EXHIBIT (d)(v)
FORM OF SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (the "Agreement") made this 30th day of April,
2004, by and between XXXXXXXXX GLOBAL INVESTORS (NORTH AMERICA) INC. (the
"Adviser") and XXXXXXX XXXXX ASSET MANAGEMENT L.P. (the "Subadviser"), which
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one
instrument.
WHEREAS, the Adviser wishes to enter into a contract with the
Subadviser to render to the Adviser the following services:
Provide research, analysis, advice and recommendations with respect to
the purchase and sale of securities, and make investments regarding assets of
each separate series of the Xxxxxxxxx Global Funds (the "Trust") set forth on
Schedule A hereto (each a "Portfolio"), subject to oversight by the Board of
Trustees of the Trust and the supervision of the Adviser.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and intending to be bound, the parties agree as follows:
1. Compensation. As compensation for the services enumerated herein,
the Adviser will pay the Subadviser a fee, which shall be calculated monthly and
payable monthly, as set forth in Schedule A hereto.
In the event that the Adviser wishes to engage the Subadviser to render
services enumerated herein to one or more other portfolios of the Trust, it
shall notify the Subadviser in writing. If the Subadviser is willing to render
such services and agrees upon the subadvisory fee rates to be payable by the
Adviser, the Subadviser shall notify the Adviser in writing, whereupon such
portfolio or portfolios shall become a Portfolio or Portfolios hereunder and
Schedule A hereto shall be amended.
If this Agreement shall become effective subsequent to the first day of
a month, or shall terminate before the last day of a month, the Subadviser's
compensation for such fraction of the month shall be determined by applying the
fees set forth in Schedule A to the average daily net asset value of the
Portfolio Segment (as defined in Section 4) during such fraction of a month and
in the proportion that such fraction of a month bears to the entire month.
2. Effective Date; Authority of Adviser and Subadviser. This Agreement
shall become effective as of the date first above written subject to the
approval of the Board of Trustees of the Trust and shareholder of the Portfolio
in accordance with the provisions of the Investment Company Act of 1940 (the
"1940 Act"). The Adviser will promptly advise the Subadviser as to the giving of
such approval. The Adviser represents that it is the investment adviser of the
Portfolio, with the authority as such to enter into this Agreement. The
Subadviser represents that it has the authority to enter into this Agreement.
3. Term; Termination. This Agreement shall become effective with
respect to the Portfolio on the date hereof and shall remain in full force until
August 30, 2005 unless sooner
terminated as hereinafter provided. This Agreement shall continue in force from
year to year thereafter with respect to any Portfolio to which the Agreement
shall have become applicable, but only so long as such continuance is
specifically approved for such Portfolio at least annually in the manner
required by the 1940 Act, and the rules and regulations thereunder; provided,
however, that if the continuation of this Agreement is not approved for a
Portfolio, the Subadviser may continue to serve in such capacity for such
Portfolio in the manner and to the extent permitted by the 1940 Act and the
rules and regulations thereunder.
This Agreement may be terminated at any time without the payment of any
penalty, by the Adviser, or by the Subadviser, or by the Board of Trustees or by
vote of a majority of the outstanding voting securities of the Portfolio on
sixty (60) days written notice.
This Agreement shall automatically terminate in the event of its
assignment or (upon notice thereof to the Subadviser) the assignment of the
Investment Advisory Agreement between the Trust and the Adviser, unless the
continuation of this Agreement thereafter is approved by the Board of Trustees
of the Trust and the shareholders of the Portfolio as required by the 1940 Act.
The terms "assignment" and "vote of a majority of the outstanding
voting securities" shall have the meanings set forth in the 1940 Act and the
rules and regulations thereunder.
4. Services. Subject to the supervision of the Board of Trustees of the
Trust and the Adviser, the Subadviser will provide an investment program for
such portion of the assets of each Portfolio as Adviser shall from time to time
designate (each a "Portfolio Segment"), including investment research and
management with respect to securities and investments, including cash and cash
equivalents in the Portfolio Segment, and will determine from time to time what
securities and other investments will be purchased, retained or sold by the
Portfolio Segment. The Subadviser will provide the services under this Agreement
in accordance with the Portfolio's investment objective, policies and
restrictions as stated in the Prospectus (as used herein this term includes the
related Statement of Additional Information). The Subadviser further agrees that
it:
(a) will conform with all applicable Rules and Regulations of the
Securities and Exchange Commission and will, in addition, conduct its activities
under this Agreement in accordance with regulations of any other Federal or
State agencies which now have or in the future will have jurisdiction over its
activities;
(b) will pay expenses incurred by it in connection with its activities
under this Agreement other than the cost of securities and other investments
(including brokerage commissions and other transaction changes, if any)
purchased for the Portfolio Segment, provided that the Subadviser will not pay
for or provide a credit with respect to any research provided to it in
accordance with Section 4(c);
(c) will place orders pursuant to its investment determinations for the
Portfolio Segment either directly with any broker or dealer, or with the issuer.
In placing orders with brokers or dealers, the Subadviser will attempt to obtain
the best overall price and the most favorable execution of its orders, except as
provided below. In no instance will securities be
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purchased from or sold to the Subadviser or any affiliated person of the
Subadviser as principal. Notwithstanding the foregoing sentence, the Subadviser
may arrange for the execution of brokered transactions through an affiliated
broker dealer in conformity with policies and procedures for such purpose if,
when, and as established by the Trustees of the Trust. Subject to policies
established by the Board of Trustees of the Trust and communicated to the
Subadviser, it is understood that the Subadviser will not be deemed to have
acted unlawfully, or to have breached a fiduciary duty to the Trust or in
respect of the Portfolio, or be in breach of any obligation owing to the Adviser
or the Trust or in respect of the Portfolio under this Agreement, or otherwise,
solely by reason of its having caused the Portfolio to pay an unaffiliated
broker or a dealer a commission for effecting a securities transaction for the
Portfolio in excess of the amount of commission another member of an exchange,
broker or dealer would have charged if the Subadviser determines in good faith
that the commission paid was reasonable in relation to the brokerage or research
services provided by such member, broker or dealer, viewed in terms of that
particular transaction or the Subadviser's overall responsibilities with respect
to the accounts, including the Portfolio Segment, as to which it exercises
investment discretion;
(d) will provide the Funds' custodian on each business day with
information relating to all transactions concerning the Portfolio's assets and
shall provide the Adviser with such information upon request of the Adviser, and
review the daily valuation of securities owned by the Portfolio Segment as
obtained on a daily basis by the Trust's administrator and furnished by it to
Subadviser, and will promptly notify the Trust and the Adviser if the Subadviser
believes that any such valuation may not properly reflect the market value of
any securities owned by the Portfolio Segment;
(e) will attend regular business and investment-related meetings with
the Trust's Board of Trustees and the Adviser if requested to do so by the Trust
and/or the Adviser;
(f) maintain books and records with respect to the securities
transactions for the Portfolio Segment, furnish to the Adviser and the Trust's
Board of Trustees such periodic and special reports as they may request with
respect to the Portfolio Segment, and provide in advance to the Adviser all of
the Subadviser's reports to the Trust's Board of Trustees for examination and
review within a reasonable time prior to the Trust's Board meetings;
(g) maintain adequate compliance procedures to ensure its compliance
with the 1940 Act, the Investment Advisers Act of 1940 ("Advisers Act") and
other applicable state and federal regulations and provide annual certifications
regarding its compliance program and such reports as the Adviser or the Board
shall reasonably request from time to time;
(h) will keep the Adviser, for itself and on behalf of the Trust,
informed of developments materially affecting the Portfolio or the Portfolio
Segment and shall, on the Subadviser's own initiative and as reasonably
requested by the Adviser, for itself and on behalf of the Trust, furnish to the
Adviser from time to time whatever information the Adviser reasonably believes
appropriate for this purpose; and
(i) will immediately forward upon receipt, to the Adviser, for itself
and as agent for the Trust any correspondence from the Securities and Exchange
Commission ("SEC") or other regulatory authority that relates to a Portfolio or
the Portfolio Segment and the
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Subadviser's response thereto and agrees that it will immediately notify the
Adviser and the Trust in the event that the Subadviser: (a) becomes subject to a
statutory disqualification that prevents the Subadviser from serving as an
investment subadviser pursuant to this Agreement; or (b) is or expected to
become the subject of an administrative proceeding or enforcement action by the
SEC or other regulatory authority.
(j) will promptly notify the Adviser of any financial condition that is
likely to impair the Subadviser's ability to fulfill its commitment under this
Agreement.
(k) will review all proxy solicitation materials and be responsible for
voting and handling all proxies in relation to the securities held in a
Portfolio pursuant to written procedures and policies adopted by the Subadviser
subject to the supervision and direction of the Board of the Trust. The
Subadviser shall provide to the Adviser its complete proxy voting record on
behalf of the Portfolio in connection with Rule 30b1-4 under the 1940 Act. The
Adviser shall instruct the custodian and other parties providing services to the
Fund to promptly forward misdirected proxies to the Subadviser.
5. Confidentiality. Subadviser agrees with respect to the services
provided to the Portfolio Segment that it:
(a) will provide the Adviser with trade information and broker confirms
upon request; and
(b) will treat confidentially and as proprietary information of the
Trust all records and other information relative to the Portfolio Segment and
its prior, present or potential shareholders, and will not use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder (except after prior notification to and approval in writing by
the Trust, which approval may not be unreasonably withheld where Subadviser is
advised by counsel that the Subadviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Trust).
6. Records. In compliance with the requirements of Rule 31a-3 under the
1940 Act, Subadviser acknowledges that all records which it maintains for the
Trust are the property of the Trust and agrees to surrender promptly to the
Trust any of such records upon the Trust's request, provided, that Subadviser
may retain copies thereof at its own expense. Subadviser further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records
required to be maintained by Rule 31a-1 under the 1940 Act relating to
transactions placed by Subadviser for the Portfolio.
7. Exclusivity. During the period of this Agreement, the Subadviser
agrees that, without the prior written consent of the Adviser, it will neither
provide investment advisory services directly or indirectly, nor offer for
distribution advised by Subadviser, to broker-dealer firms (or any affiliates of
any such broker-dealer firms) a similar large cap growth product that requires
wholesaler or other support before such broker-dealer firm or affiliate will
sell or offer such services and/or products. During the period of this Agreement
the Adviser agrees that it will not work with any
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other large cap growth manager within the Xxxxxxxxx Global Funds without the
prior written consent of the Subadviser.
8. Information to be Furnished to Subadviser. The Adviser agrees that
it will furnish currently to the Subadviser all information with reference to
the Portfolio and the Trust that is reasonably necessary to permit the
Subadviser to carry out its responsibilities under this Agreement, and the
parties agree that they will from time to time consult and make appropriate
arrangements as to specific information that is required under this paragraph
and the frequency and manner with which it shall be supplied. Without limiting
the generality of the foregoing, Adviser will furnish to Subadviser procedures
consistent with the Trust's contract with the Portfolio's custodian from time to
time (the "Custodian"), and reasonably satisfactory to Subadviser, for
consummation of portfolio transactions for the Portfolio Segment by payment to
or delivery by the Custodian of all cash and/or securities or other investments
due to or from the Portfolio Segment, and Subadviser shall not have possession
or custody thereof or any responsibility or liability with respect to such
custody. Upon giving proper instructions to the Custodian, Subadviser shall have
no responsibility or liability with respect to custodial arrangements or the
acts, omissions or other conduct of the Custodian.
9. Use of Names.
(a) The Subadviser acknowledges and agrees that the names "Xxxxxxxxx",
"Xxxxxxxxx Global Funds", "Xxxxxxxxx Global Investors", and abbreviations or
logos associated with those names, are the valuable property of the Adviser and
its affiliates; that the Trust, the Adviser and their affiliates have the right
to use such names, abbreviations and logos; and that the Subadviser shall use
the names Xxxxxxxxx Global Funds and Xxxxxxxxx Global Investors, and associated
abbreviations and logos, only in connection with the Subadviser's performance of
its duties hereunder. Further, in any communication with the public and in any
marketing communications of any sort, the Subadviser agrees to obtain prior
written approval from the Adviser before using or referring to Xxxxxxxxx Global
Funds, and Xxxxxxxxx Global Investors, or the Trust or any abbreviations or
logos associated with those names; provided that nothing herein shall be deemed
to prohibit the Subadviser from referring to the performance of the Portfolio in
the Subadviser's marketing material as long as such marketing material does not
constitute "sales literature" or "advertising" for the Trust, as those terms are
used in the rules, regulations and guidelines of the SEC and the National
Association of Securities Dealers, Inc.
(b) The Adviser acknowledges that "___________" and "_________" and
abbreviations or logos associated with those names are valuable property of the
Subadviser and are distinctive in connection with investment advisory and
related services provided by the Subadviser, the "_____________" name is a
property right of the Subadviser, and the "____________" name is understood to
be used by the Trust upon the conditions hereinafter set forth; provided that
the Trust may use such names only so long as the Subadviser shall be retained as
the investment subadviser of the Trust pursuant to the terms of this Agreement.
(c) The Subadviser acknowledges that each Fund and its agents may use
the "__________" name in connection with accurately describing the activities of
the Trust, including use with marketing and other promotional and informational
material relating to the Trust with the prior written approval always of the
Subadviser. In the event that the Subadviser
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shall cease to be the investment subadviser of a Fund, then the Fund at its own
or the Adviser's expense, upon the Subadviser's written request: (i) shall cease
to use the Subadviser's name for any commercial purpose; and (ii) shall use its
best efforts to cause the Fund's officers and trustees to take any and all
actions which may be necessary or desirable to effect the foregoing and to
reconvey to the Subadviser all rights which a Fund may have to such name. The
Adviser agrees to take any and all reasonable actions as may be necessary or
desirable to effect the foregoing and Subadviser agrees to allow the Funds and
their agents a reasonable time to effectuate the foregoing.
(d) The Subadviser hereby agrees and consents to the use of the
Subadviser's name upon the foregoing terms and conditions.
10. Indemnification. The Subadviser agrees to indemnify and hold
harmless the Adviser, the Trust and affiliated person of either the Adviser or
the Trust within the meaning of Section 2(a)(3) of the 1940 Act ("affiliated
person"), against any and all losses, claims, damages, liabilities or litigation
(including reasonable legal and other expenses), to which the Adviser, the Trust
or such affiliated person or controlling person may become subject under the
1933 Act, the 1940 Act, the Advisers Act, under any other statute, at common law
or otherwise, arising out of Subadviser's responsibilities as subadviser of the
Funds to the extent of and as a result of (i) the willful misconduct, bad faith,
or gross negligence of the Subadviser, any of the Subadviser's employees or
representatives or any affiliate of or any person acting on behalf of the
Subadviser; or (ii) a breach by the Subadviser of a material provision of this
Agreement; provided, however, that in no case is the Subadviser's indemnity in
favor of the Adviser, the Trust or affiliated person of either the Adviser or
the Trust deemed to protect such person against any liability to which any such
person would otherwise be subject by reason of willful misconduct, bad faith or
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
The Adviser agrees to indemnify and hold harmless the Subadviser, any
affiliated person of the Subadviser against any and all losses, claims, damages,
liabilities or litigation (including reasonable legal and other expenses), to
which the Subadviser or such affiliated person may become subject under the 1933
Act, the 1940 Act, the Advisers Act, under any other statute, at common law or
otherwise, arising out of the Adviser's responsibilities as investment adviser
of the Funds to the extent of and as a result of (i) the willful misconduct, bad
faith, or gross negligence of the Adviser, any of the Adviser's employees or
representatives or any affiliate of or any person acting on behalf of the
Adviser; or (ii) a breach by the Adviser of a material provision of this
Agreement; provided, however, that in no case is the Adviser's indemnity in
favor of the Subadviser or any affiliated person of the Subadviser deemed to
protect such person against any liability to which any such person would
otherwise be subject by reason of willful misconduct, bad faith or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
11. Limitation of Liability of the Trust, its Trustees, and
Shareholders. It is understood and expressly stipulated that none of the
trustees, officers, agents, or shareholders of any series of the Trust shall be
personally liable hereunder. It is understood and acknowledged that all persons
dealing with any series of the Trust must look solely to the property of such
series for the enforcement of any claims against that series as neither the
trustees, officers, agents
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or shareholders assume any personal liability for obligations entered into on
behalf of any series of the Trust. No series of the Trust shall be liable for
the obligations or liabilities of any other series of the Trust.
12. Severability; Applicable Law. If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of the Agreement shall not be affected thereby. Except to the
extent governed by federal law including the 1940 Act, this Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Illinois, without applying the principles of conflicts of law thereunder.
13. Amendment. As to each Portfolio of the Trust, this Agreement may be
amended only by an instrument in writing signed by the party against which
enforcement of the amendment is sought. An amendment of this Agreement affecting
a Portfolio hereunder shall not be effective until approved by (i) vote of the
holders of a majority of the outstanding voting securities of the Portfolio; and
(ii) a majority of those Trustees of the Trust who are not parties to this
Agreement or "interested persons" (as defined in the 0000 Xxx) of any party to
this Agreement, cast in person at a meeting called for the purpose of voting on
such approval unless otherwise permitted under the 1940 Act.
14. Notice. Any notice to be given hereunder may be given by personal
notification or by facsimile transmission, to the party specified at the address
stated below:
To the Adviser at: Xxxxx X. Xxxxxx, Senior Legal
Counsel and Corporate Secretary
000 X. Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
To the Subadviser at:
To the Portfolio or the Trust at: Xxxxx X. Xxxxxx
Secretary
000 X. Xxxxxxxx Xxx.
Xxxxx 0000
Xxxxxxx, XX 00000
or addressed as such party may from time to time designate by notice to other
parties in accordance herewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers as of the day and year first above
written.
ATTEST: XXXXXXXXX GLOBAL INVESTORS
(NORTH AMERICA) INC.
_____________________________ By: _____________________________
ATTEST: XXXXXXX XXXXX ASSET
MANAGEMENT L.P.
_____________________________ By: _____________________________
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SCHEDULE A
HENDERSON U.S. CORE GROWTH FUND
Adviser will pay to Subadviser a monthly fee at an annual rate of the
average net assets of the Portfolio Segment as set forth below.
0.85% for the first $50 million;
0.65% for the next $100 million; and
0.50 % for the balance thereafter.
B-1
