Exhibit 23(d)(3)
SUB-ADVISORY AGREEMENT
March 1, 2000
Fiduciary International, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Re: Sub-Advisory Agreement for Xxxxx International Total Return Fund,
An Authorized Series of Xxxxx International Series, Inc.
Gentlemen:
This is to confirm that Xxxxx Selected Advisers, L.P. ("DSA") is
retaining you as Investment Sub-Adviser for the portfolio of the International
Total Return Fund (the "Fund") of Xxxxx International Series, Inc. (the
"Company").
This letter sets forth the terms and conditions of your retention. If
they are acceptable to you, please acknowledge in the space provided. Upon your
acceptance, the retention and the mutual obligations in respect thereto shall be
effective as provided herein. The terms and conditions are as follows:
1. Investment Services. You shall act as the Investment Sub-Adviser for
the Fund and will manage the investment and reinvestment of the assets of the
Fund subject to the supervision of the Board of Directors of the Company, DSA,
which serves as Adviser to the Company, and to any applicable provisions as in
effect from time to time of (a) the Articles of Incorporation and Bylaws of the
Company, (b) the prospectus, statement of additional information, and other
information set forth in the Fund's registration documents under the Securities
Act of 1933 (the "1933 Act") and the Investment Company Act of 1940 (the "1940
Act"), including any supplements thereto, and (c) the Investment Advisory
agreement between DSA and the Company (the "Investment Advisory Agreement") in
respect to the Fund and the Company's Code of Ethics. You acknowledge that you
have received copies of the above documents as in effect on the date of your
acceptance of this letter. The undersigned agrees that it will promptly deliver
to you any amendments, changes or additions of or to these documents. Without
limitation, you agree that all securities transactions will conform to (a) the
stated objectives and policies of the Fund, (b) the brokerage policies set forth
in the Investment Advisory Agreement (which are hereby incorporated by reference
herein) and the registration documents, and (c) those investment and brokerage
policies directed by the Board of Directors of the Company or any committee
thereof, that have been provided to you.
2. Independent Contractor. You shall be an independent contractor.
Unless otherwise expressly provided or authorized hereunder, or by the Board of
Directors of Company, you have no authority to represent the Company or the Fund
in any way or otherwise be an agent of the
Company or the Fund. You shall also not represent or be the agent of the
undersigned except as expressly provided or authorized hereunder, or as
authorized by the undersigned in any other writing.
3. Reports and Records. You agree to provide DSA with any reasonable
reports, analyses or other documentation DSA requires to carry out its
responsibilities under its Investment Advisory Agreement with the Fund,
including those related to the placement of security transactions, its
administrative responsibilities, and its responsibility to monitor compliance
with stated investment objectives, policies and limitations and the investment
performance of the Fund. You agree, directly or through an agent, to provide
daily information with respect to the portfolio transactions of the Fund to DSA.
You agree to provide all documentation reasonably required by DSA to maintain
the Fund's accounting records in accordance with the 1940 Act and the Investment
Advisers Act of 1940 (the "Advisers Act") and the regulations issued thereunder,
and to preserve copies of all documents and records related to asset
transactions, positions and valuations related to the Fund in the manner and for
the periods prescribed by such regulations. You agree that all documents and
records maintained by you with respect to the Fund, exclusively relating to the
Fund, are the property of the Company and will be surrendered to DSA or the
Company upon the request of either. You agree to provide information and to
allow inspection of such documents and records at reasonable times by any
authorized representative of DSA, the Company's Board of Directors or any
committee thereof, the Company's independent public accountants, or appropriate
regulatory authorities.
4. Make Personnel Available. You agree to make your personnel engaged
in activities on behalf of the Fund available at reasonable times for
consultations with DSA personnel and the Company's Board of Directors, or any
committee thereof, including attendance at their meetings, wherever situated.
Travel, meals and lodging expenses for such purposes shall be reimbursed.
5. Facilities, Equipment, and Personnel. You agree to provide office
facilities, equipment and personnel for carrying out your duties hereunder at
your own expense except as specifically provided hereunder.
6. Non-Exclusive Agreement. It is agreed that your services are not to
be deemed exclusive and you shall be free to render similar or other services to
others.
7. Standard of Care and Liability (a) Neither DSA nor you, nor any
officers, directors, employees, agents, controlling persons, assigns or
directors of the Company shall be liable for any error of judgment or law, or
for any loss suffered by the Company or its shareholders in connection with the
matters to which this Agreement relates, except that no provision of this
Agreement shall be deemed to protect DSA or you against any liability to the
Company or its shareholders to which DSA or you might otherwise be subject by
reason of any willful misconduct, gross negligence, or actions taken in bad
faith in the discharge of your respective obligations and performance of your
respective duties under this Agreement.
(b) Notwithstanding Section 7(a) of this Agreement, DSA agrees to
indemnify and hold harmless you and any affiliated person (except the Company),
and each person, if any, who, within the meaning of Section 15 of the 1933 Act
controls ("Controlling Person") you (all of such persons
being referred to as "Sub-Adviser Indemnified Persons") against any and all
losses, claims, damages, liabilities (excluding salary charges of your
employees, officers or partners), or litigation (including legal and other)
expenses to which a Sub-Adviser Indemnified Person may become subject under the
1933 Act, the 1940 Act, the Advisers Act, any other statute, common law or
otherwise, arising out of DSA's responsibilities to the Company which (1) may be
based upon any untrue statement or alleged untrue statement of a material fact
supplied by or which is the responsibility of DSA and contained in the
Registration Statement or prospectus or statement of additional information
covering shares of the Fund, or any amendment thereof or any supplement thereto,
or the omission or alleged omission or failure to state therein a material fact
known or which should have been known to DSA and was required to be stated
therein or necessary to make the statements therein not misleading, unless such
statement or omission was made in reliance upon information furnished to DSA or
the Company or to any person affiliated with DSA by a Sub-Adviser Indemnified
Person, in writing, for inclusion in the Registration Statement or prospectus or
statement of additional information; or (2) may be based upon a failure by DSA
to comply with, or a breach of, any provision of this Agreement or any other
agreement with the Fund; or (3) may be based upon misfeasance or negligence by
DSA in the discharge of its duties and performance of its obligations under this
Agreement or any other agreement with the Fund; provided, however, that in no
case shall the indemnity in favor of the Sub-Adviser Indemnified Person be
deemed to protect such person against any liability to which any such person
would otherwise be subject by reason of any misfeasance or negligence in the
discharge of its obligations and the performance of its duties under this
Agreement.
(c) Notwithstanding Section 7(a) of this Agreement, you agree to
indemnify and hold harmless DSA, any person affiliated with DSA (except the
Company), and each person, if any, who, within the meaning of the 1933 Act
controls ("Controlling Person") DSA (all of such persons being referred to as
"Adviser Indemnified Persons") against any and all losses, claims, damages,
liabilities (excluding salary charges of employees, officers or partners of
DSA), or litigation (including legal and other) expenses to which an Adviser
Indemnified Person may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, any other statute, common law or otherwise, arising out of your
responsibilities as a sub-investment adviser to the Fund which (1) may be based
upon any untrue statement or alleged untrue statement of a material fact
supplied by you for inclusion in the Registration Statement or prospectus or
statement of additional information covering shares of the Fund, or any
amendment thereof or any supplement thereto, or, with respect to a material fact
supplied by you for inclusion in the Registration Statement or prospectus or
statement of additional information, the omission or alleged omission or failure
to state therein a material fact known or which should have been known to you
and was required to be stated therein or necessary to make the statements
therein not misleading, unless such statement or omission was made in reliance
upon information furnished to you, or the Company, or to any person affiliated
with you or the Company by an Adviser Indemnified Person; or (2) may be based
upon a failure by you to comply with, or a breach of, any provision of this
Agreement or any other agreement with the Fund; or (3) may be based upon
misfeasance or negligence by you in the discharge of your duties and performance
of your obligations under this Agreement or any other agreement with the Fund;
provided, however, that in no case shall the indemnity in favor of the Adviser
Indemnified Person be deemed to protect such person against any liability to
which any such person would otherwise be subject by reason of any misfeasance or
negligence in the discharge of its obligations and the performance of its duties
under this Agreement.
(d) Neither DSA nor you shall be liable under this Section with respect
to any claim made against an Indemnified Person unless such Indemnified Person
shall have notified the indemnifying party in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon such Indemnified Person (or such
Indemnified Person shall have received notice of such service on any designated
agent), but failure to notify the indemnifying party of any such claim shall not
relieve the indemnifying party from any liability which it may have to the
Indemnified Person against whom such action is brought otherwise than on account
of this section. In case any such action is brought against the Indemnified
Person, the indemnifying party 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 party assumes the defense and the selection of counsel by
the indemnifying party to represent both the Indemnified Person and the
indemnifying party would result in a conflict of interest and would not, in the
reasonable judgment of the Indemnified Person, adequately represent the
interests of the Indemnified Person, the indemnifying party will, at its own
expense, assume the defense with counsel to the indemnifying party and, also at
its own expense, with separate counsel to the Indemnified Person which counsel
shall be satisfactory to the indemnifying party and the Indemnified Person. The
Indemnified Person will bear the fees and expenses of any additional counsel
retained by it, and the indemnifying party 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 party shall not have the right to compromise or settle the
litigation without the prior written consent of the Indemnified Person of the
compromise or settlement results, or may result, in a finding of wrongdoing on
the part of the Indemnified Person.
8. Compensation. DSA shall pay you a portion of the fee it receives
from the Company with respect to the Fund under the Investment Advisory
Agreement based upon the attached fee schedule, and shall reimburse expenses
expressly approved for reimbursement by DSA. You agree that neither the Company
nor the Fund is responsible or paying your sub-advisory fees. Payment for your
services and reimbursement of expenses approved by DSA shall be made monthly.
From time to time, with your express written approval, DSA may waive any part or
all of the fees due to it under the Investment Advisory Agreement for the period
specified in such writing. Such approval shall constitute a waiver by you of
your portion of the waived fees.
9. Effective Date. This Agreement shall become effective on the later
of _________________, 2000, or the first business day after the date this
Agreement is approved in accordance with the 1940 Act. Unless sooner terminated
as hereunder provided, it shall initially remain in effect for a period of two
years. Thereafter, subject to the termination provisions herein, this Agreement
shall continue in force from year to year thereafter, but only as long as such
continuance is specifically approved, at least annually, in the manner required
by the 1940 Act; provided, however, that if the continuation of this Agreement
is not approved, you may continue to serve in the manner and to the extent
permitted by the 1940 Act and the rules and regulations thereunder.
10. Termination. This Agreement shall automatically terminate
immediately in the event of its assignment (except as otherwise permitted by the
1940 Act or rules thereunder) or in the event of the termination of the
Investment Advisory Agreement. This Agreement may be terminated without penalty
at any time (a) upon sixty (60) days' written notice to you by DSA, or upon such
sixty (60) days' written notice to you by the Company pursuant to action by the
Board of Directors of the Company, or by the vote of a majority of the
outstanding voting securities of the Fund, or (b) upon sixty (60) or more days'
written notice by you to DSA and the Company. The terms "assignment" and "vote
of a majority of the outstanding voting securities" shall have the meaning set
forth in the 1940 Act and the rules and regulations thereunder. Termination of
this Agreement shall not affect your right to receive payments of the unpaid
balance of the compensation earned and reimbursable expenses incurred prior to
such termination.
11. Severability. If any provisions of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder
shall not be thereby affected.
11. Choice of Law. This Agreement shall be construed according to the
laws of the State of New York. It may be executed in counterparts each of which
shall be deemed an original and all of which together shall constitute one and
the same agreement.
Yours very truly,
Xxxxx Selected Advisers, L.P., by
Venture Advisers, Inc., General Partner
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Xxxxxxx Xxxx, Chief Operating Officer
ACCEPTED AND APPROVED this _______ day of _________________, _______.
Fiduciary International, Inc.
By
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SUB-ADVISORY FEE SCHEDULE FOR
FIDUCIARY INTERNATINAL, INC.
A monthly fee as of the last day of each month in each year based upon the
average daily value of net assets during a month for which the monthly fee is
calculated as follows:
Value of Average Daily Net
Assets of the Total Return
Monthly Rate Fund During the Month
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1/12 of 0.50% of First $250 Million
1/12 of 0.45% of Next $250 Million
1/12 of 0.40% of Amount in excess of $500 Million
