Exhibit D(5)
INVESTMENT SUBADVISORY AGREEMENT
Between
Northwestern Mutual Series fund, Inc.
and
X. XXXX PRICE ASSOCIATES, INC.
This INVESTMENT SUB-ADVISORY AGREEMENT, is dated as of _____________, 2003,
by and between Xxxxx Street Advisors, LLC (the "Adviser"), a limited liability
company organized and existing under the laws of the State of Delaware, and X.
Xxxx Price Associates, Inc. (the "Subadviser"), a corporation organized and
existing under the laws of the State of Maryland.
WHEREAS, the Adviser has entered into an Investment Advisory Agreement
dated as of the _____ day of ___________, 2003 ("Advisory Agreement") with
Northwestern Mutual Series Fund, Inc. ("Company"), which is engaged in business
as an open-end investment company registered under the Investment Company Act of
1940, as amended ("1940 Act"); and
WHEREAS, the Company is authorized to issue shares of the X. Xxxx Price
Equity Income Portfolio ("Fund"), a separate series of the Company;
WHEREAS, the Subadviser is engaged principally in the business of rendering
investment supervisory services and is registered as an investment adviser under
the Investment Advisers Act of 1940, as amended ("Advisers Act"); and
WHEREAS, the Adviser desires to retain the Subadviser to act as Subadviser
to furnish certain investment advisory services to the Adviser and the Fund and
the Subadviser is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual promises herein
set forth, the parties hereto agree as follows:
1. Appointment. Adviser hereby appoints the Subadviser as its investment
Subadviser with respect to the Fund for the period and on the terms set forth in
this Agreement. The Subadviser accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. Duties of the Subadviser.
A. Investment Subadvisory Services. Subject to the supervision of
the Company's Board of Directors ("Board") and the Adviser, the Subadviser shall
act as the investment Subadviser and will establish and maintain a discretionary
investment advisory account (the "Account") consisting of all or a portion of
the Fund's securities, funds or other assets contributed, or
liabilities allocated, (i) as the Adviser shall initially designate for the
purposes of opening this Account, (ii) as the Adviser may from time to time
designate in writing to Subadviser and (iii) as the Adviser may substitute
pursuant to this Agreement. The Subadviser shall supervise and direct the
investments of the Account in accordance with the Fund's investment objectives,
policies, and restrictions as provided in the Fund's Prospectus and Statement of
Additional Information, as currently in effect and as amended or supplemented
from time to time (hereinafter referred to as the "Prospectus"), and such other
limitations as the Fund may impose by notice in writing to the Subadviser. The
Subadviser shall obtain and evaluate such information relating to the economy,
industries, businesses, securities markets, and securities as it may deem
necessary or useful in the discharge of its obligations hereunder and shall
formulate and implement a continuing program for the management of the assets
and resources of the Account in a manner consistent with the Fund's investment
objective(s), policies, and restrictions. In furtherance of this duty, the
Subadviser, on behalf of the Fund, is authorized, in its discretion and without
prior consultation with the Fund or the Adviser, to:
(1) buy, sell, exchange, convert, lend, and otherwise trade in any
stocks, bonds, and other securities or assets;
(2) place orders and negotiate the commissions for the execution of
transactions in securities or other assets with or through such brokers,
dealers, underwriters or issuers as the Subadviser may select;
(3) vote proxies, exercise conversion or subscription rights, and
respond to tender offers and other consent solicitations with respect to
the issuers of securities in which Account assets may be invested provided
such materials have been forwarded to the Subadviser in a timely fashion by
the Fund's custodian;
(4) maintain all or part of the Account's uninvested assets in
short-term income producing instruments for such periods of time as shall
be deemed reasonable and prudent by the Subadviser, including, but not
limited to, investments in Reserve Investment Fund or Government Reserve
Investment Fund which are internal money market funds available for use
only by clients of the Subadviser for short-term investments;
(5) instruct the Fund custodian to deliver for cash received,
securities or other cash and/or securities instruments sold, exchanged,
redeemed or otherwise disposed of from the Fund, and to pay cash for
securities or other cash and/or securities instruments delivered to the
custodian and/or credited to the Fund upon acquisition of the same for the
Fund; and
(6) generally, perform any other act necessary to enable the
Subadviser to carry out its obligations under this Agreement.
B. Further Duties of Subadviser. In all matters relating to the
performance of this Agreement, the Subadviser shall act in conformity with the
Company's Articles of Incorporation, By-Laws, and currently effective
Registration Statement (as defined below) and with the written instructions and
directions of the Board and the Adviser, and shall manage the Account to comply
with the requirements of the 1940 Act, the Advisers Act, the rules thereunder,
and all other applicable federal and state laws and regulations. The Subadviser
shall not be responsible for compliance with such requirements with respect to
any portion of the Fund's assets not allocated to the Account.
3. Compensation. For the services provided and the expenses assumed by
the Subadviser pursuant to this Agreement, the Subadviser shall receive a
monthly investment management fee as set forth in Schedule A, attached hereto
and incorporated herein by reference. The management fee shall be payable
monthly to the Subadviser on or before the 5th day of the next succeeding
calendar month and shall be accompanied by a worksheet which shows the basis for
the fee calculation. If this Agreement becomes effective or terminates before
the end of any month, the investment management fee for the period from the
effective date to the end of such month or from the beginning of such month to
the date of termination, as the case may be, shall be prorated according to the
proration which such period bears to the full month in which such effectiveness
or termination occurs.
4. Duties of the Adviser.
A. The Adviser shall continue to have responsibility for all
services to be provided to the Fund pursuant to the Advisory Agreement and shall
oversee and review the Subadviser's performance of its duties under this
Agreement.
B. The Adviser has furnished the Subadviser with copies of each of
the following documents and will furnish to the Subadviser at its principal
office all future amendments and supplements to such documents, if any, as soon
as practicable after such documents become available:
(1) The Articles of Incorporation of the Company, as filed with the
State of Maryland, as in effect on the date hereof and as amended from time
to time ("Articles");
(2) The By-Laws of the Company as in effect on the date hereof and as
amended from time to time ("By-Laws");
(3) Certified resolutions of the Board of the Company authorizing the
appointment of the Adviser and the Subadviser and approving the form of the
Advisory Agreement and this Agreement;
(4) The Company's Registration Statement under the 1940 Act and the
Securities Act of 1933, as amended, on Form N-1A, as filed with the
Securities and Exchange Commission ("SEC") relating to the Fund and its
shares and all amendments thereto ("Registration Statement");
(5) The Notification of Registration of the Company under the 1940
Act on Form N-8A as filed with the SEC and any amendments thereto;
(6) The Fund's Prospectus (as defined above); and
(7) A certified copy of any financial statement or report prepared
for the Fund by certified or independent public accountants, and copies of
any financial statements or reports made by the Fund to its shareholders or
to any governmental body or securities exchange.
The Adviser shall furnish the Subadviser with any further documents, materials
or information that the Subadviser may reasonably request to enable it to
perform its duties pursuant to this Agreement.
C. During the term of this Agreement, the Adviser shall furnish to
the Subadviser at its principal office all prospectuses, proxy statements,
reports to shareholders, sales literature, or other material prepared for
distribution to shareholders of the Fund or the public, which refer to the
Subadviser or its clients in any way, at a reasonable time prior to the use
thereof, and the Adviser shall not use any such materials if the Subadviser
reasonably objects in writing five business days (or such other time as may be
mutually agreed) after receipt thereof. The Adviser shall ensure that materials
prepared by employees or agents of the Adviser or its affiliates that refer to
the Subadviser or its clients in any way are consistent with those materials
previously approved by the Subadviser as referenced in the preceding sentence.
5. Brokerage.
A. The Subadviser agrees that, in placing orders with broker-dealers
for the purchase or sale of portfolio securities, it shall attempt to obtain
quality execution at favorable security prices; provided that, on behalf of the
Fund, the Subadviser may, in its discretion, agree to pay a broker-dealer that
furnishes brokerage or research services as such services are defined under
Section 28(e) of the Securities Exchange Act of 1934, as amended ("1934 Act"), a
higher commission than that which might have been charged by another
broker-dealer for effecting the same transactions, if the Subadviser determines
in good faith that such commission is reasonable in relation to the brokerage
and research services provided by the broker-dealer, viewed in terms of either
that particular transaction or the overall responsibilities of the Subadviser
with respect to the accounts as to which it exercises investment discretion (as
such term is defined under Section 3(a)(35) of the 1934 Act). In no instance
will portfolio securities be purchased from or sold to the Subadviser, or any
affiliated person thereof, except in accordance with the federal securities laws
and the rules and regulations thereunder.
B. On occasions when the Subadviser deems the purchase or sale of a
security to be in the best interest of the Fund as well as other clients of the
Subadviser, the Subadviser, to the extent permitted by applicable laws and
regulations, may, but shall be under no obligation to, aggregate the securities
to be purchased or sold to attempt to obtain a more favorable price or lower
brokerage commissions and efficient execution. 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 Subadviser in the manner the Subadviser
considers to be the most equitable and consistent with its fiduciary obligations
to the Fund and to its other clients.
6. Ownership of Records. The Subadviser shall maintain all books and
records required to be maintained by the Subadviser pursuant to the 1940 Act and
the rules and regulations promulgated thereunder with respect to transactions on
behalf of the Fund. In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Subadviser hereby agrees (i) that all records that it maintains
for the Fund are the property of the Company, (ii) to preserve for the periods
prescribed by Rule 31a-2 under the 1940 Act any records that it maintains for
the Company and that are required to be maintained by Rule 31a-1 under the 1940
Act, and (iii) agrees to surrender promptly to the Company any records that it
maintains for the Company upon request by the Company; provided, however, the
Subadviser may retain copies of such records.
7. Reports. The Subadviser shall furnish to the Board or the Adviser, or
both, as appropriate, such information, reports, evaluations, analyses and
opinions as the Subadviser and the Board or the Adviser, as appropriate, may
mutually agree upon from time to time.
8. Services to Others Clients. Nothing contained in this Agreement shall
limit or restrict (i) the freedom of the Subadviser, or any affiliated person
thereof, to render investment management and corporate administrative services
to other investment companies, to act as investment manager or investment
counselor to other persons, firms, or corporations, or to engage in any other
business activities, or (ii) the right of any director, officer, or employee of
the Subadviser, who may also be a director, officer, or employee of the Company,
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 other business, whether of a
similar nature or a dissimilar nature.
9. Subadviser's Use of the Services of Others. The Subadviser may (at its
cost except as contemplated by Paragraph 5 of this Agreement) employ, retain, or
otherwise avail itself of the services or facilities of other persons or
organizations for the purpose of providing the Subadviser or the Company or
Fund, as appropriate, with such statistical and other factual information, such
advice regarding economic factors and trends, such advice as to occasional
transactions in specific securities, or such other information, advice, or
assistance as the Subadviser may deem necessary, appropriate, or convenient for
the discharge of its obligations hereunder or otherwise helpful to the Company
or the Fund, as appropriate, or in the discharge of Subadviser's overall
responsibilities with respect to the other accounts that it serves as investment
manager or counselor.
10. Limitation of Liability of the Subadviser. Neither the Subadviser nor
any of its officers, directors, or employees, nor any person performing
executive, administrative, trading, or other functions for the Company, the Fund
(at the direction or request of the Subadviser) or the Subadviser in connection
with the Subadviser's discharge of its obligations undertaken or reasonably
assumed with respect to this Agreement, shall be liable for (i) any error of
judgment or mistake of law or for any loss suffered by the Company or Fund or
(ii) any error of fact or mistake of law contained in any report or data
provided by the Subadviser, except for any error, mistake or loss resulting from
willful misfeasance, bad faith, or gross negligence in the performance of its or
his duties on behalf of the Company or Fund or from reckless disregard by the
Subadviser or any such person of the duties of the Subadviser pursuant to this
Agreement.
11. Representations of Subadviser. The Subadviser represents, warrants,
and agrees as follows:
A. The 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 met, and will 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; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; and (v) will immediately notify the Adviser of the occurrence of any
event that would disqualify the Subadviser from serving as an investment adviser
of an investment company pursuant to Section 9(a) of the 1940 Act or otherwise.
B. The Subadviser has adopted a written code of ethics complying
with the requirements of Rule 17j-1 under the 1940 Act and, if it has not
already done so, will provide the Adviser and the Company with a copy of such
code of ethics, together with evidence of its adoption.
C. The Subadviser has provided the Adviser and the Company with a
copy of its Form ADV as most recently filed with the SEC and will, promptly
after filing any amendment to its Form ADV with the SEC, furnish a copy of such
amendment to the Adviser.
12. Term of Agreement. This Agreement shall become effective upon the date
first above written, provided that this Agreement shall not take effect unless
it has first been approved (i) by a vote of a majority of those directors of the
Company who are not parties to this Agreement or interested persons of any such
party, cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by vote of a majority of the Fund's outstanding voting
securities. Unless sooner terminated as provided herein, this Agreement shall
continue in effect for two years from its effective date. Thereafter, this
Agreement shall continue in effect from year to year, with respect to the Fund,
subject to the termination provisions and all other terms and conditions hereof,
so long as such continuation shall be specifically approved at least annually
(a) by either the Board, or by vote of a majority of the outstanding voting
securities of the Fund; (b) in either event, by the vote, cast in person at a
meeting called for the purpose of voting on such approval, of a majority of the
directors of the Company who are not parties to this Agreement or interested
persons of any such party; and (c) the Subadviser shall not have notified the
Company, in writing, at least 60 days prior to such approval that it does not
desire such continuation. The Subadviser shall furnish to the Company, promptly
upon its request, such information as may reasonably be necessary to evaluate
the terms of this Agreement or any extension, renewal, or amendment hereof.
13. Termination of Agreement. Notwithstanding the foregoing, this
Agreement may be terminated at any time, without the payment of any penalty, by
vote of the Board or by a vote of a majority of the outstanding voting
securities of the Fund on at least 60 days' prior written notice to the
Subadviser. This Agreement may also be terminated by the Adviser: (i) on at
least 60 days' prior written notice to the Subadviser, without the payment of
any penalty; (ii) upon material breach by the Subadviser of any of the
representations and warranties set forth in Paragraph 11 of this Agreement, if
such breach shall not have been cured within a 20-day period after notice of
such breach; or (iii) if the Subadviser becomes unable to discharge its duties
and obligations under this Agreement. The Subadviser may terminate this
Agreement at any time, without the payment of any penalty, on at least 60 days'
prior notice to the Adviser. This Agreement shall terminate automatically in the
event of its assignment or upon termination of the Advisory Agreement.
14. Amendment of Agreement. 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 material amendment of this Agreement shall be
effective until approved by vote of a majority of the Fund's outstanding voting
securities.
15. Miscellaneous.
A. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Maryland without giving effect to the conflicts of
laws principles thereof and the 1940 Act. To the extent that the applicable laws
of the State of Maryland conflict with the applicable provisions of the 1940
Act, the latter shall control.
B. Captions. The captions contained in this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
C. Entire Agreement. This Agreement represents the entire agreement
and understanding of the parties hereto and shall supersede any prior agreements
between the parties relating to the subject matter hereof, and all such prior
agreements shall be deemed terminated upon the effectiveness of this Agreement.
D. Interpretation. Nothing herein contained shall be deemed to
require the Company to take any action contrary to its Articles or By-Laws, or
any applicable statutory or regulatory requirement to which it is subject or by
which it is bound, or to relieve or deprive the Board of its responsibility for
and control of the conduct of the affairs of the Fund.
E. Definitions. Any question 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 of the 1940 Act and to interpretations thereof, if any, by the United
States 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 Act.
As used in this Agreement, the terms "majority of the outstanding voting
securities," "affiliated person," "interested person," "assignment," broker,"
"investment adviser," "net assets," "sale," "sell," and "security" shall have
the same meaning as such terms have in the 1940 Act, subject to such exemption
as may be granted by the SEC by any rule, regulation, or order. Where the effect
of a requirement of the federal securities laws reflected in any provision of
this Agreement is made less restrictive 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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
XXXXX STREET ADVISORS, LLC
Attest:
By:
-------------------------- --------------------------------
X. XXXX PRICE ASSOCIATES, INC
Attest:
By:
-------------------------- --------------------------------
SCHEDULE A
FEE SCHEDULE
X. Xxxx Price Equity Income Portfolio
------------------------- ----------------------
Band Sub-advisory fee
------------------------- ----------------------
0 - $500 million 0.40%
------------------------- ----------------------
$500 million plus 0.35%
------------------------- ----------------------
of average daily net assets of the Account
