.
15. REPRESENTATIONS OF THE ADVISER AND SUBADVISER
a. The Adviser and Subadviser each separately represent, warrant and agree on
a continuing basis the following:
1. it has the authority to enter into this Agreement, and that it has taken
all steps necessary to appoint Deutsche to perform the services envisaged
in this Agreement;
2. it is duly authorized and empowered to perform its duties and
obligations hereunder and that the terms of this Agreement do not
constitute a breach of any obligations by which it is bound whether arising
by contract, operation of law or otherwise;
3. as a condition of the provision of services by the Deutsche hereunder,
it will produce to Deutsche such documents as it may require as evidence of
its authority to enter into this Agreement, and will forthwith advise
Deutsche of any variation of or supplements to such documents relevant to
its authority to enter into this Agreement; and
4. it will notify Deutsche promptly if there is any change to the
investment policies of the Portfolio and will provide such other relevant
information as Deutsche may from time to time reasonably require in order
to fulfill its legal, regulatory and contractual obligations relating to
fulfilling its obligations under this Agreement, such relevant information
including, but not limited to, providing Deutsche with historical
performance (monthly return) for all of the managers that it wishes to
include in Deutsche's analysis, its performance objective (benchmarks for
each Fund of Funds, constraints, performance objective), and any views that
it wishes to place on a benchmark or a manager's future performance. The
Subadviser and the Adviser each separately acknowledge that a failure to
provide such information may adversely affect the quality of the services
that Deutsche may provide.
b. Deutsche represents, warrants and agrees on a continuing basis the
following:
1. it is duly registered as an investment adviser under the Investment
Advisers Act of 1940;
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2. it has the authority to enter into this Agreement;
3. it is duly authorized and empowered to perform its duties and
obligations hereunder and that the terms of this Agreement do not
constitute a breach of any obligations by which the Deutsche is bound
whether arising by contract, operation of law or otherwise.
16. GOVERNING LAW
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of The Commonwealth of Massachusetts, or any of the
applicable provisions of the Investment Company Act. 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.
17. LIMITATION OF LIABILITY
The Agreement and Declaration of Trust, a copy of which, together with all
amendments thereto (the "Declaration"), is on file in the office of the
Secretary of The Commonwealth of Massachusetts, provides that the name " ▇▇▇▇
▇▇▇▇▇▇▇ Funds II" refers to the Trustees under the Declaration collectively as
Trustees, but not as individuals or personally; and no Trustee, shareholder,
officer, employee or agent of the Trust shall be held to any personal liability,
nor shall resort be had to their private property, for the satisfaction of any
obligation or claim, in connection with the affairs of the Trust or any
portfolio thereof, but only the assets belonging to the Trust, or to the
particular Portfolio with respect to which such obligation or claim arose, shall
be liable.
18. CONFIDENTIALITY OF TRUST PORTFOLIO HOLDINGS
Deutsche agrees to treat Trust portfolio holdings as confidential
information in accordance with the Trust's "Policy Regarding Disclosure of
Portfolio Holdings," as such policy may be amended from time to time, and to
prohibit its employees from trading on any such confidential information.
19. CONSULTATION WITH SUBADVISERS TO OTHER TRUST PORTFOLIOS
As required by Rule 17a-10 under the Investment Company Act of 1940, the
Deutsche is prohibited from consulting with the entities listed below concerning
transactions for a Portfolio in securities or other assets:
1. other subadvisers to a Portfolio
2. other subadvisers to a Trust portfolio
3. other subadvisers to a portfolio under common control with the Portfolio
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20. COMPLIANCE
Upon execution of this Agreement, the Subadviser shall provide the Adviser
with the Subadviser's written policies and procedures ("Compliance Policies") as
required by Rule 206(4)-7 under the Investment Advisers Act. Throughout the term
of this Agreement, the Subadviser shall promptly submit to the Adviser: (i) any
material changes to the Compliance Policies, (ii) notification of the
commencement of a regulatory examination of the Subadviser and documentation
describing the results of any such examination and of any periodic testing of
the Compliance Policies, and (iii) notification of any material compliance
matter that relates to the services provided by the Subadviser to the Trust
including but not limited to any material violation of the Compliance Policies
or of the Subadviser's code of ethics and/or related code. Throughout the term
of this Agreement, the Subadviser shall provide the Adviser with any
certifications, information and access to personnel and resources (including
those resources that will permit testing of the Compliance Policies by the
Adviser) that the Adviser may reasonably request to enable the Trust to comply
with Rule 38a-1 under the Investment Company Act.
(THE REMAINDER OF THIS SPACE HAS BEEN INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers as of the date first
mentioned above.
▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT
SERVICES, LLC
By: \s\ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
MFC GLOBAL INVESTMENT MANAGEMENT
(U.S.A.) LIMITED
By: /s/ ▇▇▇▇▇▇ Light
--------------------------------------
Name: ▇▇▇▇▇▇ Light
Title: Chief Financial Officer
DEUTSCHE ASSET MANAGEMENT, INC.
By: /s/ Inna Okounkova
--------------------------------------
Name: Inna Okounkova
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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APPENDIX A
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:The Deutsche shall serve as subadviser consultant for the International
Allocation Portfolio (the "Portfolio"). The Subadviser will pay Deutsche, as
full compensation for all services provided under this Agreement with respect to
the Portfolio, the fee at an annual rate as follows (the "Subadviser Fee"):
First Between Excess Over
$250 million $250 million $500 million
of and $500 million of of
Portfolio Net Assets* Net Assets* Net Assets*
--------- ------------ ------------------- ------------
International Allocation Portfolio
The Subadviser Fee for the Portfolio shall be accrued for each calendar day
and the sum of the daily fee accruals shall be paid monthly to the Deutsche. The
daily fee accruals will be computed by multiplying the fraction of one over the
number of calendar days in the year by the applicable annual rate described in
the preceding paragraph, and multiplying this product by the net assets of the
Portfolio. For purposes of determining net assets of the Portfolio and
calculating the Subadviser Fee, the net assets of the Portfolio are determined
as of the close of business on the previous business day of the Trust.
If, with respect to the Portfolio, this Agreement becomes effective or
terminates, or if the manner of determining the Subadviser Fee changes, before
the end of any month, the fee (if any) for the period from the effective date to
the end of such month or from the beginning of such month to the date of
termination or from the beginning of such month to the date of such change, as
the case may be, shall be prorated according to the proportion which such period
bears to the full month in which such effectiveness or termination or change
occurs.
A-1