SUBADVISORY AGREEMENT
Agreement made as of the ____ day of _____, 20__ by and between RiverSource
Investments, LLC, a Minnesota limited liability company ("Investment Manager"),
and _________________, a _______________________ [corporation/limited
partnership/limited liability company] ("Subadviser").
WHEREAS, the Fund listed in Schedule A is a series of an investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
WHEREAS, Investment Manager entered into an Investment Management Services
Agreement (the "Advisory Agreement") with the Fund pursuant to which Investment
Manager provides investment advisory services to the Fund.
WHEREAS, Investment Manager and the Fund each desire to retain Subadviser
to provide investment advisory services to the Fund, and Subadviser is willing
to render such investment advisory services.
WHEREAS, the services provided on behalf of Subadviser pursuant to this
Agreement to be effective on ___________, 20___.
NOW, THEREFORE, the parties, intending to be legally bound, agree as follows:
1. Subadviser's Duties.
(a) Portfolio Management. Subject to supervision by Investment Manager and
the Fund's Board of Directors/Trustees (the "Board"), Subadviser shall
manage the investment operations and the composition of that portion
of assets of the Fund which is allocated to Subadviser from time to
time by Investment Manager (which portion may include any or all of
the Fund's assets), including the purchase, retention, and disposition
thereof, in accordance with the Fund's investment objectives,
policies, and restrictions, and subject to the following
understandings:
(i) Investment Decisions. Subadviser shall determine from time to
time what investments and securities will be purchased,
retained, or sold with respect to that portion of the Fund
allocated to it by Investment Manager, and what portion of such
assets will be invested or held uninvested as cash. Subadviser
is prohibited from consulting with any other subadviser of the
Fund concerning transactions of the Fund in securities or other
assets, other than for purposes of complying with the conditions
of Rule 12d3-1(a) or (b) of the 1940 Act. Subadviser will not be
responsible for voting proxies issued by companies held in the
Fund although Investment Manager may consult with Subadviser
from time to time regarding the voting of proxies of securities
owned by the Fund. Subadviser will not be responsible for filing
claims in class action settlements related to securities
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currently or previously held by that portion of the Fund
allocated to it by Investment Manager.
(ii) Investment Limits. In the performance of its duties and
obligations under this Agreement, Subadviser shall act in
conformity with applicable limits and requirements, as amended
from time to time, as set forth in the (a) Fund's Prospectus and
Statement of Additional Information ("SAI"); (b) instructions
and directions of Investment Manager and of the Board; and (c)
requirements of the 1940 Act, the Internal Revenue Code of 1986,
as amended (the "Code"), as applicable to the Fund, and all
other applicable federal and state laws and regulations.
Investment Manager agrees to give Subadviser written notice if
Investment Manager believes any recommendations, advice or
investments to be in violation of (a), (b) or (c) above.
(iii) Portfolio Transactions.
(A) Trading. With respect to the securities and other
investments to be purchased or sold for the Fund, Subadviser
shall place orders with or through such persons, brokers,
dealers, or futures commission merchants (including, but not
limited to, broker-dealers that are affiliated with
Investment Manager or Subadviser) selected by Subadviser;
provided, however, that such orders shall be consistent with
Subadviser's brokerage policy, as provided to Investment
Manager; conform with federal securities laws; and be
consistent with seeking best execution. The Subadviser may
consider the research, investment information, and other
services provided by, and the financial responsibility of,
brokers, dealers, or futures commission merchants who may
effect, or be a party to, any such transaction or other
transactions to which Subadviser's other clients may be a
party in accordance with Section 28(e) of the Securities
Exchange Act of 1934, as amended. To the extent permitted by
law, and consistent with its obligation to seek best
execution, Subadviser may execute transactions or pay a
broker-dealer a commission or markup in excess of that which
another broker-dealer might have charged for executing a
transaction provided that Subadviser determines, in good
faith, that the execution is appropriate or the commission
or markup is reasonable in relation to the value of the
brokerage and/or research services provided, viewed in terms
of either that particular transaction or Subadviser's
overall responsibilities with respect to the Fund and other
clients for which it acts as subadviser.
(B) Aggregation of Trades. Subadviser, to the extent permitted
by applicable laws and regulations, may, but shall be under
no obligation to, aggregate the securities or futures
contracts to be sold or purchased for the Fund as well as
other clients of Subadviser in order to seek best execution.
In such event, allocation of the
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securities or futures contracts so purchased or sold, as
well as the expenses incurred in the transaction, will be
made by Subadviser in the manner Subadviser considers to be
the most equitable and consistent with its fiduciary
obligations to the Fund and to such other clients.
(C) Subadviser will not arrange purchases or sales of securities
between the Fund and other accounts advised by Subadviser or
its affiliates unless (a) such purchases or sales are in
accordance with applicable law (including Rule 17a-7 of the
▇▇▇▇ ▇▇▇) and the Fund's policies and procedures as provided
in writing to Subadviser along with any amendments, and (b)
Subadviser determines the purchase or sale is in the best
interests of the Fund.
(iv) Records and Reports. Subadviser (a) shall maintain such books and
records for such time periods as are required of an
SEC-registered investment adviser to an investment company
registered under the 1940 Act, (b) shall render to the Board such
periodic and special reports as the Board or Investment Manager
may reasonably request in writing, and (c) shall meet with any
persons at the request of Investment Manager or the Board for the
purpose of reviewing Subadviser's performance under this
Agreement at reasonable times and upon reasonable advance notice.
(v) Transaction Reports. Subadviser shall provide Investment Manager
a daily trade file with information relating to all transactions
concerning the Fund's assets and shall provide Investment Manager
with such information upon Investment Manager's reasonable
request. Subadviser shall affirm or send a trade file of these
transactions as instruction to the Custodian of the Fund.
(b) Compliance Program and Ongoing Certification(s). As requested,
Subadviser shall timely provide to Investment Manager (i) information
and commentary for the Fund's annual and semi-annual reports, in a
format approved by Investment Manager, and shall (a) certify that such
information and commentary does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
information and commentary not misleading, in a format reasonably
requested by Investment Manager, as it may be amended from time to
time, and (b) provide (i) additional certifications related to
Subadviser's management of the Fund in order to support the Fund's
filings on Form N-CSR and Form N-Q, and the Fund's Principal Executive
Officer's and Principal Financial Officer's certifications under Rule
30a-2 of the 1940 Act, thereon; in a format reasonably requested by
Investment Manager, as it may be amended from time to time, (ii) a
quarterly sub-certification with respect to compliance matters related
to Subadviser and Subadviser's management of the Fund, in a format
reasonably requested by Investment Manager, as it may be amended from
time to time; (iii) an annual certification from Subadviser's Chief
Compliance Officer,
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appointed under Rule 206(4)-7 of the Investment Advisers Act of 1940
(the "Advisers Act"), or his or her designee with respect to the
design and operation of Subadviser's compliance program, in a format
reasonably requested by Investment Manager, as it may be amended from
time to time; and (iv) from time to time Subadviser shall provide such
certifications to assist Investment Manager in fulfilling Investment
Manager's obligations under Rule 38a-1 of the 1940 Act, as are
reasonably requested by the Fund or Investment Manager. In addition,
Subadviser will, from time to time, provide a written assessment of
its compliance program in conformity with current industry standards
that is reasonably acceptable to Investment Manager to enable the Fund
to fulfill its obligations under Rule 38a-1 of the 1940 Act.
(c) Maintenance of Records. Subadviser shall timely furnish to Investment
Manager all information relating to Subadviser's services hereunder
which Subadviser is required by law or regulation to keep and which
are needed by Investment Manager to maintain the books and records of
the Fund required under the 1940 Act and which Investment Manager has
agreed to maintain under the Fund's Advisory Agreement. Subadviser
agrees that all records which it maintains for the Fund are the
property of the Fund and Subadviser will surrender promptly to the
Fund any of such records upon the Fund's request; provided, however,
that Subadviser may retain a copy of such records. Subadviser further
agrees to preserve for the periods prescribed under the 1940 Act any
such records as are required to be maintained by it pursuant to
paragraph 1(a) hereof.
(d) Insurance and Code of Ethics. Subadviser will provide the Fund with
reasonable evidence that, with respect to its activities on behalf of
the Fund, Subadviser is maintaining (i) adequate errors and omissions
insurance and (ii) an appropriate Code of Ethics and related reporting
procedures.
(e) Confidentiality. Subadviser agrees that it shall exercise the same
standard of care that it uses to protect its own confidential and
proprietary information, but no less than reasonable care, to protect
the confidentiality of the Portfolio Information. As used herein
"Portfolio Information" means confidential and proprietary information
with regard to the portfolio holdings and characteristics of the
portion of the Fund allocated to Subadviser, that Subadviser manages
under the terms of this Agreement. Subadviser will restrict access to
the Portfolio Information to those employees of Subadviser who will
use it only for the purpose of providing services under this
Agreement. The foregoing shall not prevent Subadviser from disclosing
Portfolio Information (1) that is publicly known or becomes publicly
known through no unauthorized act; (2) that is rightfully received
from a third party without obligation of confidentiality; (3) approved
in writing by Investment Manager for disclosure, (4) that is disclosed
in the course of a routine regulatory examination; (5) that is
required to be disclosed pursuant to a requirement of a governmental
agency or law so long as Subadviser provides (to the extent permitted
under applicable law) Investment Manager with prompt written notice of
such requirement prior to any such disclosure; however, Subadviser is
not
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required to provide such notice if information is provided on an
aggregate basis without specific attribution to the Fund; (6) to
affiliates of Subadviser that have a reason to know such information;
(7) to the custodian of the Fund; (8) to brokers and dealers that are
counterparties for trades for the Fund; (9) to futures commission
merchants executing or clearing transactions in connection with the
Fund, if applicable; and (10) to third party service providers to
Subadviser subject to confidentiality agreements. Notwithstanding the
foregoing, to the extent Portfolio Information is similar to
investments for other clients of Subadviser, Subadviser may disclose
such investments without direct reference to the Fund. Investment
Manager agrees that Subadviser may identify Investment Manager or the
Fund by name in Subadviser's current client list. Such list may be
used with third parties for so long as this Agreement is in effect.
(f) Cooperation. As reasonably requested by Investment Manager or the
Board and in accordance with the scope of Subadviser's obligations and
responsibilities contained in this Agreement, Subadviser will
cooperate with, and provide assistance to, Investment Manager or the
Fund as needed in order for Investment Manager and the Fund to comply
with applicable laws, rules and regulations, including, but not
limited to, compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and
regulations promulgated by the SEC thereunder.
2. Investment Manager's Duties. Investment Manager shall continue to have
responsibility for all other services to be provided to the Fund pursuant
to the Advisory Agreement and shall oversee and review Subadviser's
performance of its duties under this Agreement. Investment Manager shall
also retain direct portfolio management responsibility with respect to any
assets of the Fund which are not allocated by it to the portfolio
management of Subadviser as provided in paragraph 1(a) hereof or to any
other subadviser. Investment Manager will periodically provide to
Subadviser a list of the affiliates of Investment Manager or the Fund to
which investment restrictions apply, and will specifically identify in
writing (a) all publicly traded companies that issue securities in which
the Fund may not invest, together with ticker symbols for all such
companies, and (b) any affiliated brokers and any restrictions that apply
to the use of those brokers by Subadviser. Neither Subadviser nor any of
its directors, officers, partners, principals, employees or agents shall
have responsibility whatsoever for, and shall incur no liability on account
of (i) diversification, selection or establishment of such investment
objectives, policies and restrictions of the Fund, (ii) advice on, or
management of, any assets for the Fund other than the assets for which
Investment Manager has delegated investment discretion to Subadviser, (iii)
filing of any tax or information returns or forms, withholding or paying
any taxes, or seeking any exemption or refund, (iv) registration of the
Fund with any government or agency, (v) administration of the plans and
trusts investing in the Fund, or (vi), to the extent that Subadviser is
allocated from Investment Manager a portion of the assets of the Fund,
overall Fund compliance with requirements of the 1940 Act and Subchapter M
of the Code, relating to percentage limitations applicable to the Fund's
assets that would require knowledge of the Fund's holdings other than the
assets subject to this Agreement.
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3. Documents Provided to Subadviser. Investment Manager has delivered or will
deliver to Subadviser current copies and supplements thereto of each of the
Prospectus and SAI pertaining to the Fund, and will promptly deliver to it
all future amendments and supplements, if any.
4. Compensation of Subadviser. For the services provided and the expenses
assumed pursuant to this Agreement, Investment Manager will pay to
Subadviser, effective from the date of this Agreement, a fee which shall be
accrued daily and paid monthly, on or before the last business day of the
next succeeding calendar month, at the annual rates as a percentage of the
Fund's average daily net assets set forth in the attached Schedule A which
Schedule can be modified from time to time upon mutual agreement of the
parties to reflect changes in annual rates, subject to appropriate
approvals required by the 1940 Act, if any. If this Agreement becomes
effective or terminates before the end of any month, the fee for the period
from the effective date to the end of the month or from the beginning of
such month to the date of termination, as the case may be, shall be
prorated according to the proportion that such portion of the month bears
to the full month in which such effectiveness or termination occurs. During
the term of this Agreement, Subadviser will pay all expenses incurred by it
in connection with its activities under this Agreement other than costs in
connection with the purchase or sale of securities and other assets
(including brokerage commissions, if any) for the Fund.
5. Expenses. Subadviser shall bear all expenses incurred by it and its staff
with respect to all activities in connection with the performance of
Subadviser's services under this Agreement, including but not limited to
salaries, overhead, travel, preparation of Board materials, review of
marketing materials relating to Subadviser or other information provided by
Subadviser to Investment Manager and/or the Fund's distributor, and
marketing support. Subadviser agrees to pay to Investment Manager the cost
of generating a prospectus supplement, which includes preparation, filing,
printing, and distribution (including mailing) of the supplement, if the
Subadviser makes any changes that require immediate disclosure in the
prospectus or any required regulatory documents that may be caused by
changes to its structure or ownership, to investment personnel, to
investment style or management, or otherwise ("Changes"), and at the time
of notification to the Fund or Investment Manager by the Subadviser of such
Changes, the Fund is not generating a supplement for other purposes or the
Fund or the Investment Manager does not wish to add such Changes to a
pending supplement. In the event two or more subadvisers, if applicable,
each require a supplement simultaneously, the expense (other than the costs
of printing and mailing) of a combined supplement will be shared pro rata
with such other subadviser(s) based upon the number of pages required by
each such subadviser, and each such subadviser shall pay its pro rata share
of printing and mailing costs and expenses based upon the number of
supplements required to be printed and mailed. All other expenses not
specifically assumed by Subadviser hereunder or by Investment Manager under
the Advisory Agreement are borne by the applicable Fund.
In the event that there is a proposed change in control of Subadviser that
would act to terminate this Agreement, if a vote of shareholders to approve
continuation of this
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Agreement is at that time deemed by counsel to the Fund to be required by
the 1940 Act or any rule or regulation thereunder, Subadviser agrees to
assume all reasonable costs associated with soliciting shareholders of the
appropriate Fund(s), to approve continuation of this Agreement. Such
expenses include the reasonable costs of preparation, filing and mailing of
a proxy statement, and of soliciting proxies.
In the event that such proposed change in control of Subadviser shall occur
and the Fund is operating under an exemptive order issued by the SEC to
Investment Manager with respect to the appointment of subadvisers absent
shareholder approval, Subadviser agrees to assume all reasonable costs and
expenses (including the costs of preparation, mailing and filing)
associated with the preparation of an information statement, required by
the exemptive order containing all information that would be included in a
proxy statement.
6. Representations of Subadviser. Subadviser represents and warrants as
follows:
(a) Subadviser (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or
the Advisers Act from performing the services contemplated by this
Agreement; (iii) has appointed a Chief Compliance Officer under Rule
206(4)-7 of the Advisers Act; (iv) has adopted written policies and
procedures that are reasonably designed to prevent violations of the
Advisers Act from occurring, detect violations that have occurred,
correct promptly any violations that have occurred, and will provide
prompt notice of any material violations relating to the Fund to
Investment Manager; (v) has met and will seek to continue to meet for
so long as this Agreement remains in effect, any other applicable
federal or state requirements, or the applicable requirements of any
regulatory or industry self-regulatory agency necessary to be met in
order to perform the services contemplated by this Agreement; (vi) has
the authority to enter into and perform the services contemplated by
this Agreement; and (vii) will promptly notify Investment Manager (1)
of the occurrence of any event that would disqualify Subadviser from
serving as an investment adviser of an investment company pursuant to
Section 9(a) of the 1940 Act, (2) in the event the Securities and
Exchange Commission (the "SEC") or other governmental authority has:
censured Subadviser; placed limitations upon the activities, functions
or operations of Subadviser; or has commenced proceedings or an
investigation that may result in any of these actions, (3) upon having
a reasonable basis for believing that the Fund has ceased to qualify
or might not qualify as a regulated investment company under
Subchapter M of the Code and (4) of any material fact known to
Subadviser respecting or relating to Subadviser that is not contained
in the Fund's Prospectus, and is required to be stated therein or
necessary to make the statements therein not misleading, or of any
statement relating to Subadviser or contained therein that becomes
untrue in any material respect.
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(b) Subadviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide
Investment Manager with a copy of the code of ethics. Within 60 days
of the end of the last calendar quarter of each year that this
Agreement is in effect, a duly authorized officer of Subadviser shall
certify to Investment Manager that (1) there has been no material
violation of Subadviser's code of ethics or, if such a violation has
occurred, that appropriate action was taken in response to such
violation and (2) it has adopted procedures reasonably designed to
prevent Subadviser's access persons (as defined in the ▇▇▇▇ ▇▇▇) from
violating Subadviser's code of ethics. To the extent Subadviser has
approved any material changes to its code of ethics, such revised code
together with an explanation of such amendments shall be promptly (but
in no event later than 60 days) provided to Investment Manager.
(c) Subadviser has provided Investment Manager with a copy of its Form ADV
Part II, which as of the date of this Agreement is its Form ADV Part
II as most recently deemed to be filed with the SEC, and promptly will
furnish a copy of all amendments to Investment Manager (at least
annually).
(d) Subadviser will promptly notify Investment Manager of any changes in
the controlling shareholder, in the key personnel who are either the
portfolio manager(s) responsible for the Fund or the Chief Executive
Officer of Subadviser, or if there is otherwise an actual change in
control or management of Subadviser.
7. Representations of Investment Manager. Investment Manager represents and
warrants as follows:
(a) Investment Manager (i) is registered as an investment adviser under
the Advisers Act and will continue to be so registered for so long as
this Agreement remains in effect; (ii) is not prohibited by the 1940
Act or the Advisers Act from performing the services contemplated by
this Agreement, (iii) has appointed a Chief Compliance Officer under
Rule 206(4)-7 of the Advisers Act; (iv) has adopted written policies
and procedures that are reasonably designed to prevent violations of
the Advisers Act from occurring, detect violations that have occurred,
correct promptly any violations that have occurred (v) has met and
will seek to continue to meet for so long as this Agreement remains in
effect, any other applicable federal or state requirements, or the
applicable requirements of any regulatory or industry self-regulatory
agency necessary to be met in order to perform the services
contemplated by this Agreement; (vi) has the authority to enter into
and perform the services contemplated by this Agreement; and (vii)
will promptly notify Subadviser (1) of the occurrence of any event
that would disqualify Investment Manager from serving as an investment
adviser of an investment company pursuant to Section 9(a) of the 1940
Act or otherwise, (2) in the event the SEC or other governmental
authority has: censured Investment Manager; placed limitations upon
its activities, functions or operations; or has commenced proceedings
or an investigation that may result in any of these actions or (3)
upon having a reasonable basis for believing that the Fund has ceased
to qualify or
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might not qualify as a regulated investment company under Subchapter M
of the Code.
(b) Investment Manager agrees that neither it nor any of its affiliates
will in any way refer directly or indirectly to its relationship with
Subadviser, or any of its affiliates in offering, marketing, or other
promotional materials without the prior written consent of Subadviser;
provided that Investment Manager shall not be required to obtain
Subadviser's prior written consent to make factual statements
regarding the fact that Subadviser serves as subadviser to the Fund on
a representative client list, in responding to requests for
information, in required disclosures or in responding to regulatory
inquiries.
(c) The Fund is and will continue to be the owner of all assets for which
Investment Manager delegates investment discretion to Subadviser from
time to time, and there are and will continue to be no restrictions on
the pledge, hypothecation, transfer, sale or public distribution of
such assets, unless restricted or prohibited under the 1940 Act or the
rules and regulations promulgated thereunder.
(d) Investment Manager is establishing and will be maintaining the Fund's
account with Subadviser solely for the purpose of investing the
relevant assets and not with a view to obtaining information regarding
portfolio holdings or investment decisions in order to effect
securities transactions based upon such information or to provide such
information to another party, and that Investment Manager and its
employees, officers and directors shall not use account holdings
information for any of the foregoing purposes.
(e) The directors of the Fund have approved the appointment of Subadviser
pursuant to this Agreement.
8. Liability and Indemnification.
(a) Except as may otherwise be provided by the 1940 Act or any other
federal securities law, Subadviser, any of its affiliates and any of
the officers, partners, employees, consultants, or agents thereof
shall not be liable for any losses, claims, damages, liabilities, or
litigation (including legal and other expenses) incurred or suffered
by the Fund, Investment Manager, or any affiliated persons thereof
(within the meaning of Section 2(a)(3) of the ▇▇▇▇ ▇▇▇) or controlling
persons thereof (as described in Section 15 of the Securities Act of
1933, as amended (the "1933 Act") ) (collectively, "Fund and
Investment Manager Indemnitees") as a result of any error of judgment
or mistake of law by Subadviser with respect to the Fund, except that
nothing in this Agreement shall operate or purport to operate in any
way to exculpate, waive, or limit the liability of Subadviser for, and
Subadviser shall indemnify and hold harmless the Fund and Investment
Manager Indemnitees against any and all losses, claims, damages,
liabilities, or litigation (including reasonable legal and other
expenses) to which any of the Fund and Investment Manager Indemnitees
may become subject under the 1933 Act, the 1940 Act, the Advisers Act,
or under any other statute, at common law, or
9
otherwise arising out of or based on (i) any willful misconduct, bad
faith, reckless disregard, or negligence of Subadviser in the
performance of any of its duties or obligations hereunder; (ii) any
untrue statement of a material fact regarding Subadviser contained in
the Prospectus and SAI, proxy materials, reports, advertisements,
sales literature, or other materials pertaining to the Fund or the
omission to state therein a material fact regarding Subadviser known
to Subadviser which was required to be stated therein or necessary to
make the statements therein not misleading, if such statement or
omission was made in reliance upon written information furnished to
Investment Manager or the Fund by Subadviser Indemnitees (as defined
below) for use therein; provided, however, that Subadviser has had a
reasonable opportunity to review information regarding Subadviser
contained in the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature or other materials pertaining to the
Fund as set forth in section 11; or (iii) any violation of federal or
state statutes or regulations by Subadviser. It is further understood
and agreed that Subadviser may rely upon information furnished to it
by Investment Manager that it reasonably believes to be accurate and
reliable; provided, however, that Subadviser shall be liable for any
loss incurred by the Fund, the Investment Manager or their respective
affiliates to the extent such losses arise out of any act or omission
directly attributable to Subadviser which results, directly or
indirectly, in an error in the net asset value of the Fund. The
federal securities laws impose liabilities in certain circumstances on
persons who act in good faith, and therefore nothing herein shall in
any way constitute a waiver of limitation of any rights which
Investment Manager may have under any securities laws. Neither
Subadviser nor its affiliates shall be liable for any loss or damage
arising or resulting from the acts or omissions of the custodian of
the Fund, any broker, financial institution or any other third party
with or through whom Subadviser arranges or enters into a transaction
in respect of the Fund, except to the extent that Subadviser or its
affiliate instructed such broker, financial institution or third party
to take such action or omission. Investment Manager understands and
acknowledges that Subadviser does not warrant that the portion of the
assets of the Fund managed by Subadviser will achieve any particular
rate of return or that its performance will match any benchmark index
or other standard or objective.
(b) Except as may otherwise be provided by the 1940 Act or any other
federal securities law, Investment Manager and the Fund shall not be
liable for any losses, claims, damages, liabilities, or litigation
(including legal and other expenses) incurred or suffered by
Subadviser or any of its affiliated persons thereof (within the
meaning of Section 2(a)(3) of the ▇▇▇▇ ▇▇▇) or controlling persons (as
described in Section 15 of the 1933 Act) (collectively, "Subadviser
Indemnitees") as a result of any error of judgment or mistake of law
by Investment Manager with respect to the Fund, except that nothing in
this Agreement shall operate or purport to operate in any way to
exculpate, waive, or limit the liability of Investment Manager for,
and Investment Manager shall indemnify and hold harmless Subadviser
Indemnitees against any and all losses, claims, damages, liabilities,
or litigation (including reasonable legal and other
10
expenses) to which any of Subadviser Indemnitees may become subject
under the 1933 Act, the 1940 Act, the Advisers Act, or under any other
statute, at common law, or otherwise arising out of or based on (i)
any willful misconduct, bad faith, reckless disregard, or negligence
of Investment Manager in the performance of any of its duties or
obligations hereunder; (ii) any untrue statement of a material fact
contained in the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the
Fund or the omission to state therein a material fact known to
Investment Manager which was required to be stated therein or
necessary to make the statements therein not misleading, unless such
statement or omission concerned Subadviser and was made in reliance
upon written information furnished to Investment Manager or the Fund
by a Subadviser Indemnitee for use therein, or (iii) any violation of
federal or state statutes or regulations by Investment Manager or the
Fund.
(c) After receipt by Investment Manager or Subadviser, its affiliates, or
any officer, director, employee, or agent of any of the foregoing,
entitled to indemnification as stated in (a) or (b) above
("Indemnified Party") of notice of the commencement of any action, if
a claim in respect thereof is to be made against any person obligated
to provide indemnification under this section ("Indemnifying Party"),
such Indemnified Party shall notify the Indemnifying Party in writing
of the commencement thereof as soon as practicable after the summons
or other first written notification giving information of the nature
of the claim that has been served upon the Indemnified Party; provided
that the failure to so notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability under this section, except
to the extent that the omission results in a failure of actual notice
to the Indemnifying Party and such Indemnifying Party is damaged
solely as a result of the failure to give such notice. The
Indemnifying Party, upon the request of the Indemnified Party, shall
retain counsel satisfactory to the Indemnified Party to represent the
Indemnified Party in the proceeding, and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (1) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention
of such counsel, or (2) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying Party
and the Indemnified Party and representation by both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its
written consent, which consent shall not be unreasonably withheld, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such
settlement or judgment.
9. Duration and Termination.
11
(a) Unless sooner terminated as provided herein, this Agreement shall
continue in effect for a period of more than two years from the date
written above only so long as such continuance is specifically
approved in conformity with the requirements of the 1940 Act.
Thereafter, if not terminated, this Agreement shall continue
automatically for successive periods of 12 months each, provided that
such continuance is specifically approved at least annually (i) by a
vote of a majority of the Board members who are not parties to this
Agreement or interested persons (as defined in the ▇▇▇▇ ▇▇▇) of any
such party, and (ii) by the Board or by a vote of the holders of a
majority of the outstanding voting securities (as defined in the 1940
Act) of the Fund.
(b) Notwithstanding the foregoing, this Agreement may be terminated at any
time, without the payment of any penalty, by the Board or by vote of a
majority of the outstanding voting securities (as defined in the ▇▇▇▇
▇▇▇) of the Fund on 60 days' written notice to Subadviser. This
Agreement may also be terminated, without the payment of any penalty,
by Investment Manager (i) upon 60 days' written notice to Subadviser;
(ii) upon material breach by Subadviser of any representations and
warranties set forth in this Agreement, if such breach has not been
cured within 20 days after written notice of such breach; or (iii)
immediately if, in the reasonable judgment of Investment Manager,
Subadviser becomes unable to discharge its duties and obligations
under this Agreement, including circumstances such as the insolvency
of Subadviser or other circumstances that could adversely affect the
Fund. Subadviser may terminate this Agreement at any time, without
payment of any penalty, (1) upon 60 days' written notice to Investment
Manager; or (2) upon material breach by Investment Manager of any
representations and warranties set forth in the Agreement, if such
breach has not been cured within 20 days after written notice of such
breach. This Agreement shall terminate automatically in the event of
its assignment (as defined in the ▇▇▇▇ ▇▇▇) or upon the termination of
the Advisory Agreement.
(c) In the event of termination of the Agreement, those paragraphs of the
Agreement which govern conduct of the parties' future interactions
with respect to Subadviser having provided investment management
services to the Fund(s) for the duration of the Agreement, including,
but not limited to, paragraphs 1(a)(iv)(a), 1(d), 1(e), 1(f), 8(a),
8(b), 8(c), 15, 17, 18 and 20 shall survive such termination of the
Agreement.
10. Subadviser's Services Are Not Exclusive. Nothing in this Agreement shall
limit or restrict the right of Subadviser or any of its partners, officers,
or employees to engage in any other business or to devote his or her time
and attention in part to the management or other aspects of any business,
whether of a similar or a dissimilar nature, or limit or restrict
Subadviser's right to engage in any other business or to render services of
any kind to any other mutual fund, corporation, firm, individual, or
association. Subadviser acts as adviser to other clients and may, subject
to compliance with its fiduciary obligations, give advice, and take action,
with respect to any of those which may differ from the advice given, or the
timing or nature of action taken, with respect to the Fund.
12
Subject to its fiduciary obligation to the Fund, Subadviser shall have no
obligation to purchase or sell for the Fund, or to recommend for purchase
or sale by the Fund, any security which Subadviser, its principals,
affiliates or employees may purchase or sell for themselves or for any
other clients.
11. References to Subadviser. Subadviser hereby grants to Investment Manager
during the term of this Agreement, the right and license to use
Subadviser's name and registered and unregistered trademarks, service marks
and logos on Investment Manager's web site(s) and in other materials solely
for the purposes of disclosing and promoting the relationship between the
parties as described herein. In accordance with the exercise of the license
rights granted in the preceding sentence, Investment Manager agrees to
furnish to Subadviser at its principal office all prospectuses, SAI's,
proxy statements, reports to shareholders, sales literature, or other
material prepared for distribution to sales personnel, shareholders of the
Fund or the public, that refer to Subadviser prior to the use thereof, and
not to use such material if Subadviser reasonably objects in writing five
(5) business days (or such other time as may be mutually agreed upon) after
receipt thereof. Such materials may be furnished to Subadviser hereunder by
first-class or overnight mail, electronic or facsimile transmission, or
hand delivery. In the event that this Agreement shall be terminated for any
reason, and in the event a new or successor Agreement with Subadviser is
not concluded, Investment Manager understands that it must immediately take
all steps necessary to delete the name "[Subadviser]" from the Fund's name
and any other reference in all materials (including Investment Manager's
website) and cease any and all use of the name "[Subadviser]".
12. Notices. Any notice under this Agreement must be given in writing as
provided below or to another address as either party may designate in
writing to the other.
Subadviser:
__________________________
__________________________
__________________________
__________________________
__________________________
Fax: _____________________
with a copy to:
__________________________
__________________________
__________________________
__________________________
__________________________
Tel: _____________________
Fax: _____________________
13
Investment Manager:
▇▇▇▇▇▇ ▇▇▇
Vice President Product Management and Development
RiverSource Investments, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Group Counsel
Ameriprise Financial
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
13. Amendments. This Agreement may be amended by mutual consent, subject to
approval by the Board and the Fund's shareholders to the extent required by
the 1940 Act.
14. Assignment. No assignment of this Agreement shall be made by Investment
Manager or Subadviser without the prior written consent of the Fund, and,
if required by law, the Fund's shareholders, and Investment Manager or
Subadviser (as applicable). Notwithstanding the foregoing, no assignment
shall be deemed to result from any changes in the directors, officers, or
employees of Investment Manager or Subadviser except as may be provided to
the contrary in the 1940 Act or the rules and regulations thereunder.
15. Governing Law. This Agreement, and, in the event of termination of the
Agreement, those paragraphs that survive such termination of the Agreement
under paragraph 9(c), shall be governed by the laws of the commonwealth of
Massachusetts, without giving effect to the conflicts of laws principles
thereof, or any applicable provisions of the 1940 Act. To the extent that
the laws of the commonwealth of Massachusetts, or any of the provision of
this Agreement, conflict with applicable provisions of the 1940 Act, the
latter shall control.
16. Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof.
17. Severability. Should any part of this Agreement be held invalid by a court
decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement and, in the event of
termination of the Agreement, those paragraphs that
14
survive such termination of the Agreement under paragraph 9(c), shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors.
18. Interpretation. Any questions of interpretation of any term or provision of
this Agreement having a counterpart in or otherwise derived from a term or
provision of the 1940 Act shall be resolved by reference to such term or
provision in the 1940 Act and to interpretation thereof, if any, by the
federal courts or, in the absence of any controlling decision of any such
court, by rules, regulations, or orders of the SEC validly issued pursuant
to the 1940 Act. Where the effect of a requirement of the 1940 Act
reflected in any provision of this Agreement is altered by a rule,
regulation, or order of the SEC, whether of special or general application,
such provision shall be deemed to incorporate the effect of such rule,
regulation, or order.
19. Headings. The headings in this Agreement are intended solely as a
convenience and are not intended to modify any other provision herein.
20. Authorization. Each of the parties represents and warrants that the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by
all necessary corporate action by such party and when so executed and
delivered, this Agreement will be the valid and binding obligation of such
party in accordance with its terms.
15
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
RIVERSOURCE INVESTMENTS, LLC ________________________________________
By: By:
--------------------------------- ------------------------------------
Signature Signature
Name: Name:
------------------------------- ----------------------------------
Printed Printed
Title: Title:
------------------------------ ---------------------------------
16
SUBADVISORY AGREEMENT
SCHEDULE A
Compensation pursuant to Paragraph 4 of Subadvisory Agreement shall be
calculated in accordance with the following schedule:
Average Daily Net Assets Rate
------------------------ ----
____________ __%
The rates set forth above apply to average daily net assets that are subject to
Subadviser's investment discretion in the following fund:
Date: _________, 20__
17
