SUB-ADVISORY AGREEMENT
THIS SUB-ADVISORY AGREEMENT is made as of this 1st day of March, 2005
by and between PIONEER INVESTMENT MANAGEMENT, INC., a Delaware corporation and a
member of the UniCredito Italiano banking group, register of banking groups with
its principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Adviser"), and Cullen Capital Management, LLC, a Delaware limited
liability company with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Sub-Adviser").
W I T N E S S E T H
WHEREAS, pursuant to authority granted to the Adviser by the Board of
Trustees (the "Board") of the Pioneer Variable Contracts Trust (the "Trust"), on
behalf of its portfolio, Pioneer Cullen Value VCT Portfolio (the "Portfolio")
and pursuant to the provisions of the Management Agreement dated as of March 1,
2005 between the Adviser and the Trust, on behalf of the Portfolio (the
"Management Agreement"), the Adviser has selected the Sub-Adviser to act as a
sub-investment adviser of the Portfolio and to provide certain other services,
as more fully set forth below, and to perform such services under the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Adviser and the Sub-Adviser do hereby agree as follows:
1. The Sub-Adviser's Services.
(a) Investment Services. The Sub-Adviser shall act as sub-investment adviser
with respect to the ------------------- Portfolio. In such capacity, the
Sub-Adviser shall, subject to the supervision of the Adviser and the Board,
regularly provide the Portfolio with investment research, advice and
supervision and shall furnish continuously an investment program for the
Portfolio, consistent with the investment objectives and policies of the
Portfolio. The Sub-Adviser shall determine, from time to time, what
securities shall be purchased for the Portfolio, what securities shall be
held or sold by the Portfolio and what portion of the Portfolio's assets
shall be held uninvested in cash, subject always to the provisions of the
Trust's Certificate of Trust, Agreement and Declaration of Trust, By-Laws
and its registration statement on Form N-1A (the "Registration Statement")
under the Investment Company Act of 1940, as amended (the "1940 Act"), and
under the Securities Act of 1933, as amended (the "1933 Act"), covering the
Portfolio's shares, as filed with the U.S. Securities and Exchange
Commission (the "Commission"), and to the investment objectives, policies
and restrictions of the Portfolio, as each of the same shall be from time
to time in effect. To carry out such obligations, the Sub-Adviser shall
exercise full discretion and act for the Portfolio in the same manner and
with the same force and effect as the Portfolio itself might or could do
with respect to purchases, sales or other transactions, as well as with
respect to all other such things necessary or incidental to the furtherance
or conduct of such purchases, sales or other transactions. Notwithstanding
the foregoing, the Sub-Adviser shall, upon written instructions from the
Adviser, effect such portfolio transactions for the Portfolio as the
Adviser may from time to time direct. No reference in this Agreement to the
Sub-Adviser having full discretionary authority over the Portfolio's
investments shall in any way limit the right of the Adviser, in its sole
discretion, to establish or revise policies in connection with the
management of the Portfolio's assets or to otherwise exercise its right to
control the overall management of this Portfolio's assets.
(b) Compliance. The Sub-Adviser agrees to comply with the requirements of the
1940 Act, the Investment ---------- Advisers Act of 1940 (the "Advisers
Act"), the 1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act"), the Commodity Exchange Act and the respective rules and
regulations thereunder, as applicable, as well as with all other applicable
federal and state laws, rules, regulations and case law that relate to the
services and relationships described hereunder and to the conduct of its
business as a registered investment adviser. The Sub-Adviser also agrees to
comply with the objectives, policies and restrictions set forth in the
Registration Statement, as amended or supplemented, of the Trust, and with
any policies, guidelines, instructions and procedures approved by the Board
or the Adviser and provided to the Sub-Adviser. In selecting the
Portfolio's securities and performing the Sub-Adviser's obligations
hereunder, the Sub-Adviser shall conduct its activities in such a manner as
to cause the Portfolio to comply with the applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), and the rules and
regulations thereunder (including, without limitation, Subchapter M of the
Code and the investment diversification provisions of Section 817(h) of the
Code. The Sub-Adviser shall maintain compliance procedures for the
Portfolio that it reasonably believes are adequate to ensure the
Portfolio's compliance with the foregoing. The Sub-Adviser shall also
maintain compliance procedures that it reasonably believes are adequate to
ensure its compliance with the Advisers Act. No supervisory activity
undertaken by the Adviser shall limit the Sub-Adviser's full responsibility
for any of the foregoing.
(c) Proxy Voting. The Board has the authority to determine how proxies with
respect to securities that are ------------ held by the Portfolio shall be
voted, and the Board has initially determined to delegate the authority and
responsibility to vote proxies for the Portfolio's securities to the
Adviser. So long as proxy voting authority for the Portfolio has been
delegated to the Adviser, the Sub-Adviser shall provide such assistance to
the Adviser with respect to the voting of proxies for the Portfolio as the
Adviser may from time to time reasonably request, and the Sub-Adviser shall
promptly forward to the Adviser any information or documents upon receipt
necessary for the Adviser to exercise its proxy voting responsibilities.
The Sub-Adviser shall not vote proxies with respect to the securities held
by the Portfolio unless and until the Board or the Adviser delegates such
authority and responsibility to the Sub-Adviser or otherwise instructs the
Sub-Adviser to do so in writing, whereupon the Sub-Adviser shall carry out
such responsibility in accordance with the Trust's Proxy Voting Policies
and any instructions that the Board or the Adviser shall provide from time
to time and shall provide such reports and keep such records relating to
proxy voting as the Board or the Adviser may reasonably request or as may
be necessary for the Portfolio to comply with the 1940 Act and other
applicable law. Any such delegation of proxy voting responsibility to the
Sub-Adviser may be revoked or modified by the Board or the Adviser at any
time.
(d) Recordkeeping. The Sub-Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the
Portfolio, except as otherwise provided herein or as may be reasonably
necessary for the Sub-Adviser to supply to the Adviser, the Trust or
its Board the information required to be supplied under this Agreement.
The Sub-Adviser shall maintain separate books and detailed
records of all matters pertaining to the Portfolio's assets advised by
the Sub-Adviser required by subparagraphs (b)(5), (6), (7), (9), (10)
and (11) and paragraph (f) of Rule 31a-1 under the 1940 Act (other than
those records being maintained by the Adviser, custodian or transfer
agent appointed by the Trust) relating to Trust transactions its
responsibilities provided hereunder with respect to the Portfolio, and
shall preserve such records for the periods and in a manner prescribed
therefore by Rule 31a-2 under the 1940 Act (the "Trust's Books and
Records"). The Portfolio's Books and Records shall be available to the
Adviser and the Board at any time upon request with reasonable notice,
copies of which shall be delivered to the Trust upon the termination of
this Agreement pursuant to Section 11 of this Agreement and shall be
available for telecopying without delay during any day the Portfolio is
open for business.
(e) Holdings Information and Pricing. The Sub-Adviser shall keep the Trust and
the Adviser informed of -------------------------------- developments
materially affecting the Portfolio's holdings, and shall, on its own
initiative, furnish the Trust and the Adviser from time to time with
whatever information the Sub-Adviser believes is appropriate for this
purpose and is readily available to the Sub-Adviser. The Sub-Adviser agrees
to immediately notify the Adviser if the Sub-Adviser believes that the
market quotations are not readily available for of any security held by the
Portfolio or if the market price does not reflect the security's fair
value. In such instances, the Sub-Adviser shall provide assistance to the
Adviser and/or the Portfolio's pricing agent in making determinations of
such portfolio securities in accordance with the 1940 Act and the
Portfolio's valuation procedures.
(f) Cooperation with Agents of the Adviser and the Trust. The Sub-Adviser
agrees to cooperate with and provide reasonable assistance to the
Adviser, the Portfolio, the Portfolio's custodian and foreign
sub-custodians, the Portfolio's pricing agents and all other agents and
representatives of the Trust and the Adviser, provide them with such
information with respect to securities held by the Portfolio as they
may reasonably request from time to time in the performance of their
obligations, provide prompt responses to reasonable requests made by
such persons and establish appropriate interfaces with each so as to
promote the efficient exchange of information and compliance with
applicable laws and regulations.
2. Code of Ethics. The Sub-Adviser has adopted a written code of ethics
that it reasonably believes complies with the requirements of Rule
17j-1 under the 1940 Act, which it will provide to the Adviser and the
Trust. The Sub-Adviser shall comply and require its employees to comply
in all respects with the Sub-Adviser's Code of Ethics, as in effect
from time to time. Upon request, the Sub-Adviser shall provide the
Trust with a (i) a copy of the Sub-Adviser's current Code of Ethics, as
in designed necessary to prevent Access Persons from engaging in any
conduct prohibited by the Sub-Adviser's Code of Ethics. Annually, the
Sub-Adviser shall furnish a written report, which complies with the
requirements of Rule 17j-1, concerning the Sub-Adviser's Code of Ethics
to the Trust and the Adviser. The Sub-Adviser shall respond to requests
for information from the Adviser as to violations of the Code and any
sanctions imposed by the Sub-Adviser in connection with such
violations. The Sub-Adviser shall immediately notify the Adviser of any
material violation of the Code, whether or not such violation relates
to any security held by the Portfolio.
3. Information and Reporting. The Sub-Adviser shall promptly report to the
Adviser any material developments regarding the securities of the
Portfolio of which the Sub-Adviser has knowledge that materially
affects the Portfolio. In this regard, the Sub-Adviser shall provide
the Trust, the Adviser, and their respective officers with such
periodic reports concerning the obligations the Sub-Adviser has assumed
under this Agreement as the Trust and the Adviser may from time to time
reasonably request. The Sub-Adviser shall promptly notify the Advise of
any financial condition that is likely to impair the Sub-Adviser's
ability to perform its obligations under this Agreement.
(a) Notification of Breach / Compliance Reports. The Sub-Adviser shall notify
the Adviser immediately upon -------------------------------------------
its detection of (i) any failure on its part to manage the Portfolio in
accordance with this Agreement; or (ii) any breach by the Sub-Adviser of
any of the policies, guidelines or procedures of the Portfolio of the
Adviser provided in writing to the Sub-Adviser or of the Sub-Adviser
insofar as they relate or reasonably would affect the performance of the
Sub-Adviser's responsibilities hereunder. In addition, the Sub-Adviser
shall provide a quarterly certification the Sub-Adviser has managed the
Portfolio in accordance with the provisions of this Agreement in the form
provided by the Adviser from time to time. The Sub-Adviser acknowledges and
agrees that the Adviser may, in its discretion, provide such quarterly
compliance certifications to the Board. The Sub-Adviser agrees to correct
any such failure promptly and to take any action that the Adviser may
reasonably request in connection with any such breach. The Sub-Adviser
shall also provide the officers of the Trust with supporting certifications
in connection with such certifications of the Portfolio's financial
statements and disclosure controls pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The
Sub-Adviser, to the extent permissible, will promptly notify the Adviser if
(i) the Sub-Adviser 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 Portfolio
(excluding class action suits in which the Portfolio is a member of the
plaintiff class by reason of the Portfolio's ownership of shares in the
defendant) or the compliance by the Sub-Adviser with the federal or state
securities laws or (ii) the controlling stockholder changes or there
otherwise is an actual change in control (whether through sale of all or
substantially all the assets of the Sub-Adviser or a material change in
management of the Sub-Adviser) or an "assignment" (as defined in the ▇▇▇▇
▇▇▇) has or is proposed to occur.
(b) Inspection. Upon request, with at least 24 hours advance notice, the
Sub-Adviser, subject to privacy ---------- and other laws, agrees to make
its records and premises (including the availability of the Sub-Adviser's
employees for interviews) to the extent that they relate to the conduct of
services provided by the Sub-Adviser to the Portfolio or the Sub-Adviser's
conduct of its business as an investment adviser available for compliance
audits by the Adviser or the Portfolio's employees, accountants or counsel;
in this regard, the Trust and the Adviser acknowledge that the Sub-Adviser
shall have no obligations to make available proprietary information
unrelated to the services provided to the Portfolio or any information
related to other clients of the Sub-Adviser, except to the extent necessary
for the Adviser to confirm the absence of any conflict of interest and
compliance with any laws, rules or regulations in the management of the
Portfolio.
(c) Board and Filings Information. The Sub-Adviser will provide the Adviser
with any information reasonably ----------------------------- requested
regarding its management of the Portfolio required for any meeting of the
Board, or for any shareholder report, amended registration statement, proxy
statement, or prospectus supplement to be filed by the Trust with the
Commission. The Sub-Adviser will make its officers and employees available
to meet with the Board from time to time on reasonable notice to review the
investments of the Portfolio in light of current and prospective economic
and market conditions and shall furnish to the Board such information as
may reasonably be necessary in order for the Board to evaluate this
Agreement or any proposed amendments thereto.
(d) Transaction Information. The Sub-Adviser shall furnish to the Adviser
such information concerning portfolio transactions as may be necessary
to enable the Adviser to perform such compliance testing on the
Portfolio and the Sub-Adviser's services as the Adviser may, in its
sole discretion, determine to be appropriate. The provision of such
information by the Sub-Adviser in no way relieves the Sub-Adviser of
its own compliance responsibilities for the Portfolio, as and to the
extent herein provided.
4. Brokerage.
(a) Principal and Agency Transactions. In connection with purchases or
sales of securities for the account of the Portfolio, neither the
Sub-Adviser nor any of its directors, officers, employees or affiliated
persons will act as a principal or agent or receive any commission
except as permitted by the 1940 Act.
(b) Placement of Orders. Except as set forth in subparagraph (e) of this
Section 4, the Sub-Adviser shall ------------------- arrange for the
placing of all orders for the purchase and sale of securities for the
Portfolio's account with brokers or dealers selected by the Sub-Adviser. In
its selection of such brokers or dealers and the placing of such orders,
the Sub-Adviser is directed at all times to seek for the Portfolio the most
favorable execution and net price available under the circumstances except
as described herein. It is also understood that it is desirable for the
Trust that the Sub-Adviser have access to supplemental investment and
market research and security and economic analyses provided by brokers who
may execute brokerage transactions at a higher cost to the Portfolio than
may result when allocating brokerage to other brokers, as consistent with
Section 28(e) of the 1934 Act and any Commission staff interpretations
thereof. Therefore, the Sub-Adviser is authorized to place orders for the
purchase and sale of securities for the Portfolio with such brokers,
subject to guidelines established by the Adviser and provided in writing to
the Sub-Adviser by the Adviser or the Board from time to time with respect
to the extent and continuation of this practice. It is understood that the
services provided by such brokers may be useful to the Sub-Adviser in
connection with its or its affiliates' services to other clients. In
addition, subject to the Sub-Adviser's obligation to seek the most
favorable execution and net price available under the circumstances, the
Sub-Adviser to the extent legally permissible may consider the sale of the
Portfolio's shares in selecting brokers and dealers. The Sub-Adviser and
not the Portfolio or the Adviser shall be liable for any losses or costs
resulting from the Sub-Adviser's errors in placing trades on behalf of the
Portfolio.
(c) Aggregated Transactions. On occasions when the Sub-Adviser deems the
purchase or sale of a security to ----------------------- be in the best
interest of the Portfolio as well as other clients of the Sub-Adviser, the
Sub-Adviser may, to the extent permitted by applicable law and regulations,
aggregate the order for securities to be sold or purchased in order to
obtain the most favorable execution and lower brokerage commissions, if
any. In such event, allocation of the securities or futures contracts so
purchased or sold, as well as the expenses incurred in the transaction,
will be made by the Sub-Adviser in the manner the Sub-Adviser considers to
be the most equitable and consistent with its fiduciary obligations to the
Portfolio and to such other clients.
(d) Affiliated Brokers. The Sub-Adviser or any of its affiliates may act as
broker in connection with the ------------------ purchase or sale of
securities or other investments for the Portfolio, subject to: (a) the
requirement that the Sub-Adviser seek to obtain most favorable execution
and most favorable net price available under the circumstances within the
policy guidelines determined by the Board and set forth in the Trust's
current prospectus and SAI; (b) the provisions of the Investment Company
Act, the Advisers Act and the rules of the Commission under such Acts; (c)
the provisions of the 1934 Act; and (d) other provisions of applicable law.
These brokerage services are not within the scope of the duties of the
Sub-Adviser under this Agreement. Subject to the requirements of applicable
law and any procedures adopted by the Board, the Sub-Adviser or its
affiliates may receive brokerage commissions, fees or other remuneration
from the Portfolio for these services in addition to the Sub-Adviser's fees
for services under this Agreement.
(e) Alternative Trading Arrangements. From time to time the Sub-Adviser and the
Adviser may agree that the -------------------------------- Sub-Advisor
will place some or all of the trades for the Portfolio through the
Adviser's trading desk. In such event, the Adviser shall have complete
authority to determine the brokers or dealers through which any trade by
the Portfolio is placed through the Advisers trading desk and as to the
timing and manner of the execution of any such trade, although the
Sub-Adviser may give guidance. In such event, the Adviser shall be
responsible for obtaining most favorable execution and best net price
available under the circumstances for the Portfolio on trades placed by the
Adviser, and the Sub-Adviser shall remain responsible only for the accurate
placement of orders on behalf of the Portfolio into the Adviser's trading
system and confirming the appropriate settlement of such transactions in
accordance with the orders placed.
5. Custody. Nothing in this Agreement shall permit the Sub-Adviser to take
or receive physical possession of cash, securities or other investments
of the Portfolio.
6. Allocation of Charges and Expenses. The Sub-Adviser will bear its own
costs of providing its services hereunder. Other than as herein
specifically indicated, the Sub-Adviser shall not be responsible for
the Portfolio's or the Adviser's expenses, including brokerage and
other expenses incurred in placing orders for the purchase and sale of
securities and other investment instruments. Specifically, the
Sub-Adviser will not be responsible for expenses of the Portfolio or
the Adviser, as the case may be, including, but not limited to, the
following: (i) charges and expenses for accounting, pricing and
appraisal services and related overhead, including, to the extent such
services are performed by personnel of the Sub-Adviser or its
affiliates, office space and facilities, and personnel compensation,
training and benefits; (ii) the charges and expenses of auditors; (iii)
the charges and expenses of any custodian, transfer agent, plan agent,
dividend disbursing agent and registrar appointed by the Trust; (iv)
underwriting commissions and issue and transfer taxes chargeable to the
Portfolio in connection with securities transactions to which the
Portfolio is a party; (v) insurance premiums, interest charges, dues
and fees for membership in trade associations and all taxes and
corporate fees payable by the Portfolio to federal, state or other
governmental agencies; (vi) fees and expenses involved in registering
and maintaining registrations of the Trust's shares with federal
regulatory agencies, state or blue sky securities agencies and foreign
jurisdictions, including the preparation of prospectuses and statements
of additional information for filing with such regulatory authorities;
(vii) all expenses of shareholders' and Board meetings and of
preparing, printing and distributing prospectuses, notices, proxy
statements and all reports to shareholders and to governmental
agencies; (viii) charges and expenses of legal counsel to the Trust and
the Board; (ix) any distribution fees paid by the Portfolio in
accordance with Rule 12b-1 promulgated by the Commission pursuant to
the 1940 Act; (x) compensation and expenses of the Board; (xi) the cost
of preparing and printing share certificates; (xii) interest on
borrowed money, if any; and (xiii) any other expense that the
Portfolio, the Adviser or any other agent of the Portfolio may incur
(A) as a result of a change in the law or regulations, (B) as a result
of a mandate from the Board with associated costs of a character
generally assumed by similarly structured investment companies or (C)
that is similar to the expenses listed above, and that is approved by
the Board (including a majority of the Independent Trustees) as being
an appropriate expense of the Portfolio. The Portfolio or the Adviser,
as the case may be, shall reimburse the Sub-Adviser for any such
expenses or other expenses of the Portfolio or the Adviser, as may be
reasonably incurred by such Sub-Adviser on behalf of the Portfolio or
the Adviser. The Sub-Adviser shall keep and supply to the Trust and the
Adviser adequate records of all such expenses.
7. Representations, Warranties and Covenants of the Sub-Adviser.
(a) Properly Licensed. The Sub-Adviser is registered as an investment
adviser under the Advisers Act, and will remain so registered for the
duration of this Agreement. The Sub-Adviser agrees to promptly notify
the Adviser of the occurrence of any event that would disqualify the
Sub-Adviser from serving as an investment adviser to an investment
company. The Sub-Adviser is in compliance in all material respects with
all applicable federal and state law in connection with its investment
management operations.
(b) ADV Disclosure. The Sub-Adviser has provided the Adviser with a copy of
its Form ADV as most recently filed with the SEC and will, promptly
after filing any amendment to its Form ADV with the SEC, furnish a copy
of such amendments to the Adviser. The information contained in the
Sub-Adviser's Form ADV is accurate and complete in all material
respects and does not omit to state any material fact necessary in
order to make the statements made, in light of the circumstances under
which they were made, not misleading.
(c) Trust Disclosure Documents. The Sub-Adviser has reviewed and will in the
future review, the -------------------------- Registration Statement, and
any amendments or supplements thereto, the annual or semi-annual reports to
shareholders, other reports filed with the Commission and any marketing
material of the Portfolio (collectively the "Disclosure Documents") and
represents and warrants that with respect to disclosure about the
Sub-Adviser, the manner in which the Sub-Adviser manages the Portfolio or
information relating directly or indirectly to the Sub-Adviser, such
Disclosure Documents contain or will contain, as of the date thereof, no
untrue statement of any material fact and does not omit any statement of
material fact which was required to be stated therein or necessary to make
the statements contained therein not misleading.
(d) No Statutory Disqualification As An Investment Adviser. The Sub-Adviser
is not prohibited by the Advisers Act or the 1940 Act from performing
the services contemplated by this Agreement, and to the best knowledge
of the Sub-Adviser, there is no proceeding or investigation that is
reasonably likely to result in the Sub-Adviser being prohibited from
performing the services contemplated by this Agreement.
(e) Insurance. The Sub-Adviser shall maintain errors and omissions and fidelity
insurance equivalent in --------- coverage and amounts to the insurance
maintained on the date of the Agreement from an insurance provider that is
in the business of regularly providing insurance coverage to investment
advisers. The Sub-Adviser shall provide prior written notice to the Adviser
(i) of any material changes in its insurance policies or insurance
coverage; or (ii) if any material claims will be made on its insurance
policies. Furthermore, it shall upon request provide to the Adviser any
information it may reasonably require concerning the amount of or scope of
such insurance. The Sub-Adviser's insurance shall, at a minimum, cover
errors and omissions of the Sub-Adviser.
(f) Competent Staff. The Sub-Adviser shall ensure that in the Sub-Adviser's
reasonable judgment sufficient and competent investment management,
administrative and compliance staff experienced in managing accounts
similar to the Portfolio shall have charge at all times of the conduct
of, and shall maintain close supervision of, the investment and
management of the Portfolio. For avoidance of doubt, the Sub-Adviser
shall satisfy itself that any affiliate or third party on whom it
relies in order to perform its duties hereunder complies with the
foregoing.
(g) No Detrimental Agreement. The Sub-Adviser represents and warrants that
it has no arrangement or understanding with any party, other than the
Portfolio, that would influence the decision of the Sub-Adviser with
respect to its selection of securities for the Portfolio, and that all
selections shall be done in accordance with what is in the best
interest of the Portfolio.
(h) Conflicts. The Sub-Adviser shall act honestly, in good faith and in the
best interests of the Portfolio including requiring any of its
personnel with knowledge of the Portfolio's activities to place the
interest of the Portfolio first, ahead of their own interests, in all
personal trading scenarios that may involve a conflict of interest with
the Account.
(i) Representations. The representations and warranties in this Section 7
shall be deemed to be made on the date this Agreement is executed and
at the time of delivery of the monthly compliance report required by
Section 3(a), whether or not specifically referenced in such
certificate.
(j) Use Of The Name "Cullen". Subject to any notice provided to the Adviser
pursuant to Section 15, the Sub-Adviser represents and warrants that is
has the right to use the name "Cullen" in connection with its services
to the Trust and that there are no threatened or existing actions,
claims, litigation or proceedings that would adversely affect or
prejudice the rights of the Sub-Adviser, Adviser or Trust to use the
name "Cullen," subject to the provisions of Section 15 below.
8. Sub-Adviser's Compensation. The Adviser shall pay to the Sub-Adviser,
as compensation for the Sub-Adviser's services hereunder, a fee,
determined as described in Schedule A that is attached hereto and made
a part hereof. Such fee shall be computed daily and paid monthly in
arrears by the Adviser. The Portfolio shall have no responsibility for
any fee payable to the Sub-Adviser. In the event that the fee paid to
the Adviser for managing the Portfolio is reduced by regulatory
authorities or the Board for any reason whatsoever, the fee hereunder
shall be subject to the same percentage reduction.
The method for determining net assets of the Portfolio for purposes
hereof shall be the same as the method for determining net assets for purposes
of establishing the offering and redemption prices of Portfolio shares as
described in the Trust's prospectus. In the event of termination of this
Agreement, the fee provided in this Section shall be computed on the basis of
the period ending on the last business day on which this Agreement is in effect
subject to a pro rata adjustment based on the number of days elapsed in the
current month as a percentage of the total number of days in such month.
9. Independent Contractor. In the performance of its duties hereunder, the
Sub-Adviser is and shall be an independent contractor and, unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent the Portfolio or the Adviser in any way or
otherwise be deemed to be an agent of the Portfolio or the Adviser. If any
occasion should arise in which the Sub-Adviser gives any advice to its clients
concerning the shares of the Portfolio, the Sub-Adviser will act solely as
investment counsel for such clients and not in any way on behalf of the
Portfolio.
10. Assignment and Amendments. This Agreement shall automatically terminate,
without the payment of any penalty, in the event of (i) its assignment,
including any change in control, as defined in the 1940 Act, of the Adviser or
the Sub-Adviser, or (ii) in the event of the termination of the Management
Agreement; provided that such termination shall not relieve the Adviser or the
Sub-Adviser of any liability incurred hereunder.
This Agreement may not be added to or changed orally and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
11. Duration and Termination.
(a) This Agreement shall become effective as of the date executed
and shall remain in full force and effect continually
thereafter, subject to renewal and unless terminated
automatically as set forth in Section 12 hereof or until
terminated as follows:
(i) The Adviser may at any time terminate this Agreement as to the
Portfolio by not more than sixty (60) days' nor less than
thirty (30) days' written notice delivered or mailed by
registered mail, postage prepaid, to the Sub-Adviser. In
addition, the Trust may cause this Agreement to terminate with
respect to the Portfolio either (i) by vote of the Board or
(ii) upon the affirmative vote of a majority of the
outstanding voting securities of the Portfolio; or
(ii) The Sub-Adviser may at any time terminate this Agreement by
not more than sixty (60) days' nor less than thirty (30) days'
written notice delivered or mailed by registered mail, postage
prepaid, to the Adviser; or
(iii)This Agreement shall automatically terminate on December 31st of any year,
beginning on December 31, 2005, in which its terms and renewal shall not
have been approved by (A) (i) a majority vote of the Board or (ii) the
affirmative vote of a majority of the outstanding voting securities of the
Portfolio; provided, however, that if the continuance of this Agreement is
submitted to the shareholders of the Portfolio for their approval and such
shareholders fail to approve such continuance of this Agreement as provided
herein, the Sub-Adviser may continue to serve hereunder as to the Portfolio
in a manner consistent with the 1940 Act and the rules and regulations
thereunder; and (B) a majority vote of the Trustees who are not "interested
persons" (as set forth in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission under the 1940 Act or any
interpretations of the staff of the Commission) of the Trust, the Adviser
or the Sub-Adviser, at a meeting called for the purpose of voting on such
approval.
(b) For the purposes of this Agreement, "Affirmative vote of a
majority of the outstanding voting securities of the
Portfolio" shall have the meaning set forth in the 1940 Act,
subject, however, to such interpretations of the staff of the
Commission.
Termination of this Agreement pursuant to this Section shall be without
payment of any penalty.
In the event of termination of this Agreement for any reason, the
Sub-Adviser shall, immediately upon notice of termination or on such later date
as may be specified in such notice, cease all activity on behalf of the
Portfolio and with respect to any of its assets. In addition, the Sub-Adviser
shall deliver the Trust's Books and Records to the Adviser (it being agreed that
the Sub-Adviser may keep copies of the Portfolios Books and Records) by such
means and in accordance with such schedule as the Adviser shall reasonably
direct and shall otherwise reasonably cooperate in the transition of portfolio
asset management to any successor of the Sub-Adviser, including the Adviser, for
a period up to thirty-days (30) from such termination.
12. Liability of the Sub-Adviser. The Sub-Adviser shall not be liable to the
Adviser or Adviser Indemnitees (as defined below) for any losses, claims,
damages, liabilities or litigation (including legal and other expenses) incurred
or suffered by an Adviser Indemnitee as a result of any error of judgment or
mistake of law by the Sub-Adviser with respect to the Portfolio, except that
nothing in this Agreement shall operate or purport to operate in any way to
exculpate, waive or limit the liability of the Sub-Adviser for, and the
Sub-Adviser shall indemnify and hold harmless the Adviser, the Trust and all
affiliated persons thereof (within the meaning of Section 2(a)(3) of the ▇▇▇▇
▇▇▇) and all controlling persons (as described in Section 15 of the 1933 Act)
(collectively, the "Adviser Indemnitees") against any and all losses, claims,
damages, liabilities or litigation (including reasonable legal and other
expenses) by reason of or arising out of: (a) the Sub-Adviser being in violation
of any applicable federal or state law, rule or regulation or any investment
policy or restriction set forth in the Trust's Registration Statement or any
written guidelines or instruction provided in writing by the Board or the
Adviser unless acting at the direction of the Adviser or the Board, (b) the
Portfolio's failure to satisfy the diversification or source of income
requirements of Subchapter M Subchapter L of the Code by reason of any action or
omission of the Sub-Adviser, unless acting at the direction of the Adviser or
the Board, (c) the Sub-Adviser's willful misfeasance, bad faith or gross
negligence generally in the performance of its duties hereunder or its reckless
disregard of its obligations and duties under this Agreement provided that the
Sub-Adviser's obligation in this regard shall be reduced to the extent it is
caused by or is otherwise directly related to the Portfolio's or the Adviser's
own willful malfeasance, bad faith or gross negligence or to the reckless
disregard of its duties under this Agreement, or (d) the Portfolio being in
violation of any applicable federal or state law, rule or regulation or any
investment policy or restriction set forth in the Trust's Registration Statement
or any written guidelines or instruction provided in writing by the Board or the
Adviser, by reason of any action or omission of the Sub-Adviser unless acting at
the direction of the Board or the Adviser.
13. Limitation of Liability. The parties to this Agreement acknowledge and agree
that no Trustee, officer or holder of shares of beneficial interests of the
Trust shall be liable for any litigation arising hereunder, whether direct or
indirect. The Trust's Certificate of Trust, as amended from time to time, is on
file in the Office of the Secretary of State of the State of Delaware. Such
Certificate of Trust and the Trust's Agreement and Declaration of Trust describe
in detail the respective responsibilities and limitations on liability of the
Trustees, officers, and holders of shares of beneficial interest.
14. Non-Exclusivity. The services provided by the Sub-Adviser are not to be
deemed exclusive except as otherwise mutually agreed upon in writing, from time
to time by the parties hereto, and the Sub-Adviser shall be free to render
similar services to others so long as such services do not impair the services
rendered to the Adviser or the Portfolio.
15. Name of the Portfolio. The parties agree that the Portfolio may use the name
"Cullen" and any logos or service marks that the Sub-Adviser may furnish to the
Portfolio (collectively, the "Identifying Marks") only so long as (i) this
Agreement remains in effect and (ii) the Sub-Adviser has the right to use such
Identifying Marks. Any use of the Identifying Marks pursuant to this Section 15
shall be royalty free. Upon termination of this Agreement, the Portfolio
promptly shall discontinue the use of the Identifying Marks. Upon notification
from the Sub-Adviser to the Portfolio that the Sub-Adviser ceases to have the
right to use an Identifying ▇▇▇▇, the Portfolio promptly shall discontinue the
use of such Identifying ▇▇▇▇. The Portfolio acknowledges that (i) it has no
proprietary or exclusive rights in the Identifying marks and (ii) the
Sub-Adviser reserves to itself the right to grant the nonexclusive right to use
any Identifying Marks to other persons (including other investment companies),
subject to the Sub-Adviser's right with respect to such Identifying Marks.
16. Jurisdiction. This Agreement shall be governed by and construed in
accordance with the substantive laws of The Commonwealth of Massachusetts and
the Sub-Adviser consents to the jurisdiction of courts, both state or federal,
in Boston, Massachusetts, with respect to any dispute under this Agreement.
17. Paragraph Headings. The headings of paragraphs contained in this Agreement
are provided for convenience only. They form no part of this Agreement and shall
not affect its construction.
18. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
19. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, such provision will be fully severable, and this
Agreement will be enforced and construed as if such provision had never
comprised a part of this Agreement. To the extent required, any provision of
this Agreement may be modified by a court of competent jurisdiction to preserve
its validity
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be signed on their behalf by their duly authorized officers as of the date first
above written.
PIONEER INVESTMENT MANAGEMENT, INC.
By:__/s/▇▇▇▇ Goodwin________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior VP, Chief Financial Officer, Treasurer
CULLEN CAPITAL MANAGEMENT, LLC
By:___/s/ Brooks H. Cullen________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP
SCHEDULE A
The Adviser will pay to the Sub-Adviser as compensation for the Sub-Adviser's
services rendered, a fee, computed daily and payable at the end of each month at
an annual rate based on the average daily net assets of the Portfolio under the
following fee schedule:
Assets Rate
------ ----
First $1 Billion 0.35%
Greater than $1 Billion and less than or equal to $2 Billion 0.325%
Greater than $2 Billion and less than or equal to $3 Billion 0.30%
Greater than $3 Billion 0.275%