EXHIBIT d(2)
SUB-ADVISORY AGREEMENT
July 6, 1999
Xxxxxx Capital Management, LLC
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Dear Sirs:
Warburg, Xxxxxx Global Post-Venture Capital Fund, Inc. (the
"Fund"), a corporation organized and existing under the laws of the State of
Maryland, and Credit Suisse Asset Management, LLC, as its investment adviser
(the "Adviser"), herewith confirm their agreement with Xxxxxx Capital
Management, LLC (the "Sub-Adviser") as follows:
1. Investment Description; Appointment
The Fund desires to employ the capital of the Fund by
investing and reinvesting in securities of the kind and in accordance with the
limitations specified in the Fund's Articles of Incorporation, as may be amended
from time to time (the "Articles of Incorporation"), and in the Prospectus and
Statement of Additional Information, as from time to time in effect (the
"Prospectus" and "SAI," respectively), and in such manner and to such extent as
may from time to time be approved by the Board of Directors of the Fund. Copies
of the Prospectus, SAI and Articles of Incorporation have been or will be
submitted to the Sub-Adviser. The Fund agrees to provide the Sub-Adviser copies
of all amendments to the Prospectus and SAI on an on-going basis. The Fund
employs the Adviser as its investment adviser. The Adviser desires to employ and
hereby appoints the Sub-Adviser to act as its sub-investment adviser upon the
terms set forth in this Agreement. The Sub-Adviser accepts the appointment and
agrees to furnish the services set forth below for the compensation provided for
herein.
2. Services as Sub-Adviser
(a) Subject to the supervision and direction of the
Adviser, the Sub-Adviser will provide investment advisory assistance and
portfolio management advice to the Fund in accordance with (a) the Articles of
Incorporation, (b) the
Investment Company Act of 1940, as amended (the "1940 Act"), and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and all applicable Rules
and Regulations of the Securities and Exchange Commission (the "SEC") and all
other applicable laws and regulations and (c) the Fund's investment objective
and policies as stated in the Prospectus and SAI and investment parameters
provided by the Adviser from time to time. In connection therewith, the
Sub-Adviser will:
(i) determine whether to purchase, retain or
sell interests in United States or foreign private investment vehicles
that themselves invest in debt and equity securities of companies in
the venture capital and post-venture capital stages of development or
companies engaged in special situations or changes in corporate
control, including buyouts ("Investments"). The Sub-Adviser is hereby
authorized to execute, or place orders for the execution of, all
Investments on behalf of the Fund;
(ii) assist the custodian and accounting agent
for the Fund in determining or confirming, consistent with the
procedures and policies stated in the Prospectus and SAI, the value of
any Investments for which the custodian and accounting agent seek
assistance from or identify for review by the Sub-Adviser;
(iii) monitor the execution of orders for the
purchase or sale of Investments and the settlement and clearance of
those orders;
(iv) exercise voting rights in respect of
Investments; and
(v) provide reports to the Fund's Board of
Directors for consideration at quarterly meetings of the Board on the
Investments and furnish the Adviser and the Fund's Board of Directors
with such periodic and special reports as the Fund or the Adviser may
reasonably request.
(b) In connection with the performance of the services of
the Sub-Adviser provided for herein, the Sub-Adviser may contract at its own
expense with third parties for the acquisition of research, clerical services
and other administrative services that would not require such parties to be
required to register as an investment adviser under the Advisers Act; provided
that the Sub-Adviser shall remain liable for the performance of its duties
hereunder.
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3. Execution of Transactions
(a) The Sub-Adviser will not effect orders for the
purchase or sale of securities on behalf of the Fund through brokers or dealers
as agents.
(b) It is understood that the services of the Sub-Adviser
are not exclusive, and nothing in this Agreement shall prevent the Sub-Adviser
from providing similar services to other investment companies or from engaging
in other activities, provided that those activities do not adversely affect the
ability of the Sub-Adviser to perform its services under this Agreement. The
Fund and the Adviser further understand and acknowledge that the persons
employed by the Sub-Adviser to assist in the performance of its duties under
this Agreement will not devote their full time to that service. Nothing
contained in this Agreement will be deemed to limit or restrict the right of the
Sub-Adviser or any affiliate of the Sub-Adviser to engage in and devote time and
attention to other businesses or to render services of whatever kind or nature,
provided that doing so does not adversely affect the ability of the Sub-Adviser
to perform its services under this Agreement.
(c) On occasions when the Sub-Adviser deems the purchase
or sale of a security to be in the best interest of the Fund as well as of other
investment advisory clients of the Sub-Adviser, the Sub-Adviser may, to the
extent permitted by applicable laws and regulations, but shall not be obligated
to, aggregate the securities to be so sold or purchased with those of its other
clients. In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the
Sub-Adviser in a manner that is fair and equitable, in the judgment of the
Sub-Adviser, in the exercise of its fiduciary obligations to the Fund and to
such other clients. The Sub-Adviser shall provide to the Adviser and the Fund
all information reasonably requested by the Adviser and the Fund relating to the
decisions made by the Sub-Adviser regarding allocation of securities purchased
or sold, as well as the expenses incurred in a transaction, among the Fund and
the Sub-Adviser's other investment advisory clients.
(d) In connection with the purchase and sale of
securities for the Fund, the Sub-Adviser will provide such information as may be
reasonably necessary to enable the custodian and co-administrators to perform
their administrative and recordkeeping responsibilities with respect to the
Fund.
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4. Disclosure Regarding the Sub-Adviser
(a) The Sub-Adviser has reviewed the disclosure about the
Sub-Adviser contained in the Fund's registration statement and represents and
warrants that, with respect to such disclosure about the Sub-Adviser or
information related, directly or indirectly, to the Sub-Adviser, such
registration statement contains, as of the date hereof, no untrue statement of
any material fact and does not omit any statement of a material fact which is
required to be stated therein or necessary to make the statements contained
therein not misleading.
(b) The Sub-Adviser agrees to notify the Adviser and the
Fund promptly of any (i) statement about the Sub-Adviser contained in the Fund's
registration statement that becomes untrue in any material respect or (ii)
omission of a material fact about the Sub-Adviser in the Fund's registration
statement which is required to be stated therein or necessary to make the
statements contained therein not misleading or (iii) any reorganization or
change in the Sub-Adviser, including any change in its ownership or key
employees.
(c) Prior to the Fund or the Adviser or any affiliated
person (as defined in the 1940 Act, an "Affiliate") of either using or
distributing sales literature or other promotional material referring to the
Sub-Adviser, the Sub-Adviser shall have the right to approve the general
advertising or promotional plan pursuant to which such literature or material is
being utilized or distributed; provided that the Sub-Adviser shall be deemed to
have approved such advertising or plan if it has not objected to its use within
ten (10) business days after such material has been sent to it. The Fund or the
Adviser will use all reasonable efforts to ensure that all advertising, sales
and promotional material used or distributed by or on behalf of the Fund or the
Adviser that refers to the Sub-Adviser will comply with the requirements of the
Advisers Act, the 1940 Act and the rules and regulations promulgated thereunder.
(d) The Sub-Adviser has supplied the Adviser and the Fund
copies of its Form ADV with all exhibits and attachments thereto and will
hereinafter supply the Adviser, promptly upon preparation thereof, copies of all
amendments or restatements of such document.
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5. Certain Representations and Warranties of the Sub-Adviser
(a) The Sub-Adviser represents and warrants that it is a
duly registered investment adviser under the Advisers Act, a duly registered
investment adviser in any and all states of the United States in which the
Sub-Adviser is required to be so registered and has obtained all necessary
licenses and approvals in order to perform the services provided in this
Agreement. The Sub-Adviser covenants to maintain all necessary registrations,
licenses and approvals in effect during the term of this Agreement.
(b) The Sub-Adviser represents that it has read and
understands the Prospectus and SAI and warrants that in investing the Fund's
assets it will use all reasonable efforts to adhere to the Fund's investment
objectives, policies and restrictions contained therein.
6. Compliance
(a) The Sub-Adviser agrees that it shall promptly notify
The Adviser and the Fund (i) in the event that the SEC or any other regulatory
authority has censured its activities, functions or operations; suspended or
revoked its registration as an investment adviser; or has commenced proceedings
or an investigation that may result in any of these actions, (ii) in the event
that there is a change in the Sub-Adviser, financial or otherwise, that
adversely affects its ability to perform services under this Agreement or (iii)
upon having a reasonable basis for believing that, as a result of the
Sub-Adviser's investing the Fund's assets, the Fund's investment portfolio has
ceased to adhere to the Fund's investment objective, policies and restrictions
as stated in the Prospectus or SAI or is otherwise in violation of applicable
law.
(b) The Adviser agrees that it shall promptly notify the
Sub-Adviser in the event that the SEC has censured the Adviser or the Fund;
placed limitations upon any of their activities, functions or operations;
suspended or revoked the Adviser's registration as an investment adviser; or has
commenced proceedings or an investigation that may result in any of these
actions.
(c) The Fund and the Adviser shall be given access to the
records of the Sub-Adviser at reasonable times solely for the purpose of
monitoring compliance with the terms of this Agreement and the rules and
regulations applicable to the Sub-
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Adviser relating to its providing investment advisory services to the Fund,
including without limitation records relating to trading by employees of the
Sub-Adviser for their own accounts and on behalf of other clients. The
Sub-Adviser agrees to cooperate with the Fund and the Adviser and their
representatives in connection with any such monitoring efforts.
7. Books and Records
(a) In compliance with the requirements of Rule 31a-3
under the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Fund are the property of the Fund and further agrees to
surrender promptly to either the Adviser or the Fund any of such records upon
the request of either of them. The Sub-Adviser further agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act the records required to
be maintained by Rule 31a-1 under the 1940 Act and to preserve the records
required by Rule 204-2 under the Advisers Act for the period specified therein.
(b) The Sub-Adviser hereby agrees to furnish to
regulatory authorities having the requisite authority any information or reports
in connection with services that the Sub-Adviser renders pursuant to this
Agreement which may be requested in order to ascertain whether the operations of
the Fund are being conducted in a manner consistent with applicable laws and
regulations.
8. Provision of Information;
Proprietary and Confidential Information
(a) The Adviser agrees that it will furnish to the
Sub-Adviser information related to or concerning the Fund that the Sub-Adviser
may reasonably request.
(b) The Sub-Adviser agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the Fund all
records and other information relative to the Fund, the Adviser and prior,
present or potential shareholders and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder except after prior notification to and approval in writing of the
Fund, which approval shall not be unreasonably withheld and may not be withheld
where the Sub-Adviser may be exposed to civil or criminal contempt proceedings
for failure to comply or when requested to divulge such information by duly
constituted authorities.
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(c) The Sub-Adviser represents and warrants that neither
it nor any affiliate will use the name of the Fund, the Adviser or any of their
affiliates in any prospectus, sales literature or other material in any manner
without the prior written approval of the Fund or the Adviser, as applicable.
9. Standard of Care
The Sub-Adviser shall exercise its best judgment in rendering
the services described herein. The Sub-Adviser shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund or the
Adviser in connection with the matters to which this Agreement relates, except
that the Sub-Adviser shall be liable for a loss resulting from a breach of
fiduciary duty by the Sub-Adviser with respect to the receipt of compensation
for services; provided that nothing herein shall be deemed to protect or purport
to protect the Sub-Adviser against any liability to the Fund or the Adviser or
to shareholders of the Fund to which the Sub-Adviser would otherwise be subject
by reason of willful misfeasance, bad faith or gross negligence on its part in
the performance of its duties or by reason of the Sub-Adviser's reckless
disregard of its obligations and duties under this Agreement. The Fund and the
Adviser understand and agree that the Sub-Adviser may rely upon information
furnished to it reasonably believed by the Sub-Adviser to be accurate and
reliable and, except as herein provided, the Sub-Adviser shall not be
accountable for loss suffered by the Fund by reason of such reliance of the
Sub-Adviser.
10. Indemnification
(a) The Sub-Adviser agrees to indemnify and hold harmless
the Fund, the Adviser, any affiliate thereof, and each person, if any, who,
within the meaning of Section 15 of the Securities Act of 1933, as amended (the
"1933 Act"), controls ("controlling person") any or all of the Fund and the
Adviser (all of such persons being referred to as "Fund Indemnified Persons")
against any and all losses, claims, damages, liabilities or litigation
(including legal and other expenses) to which any Fund Indemnified Person may
become subject under the 1933 Act, the 1940 Act, the Advisers Act, the Internal
Revenue Code of 1986, as amended (the "Code"), or under any other statute, at
common law or otherwise, arising out of the Sub-Adviser's responsibilities as
Sub-Adviser to the Fund which (i) may be based upon any misfeasance, malfeasance
or nonfeasance by the Sub-Adviser, or any of its employees or representatives,
or any affiliate of or any person acting on
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behalf of the Sub-Adviser, (ii) may be based upon a failure to comply with
paragraph 5(b) of this Agreement, or (iii) may be based upon any untrue
statement or alleged untrue statement of a material fact about the Sub-Adviser
contained in the registration statement covering the shares of the Fund, or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact about the Sub-Adviser known or which should have been
known to the Sub-Adviser and was required to be stated therein or necessary to
make the statements therein not misleading, if such a statement or omission was
made in reliance upon information furnished to the Adviser, the Fund or any
affiliate thereof by the Sub-Adviser or any affiliate of the Sub-Adviser;
provided that in no case shall the indemnity in favor of any Fund Indemnified
Person be deemed to protect such persons against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
(b) The Fund agrees to indemnify and hold harmless the
Sub-Adviser, any of its affiliates, and each controlling person, if any, of the
Sub-Adviser (all of such persons being referred to as "Sub-Adviser Indemnified
Persons") against any and all losses, claims, damages, liabilities or litigation
(including legal and other expenses) to which any Sub-Adviser Indemnified Person
may become subject under the 1933 Act, the 1940 Act, the Advisers Act, the Code
or under any other statute, at common law or otherwise, which (i) may be based
upon any misfeasance, malfeasance or nonfeasance by the Fund or the Adviser, or
any of their respective employees or representatives, or any affiliate of or any
person acting on behalf of the Fund or the Adviser, (ii) may be based upon a
failure by the Fund or the Adviser to comply with this Agreement, or (iii) may
be based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement covering the shares of the Fund, or
any amendment or supplement thereto, or the omission or alleged omission to
state therein a material fact known or which should have been known to the Fund
and was required to be stated therein or necessary to make the statements
therein not misleading, unless such a statement or omission was made in reliance
upon information furnished to the Adviser, the Fund or any affiliate thereof by
the Sub-Adviser or any affiliate of the Sub-Adviser; provided that in no case
shall the indemnity in favor of any Sub-Adviser Indemnified Person be deemed to
protect such persons against any liability to which any such person
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would otherwise be subject by reason of willful misfeasance, bad faith, gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement.
(c) A party (the "Indemnifying Person") shall not be
liable under paragraphs 10(a) or 10(b) herein with respect to any claim made
against any Fund Indemnified Person or Sub-Adviser Indemnified Person, as
applicable (a Fund Indemnified Person and a Sub-Adviser Indemnified Person may
be referred to in this paragraph 10(c) as an "Indemnified Person"), unless such
Indemnified Person shall have notified the Indemnifying Person in writing within
a reasonable time after the summons, notice or other first legal process or
notice giving information of the nature of the claim shall have been served upon
such Indemnified Person (or after such Indemnified Person shall have received
notice of such service on any designated agent), but failure to notify the
Indemnifying Person of any such claim shall not relieve the Indemnifying Person
from any liability which it may have to any Indemnified Person against whom such
action is brought otherwise than on account of this paragraph 10. In case any
such action is brought against any Indemnified Person, the Indemnifying Person
will be entitled to participate, at its own expense, in the defense thereof or,
after notice to the Indemnified Person, to assume the defense thereof, with
counsel satisfactory to the Indemnified Person. If the Indemnifying Person
assumes the defense of any such action and the selection of counsel by the
Indemnifying Person to represent the Indemnifying Person and the Indemnified
Person would result in a conflict of interests and therefore would not, in the
reasonable judgment of the Indemnified Person, adequately represent the
interests of the Indemnified Person, the Indemnifying Person will, at its own
expense, assume the defense with counsel to the Indemnifying Person and, also at
its own expense, with separate counsel to the Indemnified Person which counsel
shall be satisfactory to the Indemnifying Person and to the Indemnified Person.
The Indemnified Person shall bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Person shall not be liable to the
Indemnified Person under this Agreement for any legal or other expenses
subsequently incurred by the Indemnified Person independently in connection with
the defense thereof other than reasonable costs of investigation. The
Indemnifying Person shall not have the right to compromise on or settle the
litigation without the prior written consent of the Indemnified Person if such
compromise or settlement results, or may result, in a finding of wrongdoing on
the part of the Indemnified Person.
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11. Compensation
In consideration of the services rendered pursuant to this
Agreement, the Adviser will pay the Sub-Adviser a quarterly fee calculated at an
annual rate of 1.00% of the net asset value of the Investments as of the last
day of each calendar quarter. The fee for the period from the date of this
Agreement to the end of the quarter during which this Agreement commenced shall
be prorated according to the proportion that such period bears to the full
quarterly period. Such fee shall be paid by the Adviser to the Sub-Adviser
within ten (10) business days after the last day of each quarter or, upon
termination of this Agreement before the end of a quarter, within ten (10)
business days after the effective date of such termination. Upon any termination
of this Agreement before the end of a quarter, the fee for such part of that
quarter shall be prorated according to the proportion that such period bears to
the full quarterly period. For the purpose of determining fees payable to the
Sub-Adviser, the value of the Investments shall be computed in the manner
specified in the Prospectus or SAI. The Sub-Adviser shall have no right to
obtain compensation directly from the Fund for services provided hereunder and
agrees to look solely to the Adviser for payment of fees due.
12. Expenses
(a) The Sub-Adviser will bear all expenses in connection
with the performance of its services under this Agreement, which shall not
include the Fund's expenses listed in paragraph 12(b).
(b) The Fund will bear certain other expenses to be
incurred in its operation, including: investment advisory and administration
fees; taxes, interest, brokerage fees and commissions, if any; fees of Directors
of the Fund who are not officers, directors, or employees of the Fund, the
Adviser or the Sub-Adviser or affiliates of any of them; fees of any pricing
service employed to value shares of the Fund; SEC fees, state Blue Sky
qualification fees and any foreign qualification fees; charges of custodians and
transfer and dividend disbursing agents; the Fund's proportionate share of
insurance premiums; outside auditing and legal expenses; costs of maintenance of
the Fund's existence; costs attributable to investor services, including,
without limitation, telephone and personnel expenses; costs of preparing and
printing prospectuses and statements of additional information for regulatory
purposes and for distribution to existing shareholders; costs of shareholders'
reports and meetings of the shareholders of the Fund and of the
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officers or Board of Directors of the Fund; and any extraordinary expenses.
13. Term of Agreement
This Agreement shall continue for an initial two-year period
commencing on the date first written above, and thereafter shall continue
automatically for successive annual periods, provided such continuance is
specifically approved at least annually by (a) the Board of Directors of the
Fund or (b) a vote of a "majority" (as defined in the 0000 Xxx) of the Fund's
outstanding voting securities, provided that in either event the continuance is
also approved by a majority of the Board of Directors who are not "interested
persons" (as defined the 0000 Xxx) of any party to this Agreement, by vote cast
in person at a meeting called for the purpose of voting on such approval. This
Agreement is terminable, without penalty, (i) by the Adviser on 60 (sixty) days'
written notice to the Fund and the Sub-Adviser, (ii) by the Board of Directors
of the Fund or by vote of holders of a majority of the Fund's shares on 60
(sixty) days' written notice to the Adviser and the Sub-Adviser, or (iii) by the
Sub-Adviser upon 60 (sixty) days' written notice to the Fund and the Adviser.
This Agreement will also terminate automatically in the event of its assignment
(as defined in the 0000 Xxx) by any party hereto. In the event of termination of
this Agreement for any reason, all records relating to the Fund kept by the
Sub-Adviser shall promptly be returned to the Adviser or the Fund, free from any
claim or retention of rights in such records by the Sub-Adviser. In the event
this Agreement is terminated or is not approved in the foregoing manner, the
provisions contained in paragraph numbers 4(c), 7, 8, 9 and 10 shall remain in
effect.
14. Amendments
No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought, and no amendment of this Agreement shall be effective
until approved by an affirmative vote of (a) the holders of a majority of the
outstanding voting securities of the Fund and (b) the Board of Directors of the
Fund, including a majority of Directors who are not "interested persons" (as
defined in the 0000 Xxx) of the Fund or of either party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval, if such approval is required by applicable law.
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15. Notices
All communications hereunder shall be given (a) if to the
Sub-Adviser, to Xxxxxx Capital Management, LLC, 1330 Avenue of the Americas,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (Attention: Xxxxxxx X. Held), telephone:
(000) 000-0000, telecopy: (000) 000-0000, (b) if to the Adviser, to Credit
Suisse Asset Management, LLC, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 (Attention: President), telephone: (000) 000-0000, telecopy: (212)
878-9351, and (c) if to the Fund, c/o Credit Suisse Asset Management, LLC, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, telephone: (000) 000-0000,
telecopy: (000) 000-0000 (Attention: President).
16. Choice of Law
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York in the United States,
including choice of law principles; provided that nothing herein shall be
construed in a manner inconsistent with the 1940 Act, the Advisers Act or any
applicable rules, regulations or orders of the SEC.
17. Miscellaneous
(a) The captions of this Agreement are included for
convenience only and in no way define or limit any of the provisions herein or
otherwise affect their construction or effect.
(b) If any provision of this Agreement shall be held or
made invalid by a court decision, by statute or otherwise, the remainder of this
Agreement shall not be affected thereby and, to this extent, the provisions of
this Agreement shall be deemed to be severable.
(c) Nothing herein shall be construed to make the
Sub-Adviser an agent of the Adviser or the Fund.
(d) This Agreement may be executed in counterparts, with
the same effect as if the signatures were upon the same instrument.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
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Very truly yours,
CREDIT SUISSE ASSET MANAGEMENT, LLC
By: /s/Xxx Xxxxxx
-------------
Name: Xxx Xxxxxx
Title: General Counsel
WARBURG, XXXXXX GLOBAL POST-VENTURE
CAPITAL FUND, INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: President
XXXXXX CAPITAL MANAGEMENT, LLC
By: Signature Illegible
Name:
Title:
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