INVESTMENT SUB-ADVISORY AGREEMENT
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This AGREEMENT is effective this 1st day of July, 2011, by and between
CURIAN CAPITAL, LLC, a Michigan limited liability company and registered
investment adviser ("Adviser"), Pacific Investment Management Company LLC, a
Delaware limited liability company and registered investment adviser
("Sub-Adviser") and Curian Series Trust, a Massachusetts business trust
("Trust").
WHEREAS, Adviser is the investment manager for the Trust, an open-end
management investment company registered under the Investment Company Act of
1940, as amended ("1940 Act");
WHEREAS, the Adviser represents that it has entered into an Investment
Advisory and Management Agreement ("Management Agreement") dated as of March 22,
2011, with the Trust; and
WHEREAS, Adviser desires to retain Sub-Adviser as Adviser's agent to
furnish investment advisory services to the investment portfolios of the Trust
listed on Schedule A hereto (the "Funds" or each a "Fund").
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. APPOINTMENT. Subject to the approval of the Board of Trustees of the
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Trust (the "Board of Trustees"), Adviser represents and warrants that it has
full legal power and authority to enter into this Agreement and to delegate
investment advisory services, and hereby appoints Sub-Adviser to provide certain
sub-investment advisory services to the Funds for the period and on the terms
set forth in this Agreement, and the appointment of Sub-Adviser hereunder is
permitted by Trust's and Adviser's governing documents and has been duly
authorized by all necessary corporate or other action. Adviser represents that
this Agreement has been duly authorized and will be binding upon Adviser.
Sub-Adviser accepts such appointment and agrees to furnish the services herein
set forth for the compensation herein provided.
In the event the Adviser designates one or more funds other than the Funds with
respect to which the Adviser wishes to retain the Sub-Adviser to render
investment advisory services hereunder, it shall notify the Sub-Adviser in
writing. If the Sub-Adviser is willing to render such services, it shall notify
the Adviser in writing, whereupon such fund shall become a Fund hereunder, and
be subject to this Agreement, all subject to the approval of the Board of
Trustees.
2. DELIVERY OF DOCUMENTS. Adviser has furnished, or will furnish, to
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Sub-Adviser copies properly certified or authenticated of each of the following
prior to the commencement of the Sub-Adviser's services:
a) the Trust's Agreement and Declaration of Trust, as filed with the
Secretary of State of The Commonwealth of Massachusetts on November 5, 2010
and all amendments thereto or restatements thereof (such Declaration, as
presently in effect and as it shall from time to time be amended or
restated, is herein called the "Declaration of Trust");
b) the Trust's By-Laws and amendments thereto (together with the Declaration
of Trust, the "Trust Documents");
c) resolutions of the Board of Trustees authorizing the appointment of
Sub-Adviser and approving this Agreement;
d) the Trust's Notification of Registration on Form N-8A under the 1940 Act
as filed with the Securities and Exchange Commission (the "SEC");
e) the Trust's Registration Statement on Form N-1A under the Securities Act
of 1933, as amended ("1933 Act") and under the 1940 Act as filed with the
SEC and all amendments thereto insofar as such Registration Statement and
such amendments relate to the Funds; and
f) the Trust's most recent prospectus and Statement of Additional Information
for the Funds (collectively called the "Prospectus").
During the term of this Agreement, the Adviser agrees to furnish the Sub-Adviser
at its principal office all proxy statements, reports to shareholders, sales
literature or other materials prepared for distribution to shareholders of each
Fund, and Prospectus of each Fund, prior to the use thereof, and the Adviser
shall not use any such materials if the Sub-Adviser reasonably objects in
writing within five business days (or such other period as may be mutually
agreed) after receipt thereof. The Sub-Adviser's right to object to such
materials is limited to the portions of such materials that expressly relate to
the Sub-Adviser, its services and its clients. The Adviser agrees to use its
reasonable best efforts to ensure that materials prepared by its employees or
agents or its affiliates that refer to the Sub-Adviser or its clients in any way
are consistent with those materials previously approved by the Sub-Adviser as
referenced in the first sentence of this paragraph. The materials referenced in
the first sentence of this paragraph will be furnished to the Sub-Adviser by
e-mail, first class or overnight mail, facsimile transmission equipment or hand
delivery.
3. MANAGEMENT. Subject always to the supervision of the Adviser and the
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Board of Trustees, Sub-Adviser will furnish an investment program in respect of,
and shall have full investment authority and discretion for, all assets of the
Funds and place all orders for the purchase and sale of securities, including
foreign or domestic securities, and other property (including financial futures,
options of any type, commodities and other derivative instruments), all on
behalf of the Funds as the Sub-Adviser shall determine in accordance with each
Fund's investment restrictions, policies and Prospectus.
Sub-Adviser is authorized on behalf of the Funds to: (a) enter into agreements
and execute any documents (e.g., any derivatives documentation such as exchange
traded and over-the-counter, as applicable) required to make investments
pursuant to the Prospectus, which shall include any market and/or industry
standard documentation and the standard representations contained therein; and
(b) acknowledge the receipt of brokers' risk disclosure statements, electronic
trading disclosure statements and similar disclosures.
The Sub-Adviser further shall have the authority to instruct the custodian to:
(a) deliver or accept delivery of, upon receipt of payment or payment upon
receipt of, securities, commodities or other property underlying any futures or
options contracts, and other property purchased or sold in the Funds; and (b)
deposit margin or collateral which shall include the transfer of money,
securities, or other property to the extent necessary to meet the obligations of
the Funds with respect to any investments made pursuant to the Prospectus.
In the performance of its duties, Sub-Adviser will satisfy its fiduciary duties
to the Funds (as set forth below), and will monitor the Funds' investments, and
will comply with the provisions of the Trust's Declaration of Trust and By-Laws,
as amended from time to time, and the stated investment objectives, policies and
restrictions of the Funds, which may be amended from time to time, and
applicable tax and regulatory requirements. Sub-Adviser and Adviser will each
make its officers and employees available to the other from time to time at
reasonable times to review investment policies of the Funds and to consult with
each other regarding the investment affairs of the Funds. Sub-Adviser will
report to the Board of Trustees and to Adviser with respect to the
implementation of such program, as reasonably requested by the Board of Trustees
or the Adviser. Sub-Adviser, solely with respect to the assets of the Funds
that are under its management pursuant to this Agreement, is responsible for
compliance with the provisions of Section 851 the Internal Revenue Code of 1986,
as amended ("IRC").
The Sub-Adviser is expressly authorized to rely upon any and all instructions,
approvals and notices given on behalf of the Adviser by any one or more of those
persons designated as representatives of the Trust whose names, titles and
specimen signatures appear in Schedule C attached hereto. The Adviser shall
provide a Secretary Certificate, Incumbency Certificate, or similar document
indicating that the persons designated as representatives have the authority to
bind the Trust. The Adviser may amend such Schedule C from time to time by
written notice to the Sub-Adviser. The Sub-Adviser shall continue to rely upon
these instructions until notified by the Adviser to the contrary.
The Adviser agrees that the Sub-Adviser shall not be liable for any failure to
recommend the purchase or sale of any security on behalf of any Fund on the
basis of any information which might, in the Sub-Adviser's reasonable opinion,
constitute a violation of any federal or state laws, rules or regulations.
The Sub-Adviser further agrees that it:
a) will use the same skill and care in providing such services as it uses in
providing services to its other client mandates for which it has investment
responsibilities;
b) will comply with all applicable Rules and Regulations of the SEC in all
material respects and in addition will conduct its activities under this
Agreement in accordance with any applicable regulations of any governmental
authority pertaining to its investment advisory activities, including but
not limited to compliance with Rule 206(4)-7 under the Investment Advisers
Act of 1940, as amended (the "Advisers Act");
c) will report regularly to Adviser and to the Board of Trustees as
reasonably agreed between the Adviser and Sub-Adviser, or as reasonably
requested by the Board of Trustees, and will make appropriate persons
available for the purpose of reviewing with representatives of Adviser and
the Board of Trustees on a regular basis at reasonable times agreed to by
the Adviser and Sub-Adviser, or at such times as reasonably requested by
the Board of Trustees, including, without limitation, review of the general
investment strategies of the Funds, the performance of the Funds in
relation to the specified benchmarks and will provide various other reports
from time to time as reasonably requested by Adviser or the Board of
Trustees;
d) will provide to the Adviser (i) a monthly compliance checklist developed
for each Fund by Adviser and Sub-Adviser, (ii) quarterly reports developed
for each Fund by Adviser and Sub-Adviser, and (iii) other compliance and
reporting information as requested by the Adviser or the Board of Trustees
from time-to-time;
e) as a service provider to the Funds, will cooperate fully with the Chief
Compliance Officer of the Trust in the execution of his/her
responsibilities to monitor service providers to the Funds under Rule 38a-1
under the 1940 Act;
f) will prepare and maintain such books and records with respect to each
Fund's securities transactions in accordance with Section 7 herein, and
will furnish Adviser and the Board of Trustees such periodic and special
reports as the Adviser may reasonably request;
g) will prepare and cause to be filed in a timely manner Form 13F and, if
required, Schedule 13G with respect to securities held for the account of
the Funds subject to Sub-Adviser's supervision;
h) will act upon reasonable instructions from Adviser not inconsistent with
the fiduciary duties and investment objectives hereunder;
i) will treat confidentially and as proprietary information of the Trust all
such records and other information relative to the Trust maintained by the
Sub-Adviser, and will not use such records and information for any purpose
other than performance of its responsibilities and duties hereunder, except
after prior notification to and approval in writing by the Trust, which
approval 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, when requested to divulge such information by duly
constituted authorities, or when so requested by Trust, provided, however,
that notwithstanding the foregoing, Sub-Adviser may disclose such
information as required by applicable law, regulation or upon request by a
regulator or auditor of Sub-Adviser;
j) will have the sole authority and responsibility to exercise whatever
powers the Adviser may possess with respect to any of its assets held in
the Funds, including, but not limited to, the right to vote proxies, the
power to exercise rights, options, warrants, conversion privileges, and
redemption privileges, and to tender securities pursuant to a tender offer,
consistent with the Sub-Adviser's fiduciary duties hereunder;
k) may not consult with any other sub-adviser of the Trust, if any, or the
sub-adviser to any other investment company (or separate series of an
investment company) managed by the Adviser concerning the Trust's
transactions in securities or other assets for any investment portfolio of
the Trusts, including the Funds, except for the purpose of complying with
the conditions of Rule 12d3-1 (a) and (b) under the 1940 Act, and except
that such consultations are permitted between the current and successor
sub-advisers of the Funds in order to effect an orderly transition of
sub-advisory duties so long as such consultations are not concerning
transactions prohibited by Section 17(a) of the 1940 Act;
l) will provide reasonable assistance to the Adviser or the Trust's
custodian, as the case may be, in determining the value of any portfolio
security. In addition, the Sub-Adviser shall provide the Trust's custodian
on each business day with information relating to all transactions
concerning each Fund's assets under Sub-Adviser's supervision, and shall
provide Adviser with such information upon the reasonable request of the
Adviser;
m) immediately notify the Adviser and the Trust to the extent required by
applicable law in the event that the Sub-Adviser or any of its affiliates:
(1) becomes aware that it is subject to a statutory disqualification that
prevents the Sub-Adviser from serving as an investment adviser pursuant to
this Agreement; or (2) becomes aware that it is the subject of an
administrative proceeding or enforcement action by the SEC or other
regulatory authority. The Sub-Adviser further agrees to notify the Trust
and the Adviser immediately of any material fact known to the Sub-Adviser
respecting or relating to the Sub-Adviser that would make any written
information previously provided to the Adviser or the Trust materially
inaccurate or incomplete or if any such written information becomes untrue
in any material respect; and
n) immediately notify the Adviser and the Trust if the Sub-Adviser suffers a
material adverse change in its business that would materially impair its
ability to perform its relevant duties for a Fund. For the purposes of this
paragraph, a "material adverse change" shall include, but is not limited
to, a material loss of assets or accounts under management or the departure
of senior investment professionals to the extent such professionals are not
replaced promptly with professionals of comparable experience and quality.
4. CUSTODY OF ASSETS. Title to all investments shall be held in the name of
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the Funds, provided that for convenience in buying, selling and exchanging
securities (stocks, bonds, commercial paper, etc.), title to such securities may
be held in the name of the Trust's custodian bank, or its nominee. All cash and
the indicia of ownership of all other investments shall be held by the Trust's
custodian bank. Sub-Adviser shall not act as custodian of the assets held in the
Funds and shall at no time have the right to physically possess the assets of
the Funds or have the assets registered in its own name or the name of its
nominee, nor shall Sub-Adviser in any manner acquire or become possessed of any
income, whether in kind or cash, or proceeds, whether in kind or cash,
distributable by reason of selling, holding or controlling such assets of the
Funds. In accordance with the preceding sentence, Sub-Adviser shall have no
responsibility with respect to the collection of income, physical acquisition or
the safekeeping of the assets of the Funds. All such duties of collection,
physical acquisition and safekeeping shall be the sole obligation of the
custodian. The Sub-Adviser shall not be liable for any act or omission of such
custodian, except by reason of the Sub-Adviser's willful misfeasance, bad faith,
gross negligence, fraud, reckless disregard or willful misconduct in connection
with any actions that Sub-Adviser has taken or should have taken with respect to
the custodian.
5. BROKERAGE. The Sub-Adviser is responsible for decisions to buy and sell
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securities for each Fund, broker-dealer selection, and negotiation of brokerage
commission rates. Sub-Adviser shall have the express authority to negotiate,
open, continue and terminate brokerage accounts and other brokerage arrangements
with respect to all portfolio transactions entered into by Sub-Adviser on behalf
of the Funds. Adviser shall provide such assistance to the Sub-Adviser in
setting up and maintaining brokerage accounts and other accounts as the
Sub-Adviser shall reasonably request to allow for the purchase or sale of
various forms of securities and instruments pursuant to this Agreement.
Sub-Adviser will provide copies of all such agreements to the Adviser upon the
Adviser's reasonable request. It is the Sub-Adviser's general policy in
selecting a broker to effect a particular transaction to seek to obtain "best
execution," which means prompt and efficient execution of the transaction at the
best obtainable price and taking into account all relevant factors and
considerations of the specific transaction, with payment of commissions which
are reasonable in relation to the value of the brokerage services provided by
the broker. Consistent with this policy, and when selecting a broker the
Sub-Adviser will take relevant factors into consideration, including (as
applicable), but not limited to: the best price available; the reliability,
integrity and financial condition of the broker-dealer; the size of and
difficulty in executing the order; and the value of the expected contribution of
the broker-dealer to the investment performance of the applicable Fund on a
continuing basis. Subject to such policies and procedures as the Board of
Trustees may determine, the Sub-Adviser shall have discretion to effect
investment transactions for each Fund through broker-dealers (including, to the
extent permissible under applicable law, broker-dealer affiliates) who provide
brokerage and/or research services, as such services are defined in Section
28(e) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
as interpreted by the SEC, and to cause such Fund to pay any such broker-dealers
an amount of commission for effecting a portfolio investment transaction in
excess of the amount of commission another broker-dealer would have charged for
effecting that transaction, if the Sub-Adviser determines in good faith that
such amount of commission is reasonable in relation to the value of the
brokerage or research services provided by such broker-dealer, viewed in terms
of either that particular investment transaction or the Sub-Adviser's overall
responsibilities with respect to such Fund and other accounts to which the
Sub-Adviser exercises investment discretion (as such term is defined in Section
3(a)(35) of the 1934 Act). Allocation of orders placed by the Sub-Adviser on
behalf of a Fund to such broker-dealers shall be in such amounts and proportions
as the Sub-Adviser shall determine in good faith in conformity with its
responsibilities under applicable laws, rules and regulations. The Sub-Adviser
will submit reports on such allocations to the Adviser as reasonably requested
by the Adviser, in such form as may be mutually agreed to by the parties hereto,
indicating the broker-dealers to whom such allocations have been made and the
basis therefore. The Sub-Adviser shall not be liable for any act or omission of
any brokerage firm or firms or counterparties designated by the Adviser or
chosen by the Sub-Adviser with reasonable care except by reason of the
Sub-Adviser's willful misfeasance, bad faith, gross negligence, fraud, reckless
disregard or willful misconduct in connection with selecting such brokerage
firms or firms or counterparties.
6. EXPENSES. The Sub-Adviser shall bear all expenses incurred by it in
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connection with the performance of its services under this Agreement. Each Fund
or the Adviser will bear certain other expenses to be incurred in its operation,
including, but not limited to, investment advisory fees, and administration
fees; fees for necessary professional and brokerage services; costs relating to
local administration of securities; and fees for any pricing services. All
other expenses not specifically assumed by the Sub-Adviser hereunder or by the
Adviser under the Management Agreement are borne by the applicable Fund or the
Trust.
7. BOOKS AND RECORDS. In compliance with the requirements of Rule 31a-3
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under the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request,
copies of which may be retained by the Sub-Adviser. 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 related to
each Fund's portfolio transactions. The Adviser shall maintain all books and
records not related to the Fund's portfolio transactions.
8. COMPENSATION. For the services provided and the expenses assumed
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pursuant to this Agreement, each Fund will pay the Sub-Adviser, and the
Sub-Adviser agrees to accept as full compensation therefore, a sub-advisory fee
accrued daily and payable monthly on the average daily net assets in the Funds
in accordance with Schedule B hereto.
9. SERVICES TO OTHERS. Adviser understands, and has advised the Board of
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Trustees, that Sub-Adviser now acts, or may in the future act, as an investment
adviser to fiduciary and other managed accounts, and as investment adviser or
sub-investment adviser to other investment companies or accounts. Adviser has
no objection to Sub-Adviser acting in such capacities, provided that whenever
the Fund and one or more other investment advisory clients of Sub-Adviser have
available funds for investment, investments suitable and appropriate for each
will be allocated in a manner reasonably believed by Sub-Adviser to be fair and
equitable to each. Sub-Adviser may group orders for a Fund with orders for
other funds and accounts to obtain the efficiencies that may be available on
larger transactions when it reasonably determines that investment decisions are
appropriate for each participating account. Sub-Adviser cannot assure that such
policy will not adversely affect the price paid or received by a Fund. Adviser
recognizes, and has advised the Board of Trustees, that in some cases this
procedure may adversely affect the size and the opportunities of the position
that the participating Fund may obtain in a particular security. In addition,
Adviser understands, and has advised the Board of Trustees, that the persons
employed by Sub-Adviser to assist in Sub-Adviser's duties under this Agreement
will not devote their full time to such service, and nothing contained in this
Agreement will be deemed to limit or restrict the right of Sub-Adviser or any of
its affiliates to engage in and devote time and attention to other businesses or
to render services of whatever kind or nature.
Notwithstanding any other provision to the contrary, the Sub-Adviser shall have
no obligation to perform the following services or to have employees of the
Sub-Adviser perform the following roles, as applicable: a) shareholder services
or support functions, such as responding to shareholders' questions about a Fund
or its investments or strategies; b) providing employees of the Sub-Adviser to
serve as officers of a Fund; or c) providing employees of the Sub-Adviser to
serve as the Fund's Chief Compliance Officer and associated staff.
10. LIMITATION OF LIABILITY.
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(a) Sub-Adviser, its officers, directors, employees, agents or affiliates will
not be subject to any liability to the Adviser or the Funds or their
directors, officers, employees, agents or affiliates for any act, omission,
error of judgment or mistake of law or for any loss suffered by the Funds,
any shareholder of the Funds or the Adviser either in connection with the
performance of Sub-Adviser's duties under this Agreement or its failure to
perform due to events beyond the reasonable control of the Sub-Adviser or
its agents, except for a loss resulting from Sub-Adviser's willful
misfeasance, or 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 Sub-Adviser makes no representation or warranty, express or implied,
that any level of performance or investment results will be achieved by the
Funds or that a Fund will perform comparably with any standard or index,
including other clients of the Sub-Adviser, whether public or private. The
Sub-Adviser shall not be deemed to have breached this Agreement or any
investment restrictions or policies applicable to a Fund in connection with
fluctuations arising from market movements and other events outside the control
of the Manager.
(c) The Sub-Adviser shall not be liable to the Adviser, the Funds or their
shareholders, or the Trust for any action taken or failure to act in good
faith reliance upon: (i) information, instructions or requests, whether
oral or written, with respect to the Funds made to the Sub-Adviser by a
duly authorized officer of the Adviser or the Trust; (ii) the advice of
counsel to the Trust; and (iii) any written instruction or certified copy
of any resolution of the Board; all except by reason of the Sub-Adviser's
willful misfeasance, bad faith, gross negligence, fraud, reckless disregard
or willful misconduct in connection with performing its responsibilities
hereunder.
(d) In any action in which the Sub-Adviser or any of its controlling persons,
or any shareholders, partners, directors, officers and/or employees of any
of the foregoing, are parties, the Adviser agrees to indemnify and hold
harmless the foregoing persons against any losses to which such persons may
become subject, insofar as such losses arise out of or are based upon the
Adviser's willful misfeasance, bad faith, gross negligence, fraud, reckless
disregard or willful misconduct in performing its responsibilities
hereunder, including without limitation the operation of a Fund, the
contents of the Funds' Prospectus, or the wrongful conduct of persons with
respect to the sale of interests in a Fund, provided that the loss, claim,
settlement, damage, charge, liability, cost or expense did not relate to,
was not based upon, or did not arise out of an act or omission of the
Sub-Adviser or any of its controlling persons, or any shareholders,
partners, directors, officers and/or employees constituting reckless
disregard, willful misfeasance, bad faith, gross negligence, fraud or
willful misconduct.
(e) Without limiting the generality of the foregoing, neither the Adviser nor
the Sub-Adviser will be liable for any indirect, special, incidental or
consequential damages.
11. INDEMNIFICATION. Adviser and the Sub-Adviser each agree to indemnify
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the other party (and each such party's affiliates, employees, directors and
officers), and Sub-Adviser further agrees to indemnify the Funds, against any
claim, damages, loss or liability (including reasonable attorneys' fees) arising
out of any third party claims brought against an indemnified party that are
found to constitute willful misfeasance or gross negligence on the part of the
indemnifying party.
12. DURATION AND TERMINATION. This Agreement will become effective as to a
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Fund upon execution or, if later, on the date that initial capital for such Fund
is first provided to it and, unless sooner terminated as provided herein, will
continue in effect for two years from the date of its execution. Thereafter, if
not terminated as to a Fund, this Agreement will continue in effect as to a Fund
for successive periods of 12 months, provided that such continuation is
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specifically approved at least annually by the Board of Trustees or by vote of a
majority of the outstanding voting securities of such Fund, and in either event
approved also by a majority of the Trustees of the Trust who are not interested
persons of the Trust, or of the Adviser, or of the Sub-Adviser. Notwithstanding
the foregoing, this Agreement may be terminated as to a Fund at any time,
without the payment of any penalty, on sixty days' written notice by the Trust
or Adviser, or on sixty days' written notice by the Sub-Adviser. This Agreement
will immediately terminate in the event of its assignment. (As used in this
Agreement, the terms "majority of the outstanding voting securities,"
"interested persons" and "assignment" have the same meaning of such terms as in
the 1940 Act.) Sections 10 and 11 herein shall survive the termination of this
Agreement.
13. REPRESENTATIONS AND AGREEMENTS OF THE ADVISER. Adviser acknowledges,
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represents and warrants that:
(a) The Trust intends to be a "qualified eligible person" ("QEP") as defined
in Commodity Futures Trading Commission Rule 4.7 ("CFTC Rule 4.7") and the
Adviser will promptly notify the Sub-Adviser once the Trust meets the QEP
definition. Following the Trust's qualification as a QEP, the Trust
consents to be treated as an "exempt account" under CFTC Rule 4.7 and the
Adviser will promptly notify the Sub-Adviser if the Trust ceases to be a
QEP. After qualifying as a QEP, the assets of a Fund may be invested in
futures contracts and the Adviser consents to the Sub-Adviser's use of the
alternate disclosure and recordkeeping standards under Commodity Futures
Trading Commission Rule 4.7 with respect to such futures trading;
(b) It is excluded from the definition of a commodity pool operator under CFTC
Rule 4.5, and in connection with such exemption has filed a notice of
eligibility and will provide the Sub-Adviser with a copy of such notice of
eligibility before the execution of this Agreement;
(c) The Adviser hereby acknowledges that not less than forty-eight (48) hours
before the date it has executed this Agreement, it received from the
Sub-Adviser a copy of the Sub-Adviser's most recent Form ADV, Part 1 as
filed with the Securities and Exchange Commission and Part II as required
by Rule 204-(3) of the Advisers Act;
(d) The Trust is a "qualified institutional buyer" ("QIB") as defined in Rule
144A under the Securities Act of 1933, as amended, and the Adviser will
promptly notify the Sub-Adviser if the Trust ceases to be a QIB;
(e) The assets in the Funds are free from all liens and charges and undertakes
that no liens or charges will arise from the acts or omissions of the
Adviser and the Trust which may prevent the Sub-Adviser from giving a first
priority lien or charge on the assets solely in connection with the
Sub-Adviser's authority to direct the deposit of margin or collateral to
the extent necessary to meet the obligations of the Funds with respect to
any investments made pursuant to the Prospectus; and
(f) The Adviser acknowledges that the Sub-Adviser is not the compliance agent
for the Funds or for the Adviser, and does not have access to all of the
Funds' books and records necessary to perform certain compliance testing.
To the extent that the Sub-Adviser has agreed to perform the services
specified in Section 3 hereof in accordance with applicable law (including
Section 851 of the IRC, the Act and the Advisers Act ("Applicable Law"))
and in accordance with the Trust Documents, policies and determinations of
the Board of Trustees of the Trust and the Adviser, and the Funds'
Prospectus (collectively the "Charter Requirements") the Sub-Adviser shall
perform such services based upon its books and records with respect to the
Funds, which comprise a portion of the Trust's books and records, and upon
written instructions received from the Funds, the Adviser or the Trust's
administrator, and shall not be held responsible under this Agreement so
long as it performs such services in accordance with this Agreement, the
Charter Requirements and Applicable Law based upon such books and records
and such instructions provided by the Funds, the Adviser or the Trust's
administrator. The Sub-Adviser shall be afforded a reasonable amount of
time to implement any such instructions (for example, if instructed not to
trade on behalf of securities of certain specified Adviser or the Trust's
affiliates, the Sub-Adviser shall be notified and afforded five business
days after receipt of such instruction to implement this trading
restriction).
14. OBLIGATIONS OF ADVISER. The Adviser agrees to provide or complete, as
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the case may be, the following prior to the commencement of the Sub-Adviser's
investment advisory services as specified under this Agreement:
(a) A list of first tier affiliates and second tier affiliates (i.e.,
affiliates of affiliates) of the Fund;
(b) A list of restricted securities for each Fund (including CUSIP, Sedol or
other appropriate security identification);
(c) A copy of the current compliance procedures for each Fund; and
(d) A list of legal and compliance contacts.
The Adviser also agrees to promptly update the above referenced items in order
to ensure their accuracy, completeness and/or effectiveness.
15. CONFIDENTIAL TREATMENT. All information and advice furnished by one
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party to the other party (including their respective agents, employees and
representatives) hereunder shall be treated as confidential and shall not be
disclosed to third parties, except as may be necessary to comply with applicable
laws, rules and regulations, subpoenas or court orders. It is understood that
any information or recommendation supplied by, or produced by, Sub-Adviser in
connection with the performance of its obligations hereunder is to be regarded
as confidential and for use only by the Adviser and the Trust. Without limiting
the foregoing, the Adviser and the Trust will only disclose portfolio
information in accordance with the Trust's portfolio information policy as
adopted by the Board of Trustees.
16. ENTIRE AGREEMENT; AMENDMENT OF THIS AGREEMENT. This Agreement
--------------------------------------------------
constitutes the entire agreement between the parties with respect to the Funds.
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.
17. NOTICE. Any notice under this Agreement shall be in writing, addressed
------
and delivered or mailed (postage prepaid) or sent via electronic mail or
facsimile to the other party at such address as designated herein.
a) TO ADVISER:
Curian Capital LLC
0000 Xxxxxxxxxx Xxx
Xxxxxx, XX 00000
Fax:
Attention: Xxxxxxx Xxxx
E-mail: xxxxxxx.xxxx@xxxxxx.xxx
-----------------------
b) TO SUB-ADVISER:
Pacific Investment Management Company LLC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Fax: 000-000-0000
Attention: General Counsel
E-mail: XXXXxxxxxx@xxxxx.xxx
--------------------
cc: Account Manager, Xxx Xxxxxxxx
E-mail: xxx.xxxxxxxx@xxxxx.xxx
c) TO THE TRUST:
Curian Series Trust
0000 Xxxxxxxxxx Xxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
E-mail: xxxxxxx.xxxx@xxxxxx.xxx
-----------------------
18. MISCELLANEOUS. The captions in this Agreement are included for
-------------
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement is held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement will be binding upon
and shall inure to the benefit of the parties hereto.
Sub-Adviser represents, and the Trust and the Adviser acknowledge and agree,
that Sub-Adviser is the sole owner of the names "Pacific Investment Management
Company LLC" and "PIMCO" and certain logos associated with such names (the
"PIMCO Marks"). The Trust and Adviser agree that the PIMCO Marks are the
valuable property of the Sub-Adviser and Sub-Adviser's affiliates. The Trust
and Adviser shall have the right to use the PIMCO Marks only with the prior
written approval of the Sub-Adviser, which approval shall not be unreasonably
withheld or delayed so long as this Agreement is in effect. PIMCO agrees that
the Trust and the Adviser have the right to use "PIMCO" in the names of the
Funds as set forth in Schedule A to this Agreement.
The Sub-Adviser acknowledges and agrees that the names "Curian Series Trust" and
Curian Capital, LLC, and abbreviations or logos associated with those names, are
the valuable property of the Adviser and its affiliates; that the Trust, has the
right to use such names, abbreviations and logos; and that the Sub-Adviser shall
use the names "Curian Series Trust", Curian Capital, LLC, and associated
abbreviations and logos, only in connection with the Sub-Adviser's performance
of its duties hereunder. Further, in any communication with the public and in
any marketing communications of any sort, the Sub-Adviser agrees to obtain prior
written approval from the Adviser before using or referring to "Curian Series
Trust" and the Adviser, or the Funds or any abbreviations or logos associated
with those names; provided that nothing herein shall be deemed to prohibit the
Sub-Adviser from referring to the performance of the Funds in the Sub-Adviser's
marketing material as long as such marketing material does not constitute "sales
literature" or "advertising" for the Funds, as those terms are used in the
rules, regulations and guidelines of the SEC and FINRA.
The name "Curian Series Trust" and "Trustees of Curian Series Trust" refer
respectively to the Trust created by, and the Trustees, as trustees but not
individually or personally, acting from time to time under, the Declaration of
Trust, to which reference is hereby made and a copy of which is on file at the
office of the Secretary of State of the Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of the "Curian Series Trust" entered in the
name or on behalf thereof by any of the Trustees, representatives or agents are
made not individually but only in such capacities and are not binding upon any
of the Trustees, Shareholders or representatives or agents of Trust personally,
but bind only the assets of Trust, and persons dealing with the Funds must look
solely to the assets of Trust belonging to such Fund for the enforcement of any
claims against the Trust.
19. REPRESENTATIONS AND WARRANTIES OF THE SUB-ADVISER. The Sub-Adviser
------------------------------------------------------
hereby represents that this Agreement does not violate any existing agreements
between the Sub-Adviser and any other party, it has all requisite authority to
enter into, execute, deliver and perform its obligations under this Agreement
and the performance of the Sub-Adviser's obligations under this Agreement does
not conflict with any law, regulation or order to which the Sub-Adviser is
subject.
The Sub-Adviser further represents and warrants that it is a duly registered
investment adviser under the Investment Advisers Act of 1940, as amended and has
provided to the Adviser a copy of its most recent Form ADV, Part 1 as filed with
the Securities and Exchange Commission, as well as a copy of its current Part II
of Form ADV.
The Sub-Adviser further represents that it has reviewed the initial, pre- and/or
post effective amendment(s) to the Registration Statement for the Funds filed
with the Securities and Exchange Commission that contains disclosure about the
Sub-Adviser, and represents and warrants that, with respect to the disclosure
about the Sub-Adviser or information relating 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 necessary
to make the statements contained therein not misleading.
20. APPLICABLE LAW. This Agreement shall be construed in accordance with
---------------
applicable federal law and the laws of the State of Michigan.
21. COUNTERPART SIGNATURES. This Agreement may be executed in several
-----------------------
counterparts, including via facsimile, each of which shall be deemed an original
for all purposes, including judicial proof of the terms hereof, and all of which
together shall constitute and be deemed one and the same agreement.
IN WITNESS WHEREOF, the Adviser, the Sub-Adviser and Trust have caused this
Agreement to be executed as of this 1st day of July, 2011.
PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION
("COMMISSION") IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS
ACCOUNT DOCUMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE
COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE
MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF
COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES
TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS TRADING PROGRAM OR THIS
ACCOUNT DOCUMENT.
CURIAN CAPITAL, LLC
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: President & CEO
PACIFIC INVESTMENT MANAGEMENT COMPANY LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
CURIAN SERIES TRUST
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: President & CEO
LIST OF SCHEDULES
-----------------
Schedule A Funds
Schedule B Compensation
Schedule C Designated Representatives
SCHEDULE A
DATED JULY 1, 2011
(Funds)
Curian/PIMCO Total Return Fund
Curian/PIMCO Income Fund
SCHEDULE B
DATED JULY 1, 2011
(Compensation)
CURIAN/PIMCO INCOME FUND (#7852)
--------------------------------
For the Curian/PIMCO Income Fund, Sub-Adviser's account #7852, the following fee
schedule shall apply:
CURIAN/PIMCO INCOME FUND - 7852
Average Daily Net Assets Annual Rate
------------------------ -----------
All Assets 0.25%
---------- -----
CURIAN/PIMCO TOTAL RETURN FUND (#6852)
--------------------------------------
For the Curian/PIMCO Total Return Fund, Sub-Adviser's account #6852, the
following fee schedule shall apply:
CURIAN /PIMCO TOTAL RETURN FUND - 6852
Average Daily Net Assets Annual Rate
------------------------ -----------
All Assets 0.25%*
---------- -----
* When aggregate net assets of Curian/PIMCO Total Return Fund, Curian/PIMCO
Income Fund, JNL/PIMCO Real Return Fund, and JNL/PIMCO Total Return Bond Fund
(Sub-Adviser's Accounts # 6852, 7852, 1852, and 852) falls below $3 Billion, the
annual rate asterisked above is applicable to all the amounts in the Curian /
PIMCO Total Return Fund (Sub-Adviser Account #6852).
CURIAN /PIMCO TOTAL RETURN FUND - 6852
Average Daily Net Assets Annual Rate
------------------------ -----------
Amounts $0 - $1 Billion 0.25%**
----------------------- -------
Amounts over $1 Billion 0.225%**
----------------------- --------
** When aggregate net assets of Curian/PIMCO Total Return Fund, Curian/PIMCO
Income Fund, JNL/PIMCO Real Return Fund, and JNL/PIMCO Total Return Bond Fund
(Sub-Adviser's Accounts # 6852, 7852, 1852, and 852) equals or exceeds $3
Billion, the annual rates double-asterisked above are applicable to all the
amounts in the Curian/PIMCO Total Return Fund (Sub-Adviser Account #6852). The
fee is computed based on the combined market value of the Total Return
portfolios of JNL and Curian (Sub-Adviser's Accounts # 852 and 6852), and
Sub-Adviser will aggregate Total Return assets to derive an average fee to be
applied to these Total Return portfolios (Sub-Adviser's Accounts # 852 and
6852).
"Fund" and "Funds" shall have the same meaning as set forth in the Agreement.
Aggregate Net Asset values and market value are determined by the Fund
Accountant.
SCHEDULE C
DATED JULY 1, 2011
(Designated Representatives of the Trust)
Name/Title Signature
* *
- -
*See the attached List of Authorized Persons
CURIAN SERIES TRUST
-------------------
LIST OF AUTHORIZED PERSONS
--------------------------
I, Xxxxx X. Xxxx, the Secretary of the Curian Series Trust, a business trust
organized under the laws of the Commonwealth of Massachusetts (the "Trust"), do
hereby certify that:
The following individuals have been duly authorized as Authorized Persons to
give Instructions on behalf of the Trust and each Fund thereof and the specimen
signatures set forth opposite their respective names are their true and correct
signatures:
NAME SIGNATURE
Xxxxxxx Xxxx /s/ Xxxxxxx Xxxx
Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
Xxxx Xxxxx /s/ Xxxx Xxxxx
Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
Xxxxxx Xxxxxxxxxxxxx /s/ Xxxxxx Xxxxxxxxxxxxx
Xxxxxx Childs /s/ Xxxxxx Childs
Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
Xxxx Xxxxxx /s/ Xxxx Xxxxxx
Xxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
Xxxxxx Xxxxx /s/ Xxxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx /s/ Xxxxxxxxx Xxxxxxxx
Xxxxxx XxXxxxxxxx /s/ Xxxxxx XxXxxxxxxx
Xxxx Xxxxx /s/ Xxxx Xxxxx
Xxxx Xxxxxx /s/ Xxxx Xxxxxx
Xxxx Xxxxx /s/ Xxxx Xxxxx
Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
Xxxxx Xxxx /s/ Xxxxx Xxxx
Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
CURIAN SERIES TRUST
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx, Secretary
Dated: March 8, 2011
