Re: Sub-Advisory Agreement for Xxxxx Series, Inc.
This is to confirm that Xxxxx Selected Advisers, L.P. (the "Adviser") is
retaining Xxxxx Selected Advisers - NY, Inc. ("DSA-NY") as investment
sub-adviser for the portfolios of Xxxxx Series, Inc. (the "Fund").
The terms and conditions of your retention are as follows:
1. DS-NY shall act as an investment sub-adviser for Fund and will provide such
investment management and research services as the Adviser shall request
subject to the general supervision of the Board of Directors of the Fund,
Xxxxx Selected Advisers, L.P. (the Adviser") and to any applicable
provisions as in effect form time to time of (a) the Article of
Incorporation and Bylaws of the Fund, (b) the prospectus, statement of
additional information and other information set in the Fund's registration
documents under the Securities Act of 1933 and the Investment Company Act
of 1940 ("1940 Act"), including any supplements thereto, (c) the Investment
Advisory Agreement between the Adviser and the Fund (the "Investment
Advisory Agreement"), the Adviser's and the Fund's Code of Ethics and (d)
any additional policies or guidelines established by the Fund's Board of
Directors of the Adviser. DSA-NY acknowledges receipt of copies of the
above documents as in effect on the date of acceptance of this letter. The
Adviser agrees that it will promptly deliver to DSA-NY any amendments,
changes or additions of or to these documents.
2. DSA-NY agrees that all securities transactions will conform to (a) the
stated objectives and policies of the policies of the Fund, (b) the
brokerage policies set forth in the Investment Advisory Agreement (which
are hereby incorporated by reference herein) and the registration
documents, and (c) those investment and brokerage policies or guidelines
directed by the Board of Directors of the Fund, any committee thereof and
the Adviser.
3. DSA-NY shall be an independent contractor. Unless otherwise expressly
provided or authorized hereunder, or by the Board of Directors of the Fund,
DSA-NY shall have no authority to represent the Fund or the Adviser in any
way or otherwise be an agent of the Adviser or the Fund, except with regard
to the execution of securities transactions on behalf of the Fund with
registered broker/dealers, including broker/dealer affiliated with the
Adviser, provided transactions with affiliated broker/dealers comply with
Rule 17e-1 of the 1940 Act.
4. DSA-NY shall provide the Adviser with any reports, analyses or other
documentation the Adviser requests including those related to placement of
security transactions, its administrative responsibilities and its
responsibility to monitor compliance with state investment objectives,
policies and limitations and the investment performance of the Fund. DSA-NY
agrees, directly or through an agent, to provide daily information in
respect to any portfolio transactions of the Fund to the Adviser. DSA-NY
agrees to provide all documentation reasonably required by the Adviser to
maintain the Fund's accounting records in accordance with the 1940 Act and
the Investment Advisers Act of 1940 and the regulations issued thereunder,
and to preserve copies of all documents and records related to asset
transactions, positions and valuations related to the Fund in the manner
and for the periods prescribed by such regulations. DSA-NY further agrees
that all documents and records is maintain relating to the Fund, are the
property of the Fund and will be surrendered to the Adviser or the Fund
upon the request of either. DSA-NY agrees to provide information and to
allow inspection of such documents and records as reasonable times by any
authorized representative of the Adviser, the Fund's Board of Directors or
any committee thereof, the Fund's independent public accountants or
appropriate regulatory authorities. DSA-NY shall provide to the Adviser a
copy if its Form ADV as filed the SEC and as amended from the time and a
written list of persons DSA-NY has authorized to give written and/or oral
instructions to the Adviser and the Fund custodian.
5. DSA-NY agrees to make its personnel who are engaged in activities on behalf
of the Fund available at reasonable times for consultations with the
Adviser's personnel and the Fund's Board of Directors or
any committee thereof, including attendance at their meetings whoever
situated. In addition, personnel of DSA-NY at the request of the Adviser,
will attend other meetings to be scheduled at mutually convenient times.
6. DSA-NY agrees to provide all office facilities, equipment and personnel
needed for carrying out its duties hereunder at its own expense. In
addition, DSA-NY shall, if requested by the Adviser or the Fund, employ at
its own expense and subject to the prior written approval of the Adviser
which approval shall not be unreasonably withheld (i) a public auditing
firm, (ii) attorneys and (iii) such other professional staff as in the sole
discretion of the Adviser are necessary to assure the fulfillment of the
terms and conditions of this agreement.
7. It is agreed that DSA-NY's services are not to be deemed exclusive and
DSA-NY shall be free to render similar services or other services to others
provided that (i) its services hereunder are not impaired and are not in
violation of federal or state securities laws and (ii) that it shall not
provide services to any registered investment company other that the Fund
or other investment companies managed by the Adviser without the Adviser's
prior express written permission.
8. In the absence of willful misfeasance, bad faith, gross negligence or
reckless disregard of its obligations or duties hereunder, DSA-NY, its
officers, directors and employees shall not be subject to liability for any
act or omission the cause of, or connected with, rendering services
hereunder or for any losses that may be sustained in the purchase, holding
or sale of any security. In the event of any claim, arbitration, suit, or
administrative proceedings in which DSA-NY or the Adviser is a party and
which it is finally determined that there is liability or wrongdoing by
only one of us, the party liable or found to be the wrongdoer shall pay for
all liability and expenses of such claim or proceeding including reasonable
attorneys' fees. If it is determined that there is liability or wrongdoing
by both or none of us, then each shall pay their own liability and
expenses. In the event of any settlement of any such claim, arbitration,
suit or proceeding before final determination by a court or arbitrator(s),
the liability and expenses shall be assumed as agreed between the parties,
but if there is no agreement within thirty (30) days of such settlement,
then the assumption of liability and expenses shall be settled by
arbitration, in accordance with the then applicable rules of the American
Arbitration Association. Judgement upon the award rendered by the
arbitrator shall be final and binding and may be entered in any court
having jurisdiction. The parties shall pay for their own costs and expenses
in respect to any such arbitration and such costs may be included in the
arbitrator's award.
9. As investment sub-adviser, DSA-NY understands that is will be responsible
for complying with all provisions of applicable law, including the 1940
Act, the Investment Advisers Act of 1940, and the Xxxxxxx Xxxxxxx and
Securities Fraud Enforcement Act of 1988 and all rules and regulations
thereunder. DSA-NY agrees to adopt and comply with the "Code of Ethics of
and for Xxxxx Selected Advisers, L.P. and the Companies For Which It Acts
As Investment Adviser" as in effect from time to time and to keep in effect
a policy and supervisory procedures designed to prevent xxxxxxx xxxxxxx.
10. The parties acknowledge that DSA-NY is controlled by or under common
control with the Adviser. The Adviser shall pay DSA-NY all reasonable
direct and indirect costs associated with the maintenance of an office and
the performance of the terms of this Agreement. The Advisers shall also
reimburse expressly approved for reimbursement by the Adviser. Payment for
DSA-NY's services and reimbursement of expenses approved by the Adviser
shall be made monthly, in arrears, by the 15th day of each following month.
11. This Agreement shall become effective on the later December 1, 1996 or the
first business day after the date this Agreement is approved in accordance
with the 1940 Act (provided that is reflected in an effective
post-effective amendment under the Securities Act of 1933 and the 1940
Act). Unless sooner terminated as hereunder provided, it shall initially
remain in effect for a period not exceeding two years. Thereafter, subject
to the termination provisions herein, this Agreement shall continue in
force from year to year thereafter, but only as long as such continuance is
specifically approved at least
annually in the manner required by the 1940 Act; provided, however, that if
the continuation of this Agreement is not approved, DSA-NY may continue to
serve in the manner and to the extent permitted by the 1940 Act and the
rules and regulations thereunder.
12. This Agreement shall automatically terminate immediately in the event
assignment (except as otherwise permitted by the 1940 Act of rules
thereunder) or in the event of the termination of the Investment Advisory
Agreement. This Agreement may be terminated without payment of any penalty
at any time (a) upon sixty (60) days' written notice to DSA-NY by the
Adviser or upon such sixty (60) days' written notice to DSA-NY by the Fund
pursuant to action by its Board of Directors or by the vote of a majority
of the outstanding voting securities of the Fund, or (b) upon sixty (60)
days' written notice by DSA-NY to the Adviser. The terms "assignment" and
"vote of a majority of the outstanding voting securities" shall have the
meaning set forth in the 1940 Act and the rules and regulations thereunder.
Termination of this Agreement shall not effect DSA-NY's right to receive
payments on any unpaid balance of the compensation earned and reimbursable
expenses incurred prior to such termination. Upon receipt of notification
of termination as provided above DSA-NY shall immediately cease all
activities in connection with the Fund except as otherwise directed by the
Adviser.
13. DSA-NY agrees that is shall abide by the terms of the agreement of the
Adviser with the Fund as to the names of the Fund and the Adviser and shall
not use the name of the Adviser or the Fund without the prior written
consent of the Adviser or the Fund.
14. If any provisions of the Agreement shall be held or made invalid by the
court decision, statute or rule or rule or otherwise, the remainder shall
not be thereby affected.
15. This Agreement shall be construed according to the laws of the State of New
Mexico. It may be executed in counterparts each of which shall be deemed an
original and all of which together shall constitute one and the same
agreement.
If the foregoing terms and conditions are acceptable to you, please acknowledge
in the space provided. Upon your acceptance, the retention and the mutual
obligations in respect thereto shall effective as provided herein.
Sincerely,
Xxxxx Selected Advisers, L.P.
By Venture Advisers, L.P.
General Partner
By:_______________________
Its:______________________
Accepted and approved this 1st day of December, 1996
Xxxxx Selected Advisers - NY, Inc.
