Exhibit 5(d)
SUB-INVESTMENT ADVISORY AGREEMENT
between
GUARDIAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMITED, incorporated under the Companies Acts and
having its Registered Office at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (hereinafter
called "the Company") OF THE ONE PART
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OVERSEAS LIMITED, a company incorporated under the Companies
Acts and having its Registered Office at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(hereinafter called "the Manager") OF THE OTHER PART
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WHEREAS:
(A) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Fund, Inc. (hereinafter called the
"Client") is engaged in business as an open-end management investment company
and is registered as such under the U.S. Investment Company Act of 1940, as
amended.
(B) The Client is authorised to issue shares of common stock in one or
more series, the shares of which will represent and correspond to interests in
one or more separate portfolios of securities and other assets held by the
Client.
(C) The Company is engaged principally in the business of rendering
investment management services and is registered as an investment adviser under
the U.S. Investment Advisers Act of 1940, as amended, and is a member of, and
regulated in the conduct of its investment business by, the Investment
Management Regulatory Organisation Limited.
(D) The Manager is engaged principally in the business of rendering
investment management services and is registered as an investment adviser under
the U.S. Investment Advisers Act of 1940, as amended, and is a member of, and
regulated in the conduct of its investment business by, the Investment
Management Regulatory Organisation Limited.
(E) The Client desires the Company to render investment management
services to the Client and to those of its Series which are named in written Fee
Appendices as described herein in the manner set forth and in the terms and
conditions set forth in a separate Investment Management Agreement of even date
herewith.
(F) The Company, in turn, desires the Manager to render sub-investment
management services to the Client and to those of its Series which are named in
written Fee Appendices as described herein in the manner and on the terms and
conditions hereinafter set forth.
IT IS HEREBY AGREED AND DECLARED as follows:
1. Definitions
1.1 In this Agreement the following words and expressions
shall where not inconsistent with the context have the following
meanings respectively:
(a) "Articles" means the Articles of Association of the
Company as amended from time to time;
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(b) "Associate" means and includes any corporation which
in relation to the person concerned (being a corporation) is a
Holding Company or a Subsidiary or a Subsidiary of any such
Holding Company or a corporation (or a Subsidiary of a
corporation) at least one-third of the issued share capital of
which is beneficially owned by the person concerned or an
Associate thereof under the preceding part of this definition
and includes any firm the partners of which or any one or more
of them are beneficially entitled whether directly or
indirectly or through the medium of a corporation or
corporations to at least three-quarters of the issued equity
share capital of the person concerned (being a corporation)
and includes any partner in any such firm. Where the person
concerned is an individual, firm or other unincorporated body
the expression "Associate" means and includes any corporation
directly or indirectly or through the medium of a corporation
or corporations controlled by such person and any partner in
any such firm;
(c) "Business Day" means a day on which the New York
Stock Exchange is open for business;
(d) "Commencement Date" means 12 September 1994 or, if
later, the date on which a copy of this Agreement signed by or
on behalf of the Manager has been signed by or on behalf of
the Company and returned to the Manager;
(e) "Custodian" means State Street Bank & Trust Company,
Boston, Massachusetts, U.S.A. and its agents and sub-custodian
banks or such other bank or banks as may in the future serve
as custodian of the Investments;
(f) "Directors" means the Board of Directors of the
Company from time to time including any duly appointed
committee thereof;
(g) "Fee Appendix" means the Sub-Investment Advisory Fee
Appendix entered into by the Manager and the Company which
sets forth the compensation to be paid by the Company to the
Manager for services rendered hereunder with respect to any
Series. Each Fee Appendix shall be subject to the terms and
conditions of this agreement;
(h) "Holding Company" means a holding company as defined
in Section 736 of the Companies ▇▇▇ ▇▇▇▇;
(i) "IMRO" means Investment Management Regulatory
Organisation Limited;
(j) "Investments" means the assets and rights from time
to time of each Series comprised in the Portfolio of such
Series;
(k) "Investment Policy" means the investment objective,
policies and restrictions of a Series which are set out in the
current Registration Statement on Form N-1A as filed on behalf
of the Client with the SEC and as amended from time to time
following written notice given by the Company to the Manager;
(l) "Investment Management Agreement" means the
investment advisory agreement between the Company and the
Client of even date herewith.
(m) "Portfolio" means the investments and cash which may
from time to time comprise the assets of a Series which are
the subject of the Investment Management Agreement;
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(n) "Rules" means the rules (including any regulations)
made by the board of IMRO, as altered, amended, added to or
cancelled from time to time whether by the board of IMRO or
pursuant to the Financial Services ▇▇▇ ▇▇▇▇, together with the
Statutory Rules;
(o) "SEC" means the U.S. Securities and Exchange
Commission;
(p) "Series" means a separate portfolio of assets of the
Client which has been named in a written Fee Appendix;
(q) "Statutory Rules" means rules or regulations made
under Chapter V of the Financial Services ▇▇▇ ▇▇▇▇ which are
binding on the Manager;
(r) "Subsidiary" means a subsidiary as defined in
Section 736 of the Companies ▇▇▇ ▇▇▇▇;
(s) "U.S." means the United States of America;
(t) "1940 Act" means the U.S. Investment Company Act of
1940, as amended;
(u) any reference to the Company, Client, a Series or
the Manager includes a reference to its duly authorised agents
or delegates;
(v) words importing the singular number shall be deemed
to include the plural number and vice versa;
(w) words importing the masculine gender only shall
include the feminine gender and vice versa;
(x) words importing persons shall include companies or
associations or bodies of persons, whether corporate or not;
and
(y) any reference to this Agreement shall be deemed to
be a reference to this Agreement as it may from time to time
be supplemented by a Fee Appendix.
1.2 Words and expressions contained in this Agreement (but not
defined herein) shall bear the same meanings as in the Articles.
1.3 The headings to the Clauses of this Agreement are for
convenience only and shall not affect the construction or
interpretation thereof.
1.4 References herein to statutory provisions shall be
construed as references to those provisions as respectively amended
or re-enacted from time to time and shall include any provision of
which they are reenactments (whether with or without modification).
2. Appointment
2.1 The Company HEREBY APPOINTS the Manager as Sub-Investment
Manager in relation to the Portfolio of each Series and the Manager
accepts such appointment on the terms and conditions of this
Agreement.
2.2 The appointment of the Manager as Sub-Investment Manager
as aforesaid shall take effect from the Commencement Date, and shall
continue in full force and effect with respect to each Series,
provided it is initially and continually approved in accordance with
the 1940 Act, and unless and until terminated in accordance with the
provisions hereof.
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3. Investment Management Functions of the Manager
3.1 During the continuance of its appointment as
Sub-Investment Manager of the Company, subject to Clause 3.2 below
and without prejudice to the generality of Clause 2.1 above the
Manager shall (subject to the overall supervision of the Directors):
(a) manage the investment and re-investment of the
Portfolio of each Series on a discretionary basis with a view
to achieving the investment objective contained in the
Investment Policy;
(b) provide valuations of the Investments in accordance
with the provisions of Clause 11;
(c) as and when requested by the Company and/or the
Client supply the Company and/or the Client with such
information in connection with the Portfolio of each Series as
may be in the possession of the Manager or may reasonably be
obtained from or provided by them;
3.2 Any investment activity undertaken by the Manager pursuant
to this Agreement and any other activities undertaken by the Manager
on behalf of the Company or the Client or any Series shall at all
times be subject to any written directives of the Directors or of
the Board of Trustees of the Client, as the case may be, any duly
constituted committee of such Board, or any officer of the Company
or of the Client acting pursuant to the written directives of its
respective Board.
3.3 The Manager shall keep or cause to be kept on behalf of
each Series such books, records and statements to give a complete
record of all transactions carried out by the Manager on behalf of
each Series in relation to the investment and reinvestment of the
Portfolio of such Series and such other books, records and
statements as may be required by law and as may be necessary to give
a complete record of all other transactions carried out by the
Manager on behalf of each Series and shall permit the Company and
its employees and agents and the auditors for the time being of the
Company and/or the Client and each Series to inspect such books,
records and statements at all reasonable times.
3.4 All records required to be maintained and preserved by the
Manager on behalf of each Series or the Portfolio of such Series
pursuant to the provisions of rules or regulations of the SEC under
Section 31(a) of the 1940 Act are the property of the Client and
will be surrendered by the Manager promptly on request by the
Client.
3.5 The Manager hereby warrants that it holds and undertakes
that it will continue to hold, all licences, permissions,
authorisations and consents necessary to enable it to carry out its
duties hereunder in the ordinary course of business and that all
such licences, permissions, authorisations and consents are and will
remain in full force and effect during the continuance of this
Agreement.
3.6 The services to be provided under this Agreement shall be
so provided on the basis that the Company and the Client are
"Non-Private Customers" as defined in the Rules.
4. Manager's Specific Powers and Obligations in Relation to Investment
Management
4.1 Consistent with the Investment Policy and subject to any
written directions (in accordance with Clause 3.2 above)
communicated to the Manager, the Manager shall have and is hereby
granted the authority, power and right for the Portfolio of each
Series and in the name of the Client and each Series
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to supervise and direct the investments of each Series in its
discretion and without prior consultation with the Client or the
Company:
(a) to issue orders and instructions with respect to the
disposition of Investments, moneys and other assets of the
Portfolio of each Series;
(b) to purchase (or otherwise acquire), sell (or
otherwise dispose of) and invest in investments, moneys and
other assets for the account of each Series and effect foreign
exchange transactions on behalf of each Series and for the
account of each Series in connection with any such purchase,
other acquisition, sale or other disposal;
(c) to enter into, make and perform all contracts,
agreements and other undertakings as may in the opinion of the
Manager be necessary or advisable or incidental to the
carrying out of the objectives of this Agreement;
(d) subject to the Rules, to aggregate transactions for
the Portfolio of each Series with those of other clients and
Associates without prior reference to the Company, the Client
or any Series or such other clients. Aggregation may operate
on some occasions to the advantage of a Series and on other
occasions to the disadvantage of a Series. Also the Manager
may act as agent for the Client and each Series in relation to
transactions in which it is also acting as agent for its
Associates;
(e) to purchase and sell Investments on any Recognised
or Designated Investment Exchange as defined in the Rules
(including for this purpose over the counter markets) or
through such other intermediary as the Manager may in its
discretion consider;
(f) to purchase or subscribe for Investments Not Readily
Realisable (as defined in the Rules). However such investments
carry a high risk of not being readily realisable,
market-makers may not be prepared to deal in them and proper
information for determining their current value may not be
available. The purchase of such investments is subject to such
restrictions as may be set out in this Agreement not
inconsistent with the Investment Policy;
(g) to accept offers of new issues, or rights issues and
offers of paper and/or cash alternatives in takeover bids on
behalf of each Series;
(h) to invest in Contingent Liability Transactions and
Options effected otherwise than under the rules of a
Recognised or Designated Investment Exchange (as defined in
the Rules) or in a contract traded thereon;
(i) for the purposes of carrying out transactions in
futures and options only, to deposit or pledge investments
comprised in the Portfolio of each Series and such other
documents of title and certificates evidencing title to such
investments and other property as may be required in order to
satisfy the counterparty's margin or collateral requirements.
In all other circumstances and except (a) with the written
consent of and on terms agreed with the Company and the Client
or (b) if appropriate, as may be provided in the Client's
current Registration Statement filed with the SEC (as amended
from time to time) investments comprised in the Portfolio of a
Series and documents of title and certificates evidencing
title to such investments and other property
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acquired under this Agreement may not be lent to a third party
nor may money be borrowed on the Client's or a Series' behalf
against the security of such investments, documents and
property.
4.2 As Investments maybe denominated in different currencies,
a movement of exchange rates may have a separate effect,
unfavourable as well as favourable, on the gain or loss otherwise
experienced in the Investments.
4.3 The Company understands, and has informed the Manager that
the Client understands, that markets involving Contingent Liability
Transactions can be highly volatile and that such instruments carry
a high risk of loss and that a relatively small adverse market
movement may result not only in loss of the original investment but
also an unquantifiable further loss exceeding any margin deposited.
The Company further understands, and has informed the Manager that
the Client understands, that the Client may be required to pay on
behalf of a Series a deposit or margin in support of a transaction
or to supplement that payment after the transaction has been
effected and that the consequence of non-payment may result in the
loss of deposit or margin.
4.4 The Company confirms to the Manager that the Client has
received from the Company the appropriate risk disclosure statements
required under paragraph 12(a) of Schedule 4 of Chapter III of the
Rules.
4.5 The Manager shall observe and comply with all resolutions
of the Directors of which it has written notice and other lawful
orders and directions given in writing to it from time to time by
the Directors including those orders and directions emanating from
the Client and all activities engaged in by the Manager hereunder
pursuant to Clause 3 above shall at all times be subject to the
control of and review by the Directors, acting on behalf of the
Client, and without limiting the generality of the foregoing the
Directors may from time to time:
(a) prohibit the Manager from investing the Portfolio of
any Series in any investment or in any currency or country or
in or with any person;
(b) require the Manager to sell any investment or
(subject to the availability of funds) to purchase, on behalf
of a Series, any investment;
(c) notify the Manager, in writing, of any amendments to
the Investment Policy of any Series;
and the Manager shall and shall procure that any person,
firm or company to whom it delegates any of its functions
hereunder shall give effect to all such decisions.
5. Payments Due on Investments
The Company undertakes to the Manager that it shall be
responsible for any unpaid calls or other sums which may become
payable upon any of the Investments or any rates, taxes or other
imposts or similar liabilities levied or arising on or in respect of
any of the Investments but only to the extent that the Client, on
behalf of a Series, has failed to pay same.
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6. Cold Calls
The Company and the Manager are free under this Agreement at
any time to telephone or otherwise communicate with each other
(which in the case of the Manager, its directors, employees or
representatives, may constitute a "Cold Call" in terms of IMRO's
Rules) to discuss the Portfolio of any Series, its composition and
investment policy or any changes therein, or any individual
investment, current or proposed.
7. Custody Arrangements
7.1 The Company will at the written request of the Manager
arrange with the Client, on behalf of a Series, for the opening of
bank accounts in the name of each Series with the Custodian. All
sums belonging to a Series including proceeds of sales and income
received on investments shall be credited directly to such accounts.
The Manager will hold no moneys on behalf of a Series, and accepts
no liability for any default by the Custodian. These bank accounts
and moneys are not Client Bank Accounts or Clients' Money (as
defined in the Rules).
7.2 Securities forming part of the Portfolio of each Series
will be registered in the name of the Custodian or held to its
order. The Manager accepts no liability for any default by the
Custodian or sub-custodian banks.
8. Settlement
The Manager will attend to the settlement and delivery of all
purchases and sales of Investments and deal with issues, rights
entitlements and any other matters affecting such investments. The
Manager will also be entitled to instruct the Custodian to make
delivery of documents of title or certificates evidencing title when
settling transactions.
9. Voting
Any rights conferred by Investments of a Series shall be
exercised in such manner as the Manager may determine (subject to
the rights of the Directors to give instruction to the Manager
regarding the exercise of such rights) and subject as aforesaid the
Manager may in its discretion refrain from the exercise of such
rights. The Company shall from time to time, upon request from the
Manager, procure that the Client, on behalf of each Series, shall
execute and deliver or cause to be executed and delivered to the
Manager or its nominee(s) such powers of attorney or proxies as may
reasonably be required authorising such attorneys or proxies to
exercise any rights or otherwise act in respect of all or any part
of the Investments. Without prejudice to the generality of the
foregoing the Manager will be entitled to give voting instructions
to the Custodian in respect of the exercise of any voting or other
rights attached to any Investment at the discretion of the Manager
or as the Company and/or the Client may instruct from time to time.
10. Lending and Borrowing
10.1 Subject to the Investment Policy of a Series and as
provided in this Clause 10, investments comprised in the Portfolio
of a Series and documents of title and certificates evidencing title
to such
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investments and other property acquired under this Agreement may not
be lent to a third party nor may money be borrowed on the Client's
or a Series' behalf against the security of such investments,
documents and property.
10.2 Subject to the Investment Policy of a Series, an
overdraft facility or line of credit may be established on behalf of
each Series and may be used as a temporary measure for the
extraordinary or emergency needs of each Series.
10.3 Subject to the Investment Policy of a Series and to the
temporary borrowing facility provided for in 10.2 above, the Manager
may not commit the Client or a Series to supplement the monies in
the Portfolio of a Series either by borrowing on its behalf or by
committing it to a contract the performance of which may require
them to supplement the Portfolio of such Series.
11. Reporting
11.1 The Manager shall arrange to notify the Company and the
Client (by fax) of transactions in each Series on a daily basis and
will instruct brokers to send the original contract note to the
Custodian and copies to the Company and the Client.
11.2 The Manager shall supply quarterly, on a Series by Series
basis, to the Company and the Client the following:
(a) reports incorporating inter alia investment policy,
which will be sent within twenty-five working days of the end
of the quarter to which the report relates;
(b) a Portfolio valuation prepared by Datastream or some
other mutually agreed and reputable supplier of valuation
services. Such valuations will show the number of units of
each investment or other asset held, the book cost and the
aggregate value of each as at the valuation date and will
normally use middle market prices for listed investments. In
the event of any change in this method the Manager will notify
the Company and the Client accordingly;
(c) a statement of any income received on the
investments held;
(d) a schedule detailing the performance of each Series
broken down into major sectors and comparing the return of the
relevant index against the return of each Series. The returns
will be compiled by the WM Company using information supplied
by the Manager; and
(e) schedules showing transactions undertaken during the
period under review.
11.3 The Manager shall attend meetings with the Company and/or
the Client from time to time as required by the Directors.
Instructions as to the management of the Portfolio of a Series given
orally to the Manager at such meetings will be confirmed in writing
to the Manager as provided for in Clause 23.
12. Material Interests
12.1 Except as specified in Clause 4.1(d) of this Agreement,
the Manager may not effect transactions for the Portfolio of a
Series in which it has directly or indirectly a material interest or
any relationship with another party which may involve a conflict of
the Manager's duty to the Company and/or the
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Client or any Series without prior reference to the Company, other
than transactions in units in unit trusts managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Limited, an Associate of the Manager, in accordance with the
provisions of sub-clause 12.2 of this Agreement.
12.2 For the purposes of sub-clause 12.1 of this Agreement,
the Manager may not effect transactions for the Portfolio of a
Series in units in unit trusts managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Limited unless the Manager shall first have been issued with an
order of exemption by the SEC in accordance with sub-section
17(a)(1)(b) of the 1940 Act.
13. Relevant Arrangements
The Manager may not effect transactions for the Portfolio of a
Series with or through the agency of a person who provides services
under any arrangement where that person will from time to time
provide to or procure for the Manager services or other benefits
which result, or are designed to result, in an improvement in the
services which the Manager provides to its clients and for which it
may make no direct payment but may undertake to place business with
that person.
14. Taxation
Bank statements and vouchers will be sent by the Custodian to
the Client to enable the Client, on behalf of each Series, to
reclaim any credits in respect of or tax deducted from the income of
the Portfolio of such Series.
15. Fees
In consideration for the services to be provided by the
Manager as Sub-Investment Manager under this Agreement the Company
shall, during the continuance of this Agreement, pay to the Manager,
fees calculated by reference to the value of the Portfolio of each
Series all in accordance with the provisions set forth in the
applicable Fee Appendix. All such Fee Appendices shall provide that
they are subject to all terms and conditions of this Sub-Investment
Advisory Agreement.
Compensation under this Agreement and the related Fee
Appendices for all Series shall be calculated and accrued daily and
the amounts of the daily accruals shall be paid quarterly, or at
such other intervals agreed to by the parties. If this Agreement
becomes effective with respect to a Series subsequent to the first
day of a quarter or shall terminate before the last day of a
quarter, compensation for that part of the quarter during which this
Agreement is in effect shall be prorated in a manner consistent with
the calculation of the fees as set forth in the applicable Fee
Appendix.
16. Indemnity
16.1 Neither the Manager nor any of its officers, directors,
or employees, nor any person performing executive, administrative,
trading, or other functions for the Client or any Series and/or the
Company (at the direction or request of the Manager) or the Manager
in connection with the Manager's discharge of its obligations
undertaken or reasonably assumed with respect to this Agreement,
shall be liable for any error of judgment or mistake of law or for
any loss suffered by the Client or any Series and/or the Company in
connection with the matters to which this Agreement relates, except
for loss resulting from wilful
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misfeasance or misconduct, wilful default, bad faith, or gross
negligence in the performance of its or his/her duties on behalf of
the Client or any Series and/or the Company or from reckless
disregard by the Manager or any such person of the duties of the
Manager under this Agreement.
16.2 The Manager shall not be liable for the consequences of
any investment decision made hereunder or in respect of any other
fund managed by the Manager or any of its Associates which is a
permitted investment hereunder. The Manager acts only as agent for
the Client and each Series and the Company hereby undertakes to
indemnify the Manager against all actions, proceedings, claims,
demands, costs and expenses which may be brought against, suffered
or incurred by the Manager by reason of its performance of such
duties, including all legal, professional and other expenses
incurred.
16.3 Notwithstanding the provisions of Clause 16.2, the
Manager will indemnify the Company and/or the Client and each Series
in respect of any loss incurred as a result of negligence or fraud
by the Manager or any of its Associates or their respective
employees in their performance of the duties under the terms of this
Agreement.
17. Term and Termination of Agreement
17.1 The term of this Agreement shall begin on 12 September
1994, provided that, with respect to any Series, this Agreement
shall not take effect unless it has first been approved by the Board
of Trustees of the Client, including a majority of the Trustees who
are not "interested persons" (as defined in the ▇▇▇▇ ▇▇▇) and by a
majority of the outstanding voting securities of that Series (as
defined in the ▇▇▇▇ ▇▇▇) and, unless sooner terminated as
hereinafter provided, this Agreement shall remain in effect until 1
January 1996. Thereafter, this Agreement shall continue in effect
from year to year, with respect to the Company and each Series,
subject to the termination provisions and all other terms and
conditions hereof, provided such continuance is approved at least
annually by the vote of holders of a majority of the outstanding
voting securities of each Series (as defined in the ▇▇▇▇ ▇▇▇) or by
the Board of Trustees of the Client, provided, that in either event,
such continuance is also approved annually by the vote of a majority
of the Board of Trustees of the Client who are not parties to this
Agreement and are not "interested persons" (as defined in the ▇▇▇▇
▇▇▇) of any party, which vote must be cast in person at a meeting
called for the purpose of voting on such approval. The Manager shall
furnish to the Client, on behalf of each Series, promptly upon its
request, such information as may reasonably be necessary to evaluate
the terms of this Agreement or any extension, renewal or amendment
hereof.
17.2 The Manager acknowledges that this Agreement may be
terminated by the Company in accordance with the following
provisions of this Clause 17.2. Subject to Clause 17.3 below, the
Client may, with respect to a Series, either by majority vote of its
Board of Trustees or by the vote of a majority of the outstanding
voting securities of such Series (as defined in the 1940 Act), at
any time and without the payment of any penalty, direct the Company
to terminate this Agreement upon sixty days written notice to the
Manager.
17.3 The Manager acknowledges that this Agreement may also be
terminated in accordance with the following provisions of this
Clause 17.3. The Client shall also be entitled forthwith to direct
the Company to terminate the appointment of the Manager as
Sub-Investment Manager hereunder, with respect to a Series,
notwithstanding any period remaining in accordance with this Clause
or, no notice having been given:
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(i) if the Manager shall commit any material breach of
its obligations under this Agreement and (if such breach shall
be capable of remedy) shall fail within thirty days of receipt
of notice in writing served by the Company requiring it so to
do to make good such breach;
(ii) if an order is made or a resolution passed to wind
up the Manager or if a receiver is appointed to the whole or
any part of the property and undertaking of the Manager;
(iii) if the Shareholders Agreement dated 7 November
1990 between the Guardian Insurance & Annuity Company, Inc.,
the Manager and the Company is terminated or expires by
effluxion of time.
17.4 The Manager may terminate this Agreement with respect to
a Series without payment of penalty upon sixty days written notice
to the Company.
17.5 The Manager shall also be entitled to terminate forthwith
this Agreement with respect to a Series, notwithstanding any period
remaining in accordance with this Clause or, no notice having been
given, if (i) the said Shareholders Agreement between The Guardian
Insurance & Annuity Company, Inc. and the Manager and the Company is
terminated or expires by effluxion of time, or (ii) an order is made
or a resolution passed to wind up the Company, or (iii) if the
Company shall commit any material breach of its obligations under
this Agreement and (if such breach shall be capable of remedy) shall
fail within 30 days of receipt of notice in writing served by the
Manager requiring it so to do to make good such breach, or (iv) a
receiver is appointed to the whole or any part of the property and
undertaking of the Company.
17.6 Termination of this Agreement as detailed in this Clause
with respect to any Series shall in no way affect the continued
validity of this Agreement or the performance thereunder with
respect to any other Series.
17.7 This Agreement shall immediately terminate in the event
of its assignation or assignment (as that term is defined in the
1940 Act) by either party unless such automatic termination shall be
prevented by an exemptive order or rule of the SEC.
17.8 On the termination of the appointment of the Manager
under the provisions of this Clause the Manager shall be entitled to
receive all fees accrued due and outlays incurred up to the date of
such termination but shall not in the case of termination under
sub-clause 17.2, 17.3 or 17.4 above, be entitled to compensation in
respect of such termination.
17.9 On termination of the appointment of the Manager under
the provisions of this Clause the Manager shall deliver to the
Company, or as it shall direct, all books of account, records,
registers, correspondence, documents and assets in relation to the
affairs of or belonging to the Company and/or the Client or any
Series in the possession of or under the control of the Manager as
sub-investment manager, and take all necessary steps to vest in the
Company any assets previously held in the name of or to the order of
the Manager as sub-investment manager, on behalf of the Company.
17.10 Termination of the appointment of the Manager hereunder
shall be without prejudice to transactions already initiated, which
transactions shall be completed.
17.11 The Company and the Manager will co-operate with each
other to ensure that transactions in progress at the date of
termination of the Manager's appointment hereunder shall be
completed by the Company in accordance with the terms of such
transactions and, to this end, the Manager shall provide the Company
with all necessary information and documentation to secure
implementation thereof.
11
18. Non-Exclusivity
18.1 The services of the Manager hereunder are not to be
deemed exclusive and the Manager or any Associate thereof shall be
free to render investment management services, investment advisory
services and corporate administrative services to other parties
(including without prejudice to the generality of the foregoing
other investment companies) on such terms as the Manager or such
Associate may arrange so long as its services under this Agreement
are not thereby impaired and to retain for its own use and benefit
fees or other moneys payable thereby. The Manager shall not be
deemed to be affected with notice of or to be under any duty to
disclose to the Company any fact or thing which may come to the
notice of it or any servant or agent of it in the course of the
Manager rendering the said services to others or in the course of
its business in any other capacity or in any manner whatsoever
otherwise than in the course of carrying out its duties under this
Agreement.
18.2 The Manager agrees to permit individuals who are
directors or officers of the Manager to serve as directors or
officers of the Company and/or the Client.
19. Confidentiality
Neither of the parties hereto shall during the continuance of
this Agreement or after its termination, disclose to any person,
firm or fund whatsoever (except in the case of the Manager, with the
written authority of the Company and/or the Client or unless ordered
to do so by a court of competent jurisdiction or any regulatory
body) any information of a confidential nature relating to the
business investments finances or other matters of a confidential
nature of the other party (or of the Client or any Series) of which
it may have become possessed during the period of this Agreement and
each party shall use its reasonable endeavours to prevent any such
disclosure as aforesaid.
20. Complaints
20.1 The Manager has established procedures in accordance with
the requirements of IMRO for the effective consideration of
complaints by the Company.
20.2 Should the Company and/or the Client wish to make a
complaint to the Manager about any aspect of the Manager carrying
out its duties under this Agreement or otherwise it shall in the
first instance do so by letter addressed to the director or
directors of the Manager responsible for the performance of the
Manager's duties hereunder; if no satisfactory resolution of the
complaint is achieved within five days the Company and/or the Client
may repeat the complaint by letter addressed to the Chairman of the
Manager. If no satisfactory resolution is achieved within ten days
of the original complaint the Company and/or the Client may then
make its complaint (insofar as such complaint relates to the
Manager's duties as sub-investment manager hereunder) to IMRO.
Notwithstanding the above provisions the Company and/or the Client
has a right of complaint direct to IMRO.
20.3 A booklet setting out the right to investors compensation
under the Securities and Investments Board's Scheme in the event of
the Manager's inability to meet any liabilities to the Company
and/or the Client is available on request from the Manager.
12
21. Arbitration
Without prejudice to the rights of the Company in accordance
with Clause 20 hereof any matters of difference between the parties
arising out of or in connection with this Agreement shall be
submitted to arbitration to be determined under Scottish Law before
a sole Arbiter to be agreed between the parties and in default of
agreement to be appointed by the President of the Law Society of
Scotland for the time being. No action shall be brought upon by any
issue between the parties arising out of or in connection with this
Agreement until the same has been submitted to arbitration pursuant
hereto and an award made. Section 3(3) of the Administration of
Justice (Scotland) Act 1972 shall not apply to this Agreement.
22. Amendments
This Agreement may be amended by mutual consent, but no
amendment shall be effective as to any given Series until it is
approved by vote of a majority of such Series' outstanding voting
securities, and by the vote of a majority of the members of the
Board of Trustees of the Client, including a majority of the
Trustees who are not deemed to be "interested persons" (as defined
in the 1940 Act).
Notwithstanding the foregoing, where the effect of a
requirement of the 1940 Act which is reflected in any provision of
this Agreement is relaxed by a rule, regulation or order of the SEC,
whether of special or general application, such provision shall he
deemed to incorporate the effect of such rule, regulation or order.
23. Notices
Any notice required to be given under this Agreement shall be
in writing, delivered personally or sent by first class prepaid
letter or transmitted by telex or facsimile and shall be deemed duly
served if left at or sent or (as appropriate) transmitted to the
following addresses (or to the most recent of any other address of
which a party hereto shall have given notice to the other party
pursuant to this Clause):
(a) if to the Company at:
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
For the attention of: ▇. ▇▇▇▇▇▇▇
Facsimile number: 031-222-4099
(b) if to the Manager at:
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇
For the attention of: ▇. ▇▇▇▇▇▇▇
Facsimile number: 031-222-4099
(c) if to the Client at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
For the attention of: ▇.▇. ▇▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
13
Notices sent by first class prepaid letter shall be deemed to
be served seven business days after posting. Evidence that the
Notice was properly addressed, stamped and put into post shall be
conclusive evidence of posting. A notice sent by facsimile
transmission shall be deemed to have been served at the time when a
complete and legible copy is received by the addressee. In this
Clause "business day" means a day on which normal banking business
is carried on in Edinburgh and New York City.
24. Reliance on documents
Wherever pursuant to any provision of this Agreement any
notice, instruction or other communication is to be given by, or on
behalf of, the Company (or its Directors) to the Manager as
sub-investment manager and the Manager may accept as sufficient
evidence thereof:
(i) a document signed or purporting to be signed on
behalf of the issuing party by such person or persons whose
signature the Manager is for the time being authorized by such
issuing party to accept; or
(ii) a message by tested telex, telecopier, facsimile
machine or cable transmitted by, or on behalf of, the Company
(or its Directors) by such person or persons whose messages
the Manager is for the time being authorized by the Company or
its Directors to accept, and the Manager shall not be obliged
to accept any document or message signed or transmitted or
purporting to be signed or transmitted by any other person.
25. Client's Rights Under this Agreement
The Manager agrees that the Client, in any question with the
Manager in relation to its duties as sub-investment manager
hereunder, may rely on any of the provisions of this Agreement as if
it were a party hereto. The Company shall deliver a certified copy
of this Agreement to the Client by way of intimation of the Client's
rights hereunder.
26. Invalidity
The invalidity or unenforceability of any part of this
Agreement shall not prejudice or affect the validity or
enforceability of the remainder.
27. Proper Law
Notwithstanding any conflict of laws, principles or provisions
which may otherwise apply, this Agreement and the rights and
obligations of the parties shall be governed by and are to be
construed in accordance with the law of Scotland and, to the extent
applicable, in accordance with the 1940 Act: IN WITNESS WHEREOF
these presents typewritten on this and the 13 preceding pages are
executed as follows: they are subscribed for and on behalf of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Overseas Limited by ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, one
of its Directors, at Edinburgh, Scotland on 12 September, 1994
before these witnesses, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, of ▇ ▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇
and they are subscribed for
14
and on behalf of Guardian ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited by ▇▇▇▇ ▇. ▇▇▇▇▇,
one of its Directors at New York, United States of America on 12
September, 1994 before these witnesses, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ both of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇.
For Guardian ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Limited:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Witness
--------------------------
For ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Overseas Limited:
/s/ [ILLEGIBLE]? Witness /s/ Gavin ▇.▇. ▇▇▇▇▇▇▇
-------------------------- ------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Witness
--------------------------
15
SUB-INVESTMENT ADVISORY AGREEMENT FEE APPENDIX
Fee Appendix made as of September 12, 1994, between GUARDIAN ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LIMITED (the "Company"), a company incorporated under the Companies Act
and registered as an investment adviser under the U.S. Investment Advisers Act
of 1940, as amended ("Adviser's Act") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OVERSEAS LIMITED (the
"Manager"), a company incorporated under the Companies Act and registered under
the Adviser's Act.
WHEREAS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International Fund, Inc., a Maryland corporation
(the "Client") has appointed the Company as investment adviser and administrator
for each series of shares of beneficial interest of the Client for which it may
enter into an Investment Advisory Fee Agreement pursuant to the Investment
Advisory Agreement dated September 12, 1994 between the Client and the Company
("Investment Advisory Agreement"); and
WHEREAS the Company has appointed the Manager as sub-investment adviser
for each series of shares of beneficial interest of the Client for which it may
enter into a Fee Appendix to the Sub-Investment Advisory Agreement dated
September 12, 1994 between the Company and the Manager ("Sub-Investment Advisory
Agreement"); and
WHEREAS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Emerging Markets Fund (the "Series") has been
established as a series of shares of the Client;
NOW, THEREFORE, the parties agree as follows:
1. The Sub-Investment Advisory Agreement is hereby adopted for the Series.
The Series shall be one of the "Series" referred to in the Sub-Investment
Advisory Agreement. Certain capitalized terms used without definition in this
Fee Appendix have the meaning specified in the Sub-Investment Advisory
Agreement.
2. For the services provided and the expenses assumed pursuant to the
Sub-Investment Advisory Agreement, the Company will pay to the Manager a fee
(exclusive of Value Added Tax), computed daily and paid quarterly (or at such
other intervals as the parties may from time to time agree), at the monthly rate
of one twenty-fourth of one percent of:
A where:
---
B
"A" means the aggregate of the Values of the Portfolio as at the close of
business on each Business Day falling in that quarter; and
"B" means the number of Business Days falling in that quarter.
3. Said fees due to the Manager shall be invoiced by the Manager to the
Company following the end of each quarter and shall be due and payable within
ten days of the relevant invoice. The Company shall be entitled to make such
payments on account as it may in its absolute discretion determine.
4. For the purposes of paragraph 2 above:
(i) the "Value of the Portfolio" means the aggregate of the values
of the assets of the Portfolio of the Series at the close of business on a
Business Day. The aggregate of the values of the assets shall be calculated by
taking the value of securities held in the Portfolio of the Series, plus any
cash or other assets (including dividends payable and declared but not
collected) less all liabilities (including accrued expenses, but excluding
capital and surplus);
(ii) the "value of an asset" shall be taken:
(1) in the case of an investment quoted on a Stock Exchange
where market price is the recognised basis of quotation,
at the price of such investment at the close of business
of the appropriate exchange on the relevant Valuation
Date or, if there have been no sales during the day, at
the mean of the closing bid and asked prices;
(2) in the case of an investment traded only on the
over-the-counter market, at the mean between the bid and
asked prices;
(3) in the case of unquoted investments and other
investments for which market quotations are not readily
available, at the value ascertained in accordance with
such manner as the Board of Directors of the Client have
deemed appropriate to reflect the fair value thereof;
(iii) when any asset is held or liability is outstanding in a
currency other than U.S. dollars, such asset or liability shall be notionally
converted into the U.S. dollar equivalents at the prevailing market rates quoted
by the Custodian at the close of business on the Business Day, on the relevant
Valuation Date or, if such Valuation Date is not a Business Day, on the
immediately preceding Business Day.
5. The Company shall procure that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. shall be
responsible for furnishing such office space, facilities and equipment and such
clerical help, administrative and bookkeeping services in Edinburgh as the
Series shall reasonably require in the conduct of its business in accordance
with the Administrative and Secretarial Agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
and the Company.
6. This Fee Appendix shall be subject to all terms and conditions of the
Sub-Investment Advisory Agreement.
7. This Fee Appendix shall become effective upon the date hereabove
written, provided that it shall not take effect unless it has first been
approved (i) by a vote of the Board of Directors of the Client, including a
majority of those Directors of the Client who are not parties to this Fee
Appendix or the Sub- Investment Advisory Agreement or interested persons of any
such persons at a meeting called for the purpose of such approval and (ii) by
vote of a majority of the Series' outstanding voting securities.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated as of the 12th day of September, 1994.
FOR GUARDIAN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LIMITED:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Witness /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- --------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Witness
--------------------------
FOR ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ OVERSEAS LIMITED:
/s/ [ILLEGIBLE] Witness /s/ Gavin ▇.▇. ▇▇▇▇▇▇▇
-------------------------- ------------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Witness
--------------------------
