Item 77Q) 1. Exhibit to Item 77C, RS Global Natural Resources
Sub-Advisory Agreement
SUB-ADVISORY AGREEMENT
This Agreement (the "Agreement") is made this 1st day of
June, 2014, by and between RS Investment Management Co. LLC, a
Delaware limited liability company ("Adviser"), and SailingStone
Capital Partners LLC, a Delaware limited liability company
("Sub-adviser"). The Adviser and the Sub-adviser are each
referred to herein as a "Party" to this Agreement.
WHEREAS, the Adviser serves as investment adviser to RS
Global Natural Resources Fund ("Fund"), a series of shares of
beneficial interest of RS Investment Trust, a Massachusetts
business trust ("Trust"), pursuant to the RS Investment Trust
Amended and Restated Investment Advisory Agreement made as of
the 7th day of November, 2006 ("Investment Advisory
Agreement"); and
WHEREAS, Section 2 of the Investment Advisory Agreement
provides that the Adviser may, from time to time, delegate
certain responsibilities under the Investment Advisory
Agreement; and
WHEREAS, the Adviser desires to avail itself of the
services, advice, and assistance of the Sub-adviser in providing
investment advisory services to the Fund; and
WHEREAS, the Sub-adviser is registered under the Investment
Advisers Act of 1940, as amended ("Advisers Act"), and is engaged
in the business of rendering investment advisory services to
investment companies and other institutional clients and desires
to provide such services to the Adviser;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it
is agreed as follow:
1. Employment of the Sub-adviser. Pursuant to
Section 2 of the Investment Advisory Agreement, the Adviser
hereby employs the Sub-adviser to manage the investment and
reinvestment of the Fund's assets as specified from time to
time by the Adviser ("Managed Assets"), subject to the control
and direction of the Trust's Board of Trustees ("Board") and the
general oversight of the Adviser, for the period and on the terms
hereinafter set forth. The Sub-adviser hereby accepts such
employment and agrees during such period to render the services
and to assume the obligations herein set forth for the compensation
specified herein. The Sub-adviser shall for all purposes herein be
deemed to be an independent contractor and shall, except as
expressly provided or authorized (whether herein or otherwise),
have no authority to act for or represent the Adviser or the Fund
in any way.
2. Services to be provided by the Sub-adviser. The
Sub-adviser undertakes to provide the following services and to
assume the following obligations:
a. The Sub-adviser shall manage the investment and
reinvestment of the Managed Assets, all without prior consultation
with the Adviser, subject to and in accordance with (i) the
investment objective and policies of the Fund set forth in the
Trust's Amended and Restated Agreement and Declaration of Trust,
as amended, By-Laws, Prospectus, and Statement of Additional
Information as from time to time in effect ("Governing Documents"),
(ii) the requirements applicable to registered investment companies
under applicable laws, including without limitation under the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder ("1940 Act"), and under Subchapter M of the
Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder ("Code"), as they relate to qualification
of the Fund as a regulated investment company thereunder, and
(iii) any written instructions which the Adviser or the Board
may issue from time-to-time. The Sub-adviser also agrees to
conduct its activities hereunder in accordance with any applicable
procedures or policies adopted by the Board or the Adviser in
respect of the Fund as notified by the Adviser to the Sub-adviser
from time to time as being in effect ("Procedures"). As of the
date of this Agreement, the Adviser hereby affirms that it has
provided the Sub-adviser with copies of all Governing Documents
and Procedures and shall promptly provide to the Sub-adviser any
amendments or supplements thereto. Subject to and in pursuance
of the foregoing, the Sub-adviser shall make all determinations
with respect to the purchase and sale of portfolio securities in
respect of the Managed Assets and shall take such action
necessary to implement the same. The Sub-adviser shall render
such reports to the Board and the Adviser as they may reasonably
request concerning the investment activities of the Fund. It
shall be the duty of the Sub-adviser to furnish to the Board
such information as the Board may reasonably request in order
for the Board to evaluate this Agreement or any proposed
amendments thereto or in connection with the Board's
consideration of any matter contemplated by Section 8 hereof.
The Sub-adviser agrees to furnish investment advice,
research, and recommendations to the Fund, in the preparation
of reports and information, and in the management of the
Managed Assets, all pursuant to this Agreement, and for this
purpose the Sub-adviser shall, at its own expense, maintain
such staff and employ or retain such personnel and consult with
such other persons as shall from time to time be necessary to
the performance of its obligations under this Agreement.
Unless the Board or the Adviser gives the Sub-adviser
written instructions to the contrary, the Sub-adviser shall,
in good faith and in a manner which it reasonably believes
best serves the interests of the Fund's shareholders and in
a manner consistent with the Procedures in effect at the time,
direct the Fund's custodian as to how to vote all proxies in
connection with any matters submitted to a vote of shareholders
of securities in which the Managed Assets may be invested.
The Sub-adviser shall provide disclosure regarding its proxy
voting policies and procedures in accordance with the
requirements of Form N-1A for inclusion in the Registration
Statement (as defined below) of the Trust. To the extent that
the Sub-adviser votes proxies for the Fund, the Sub-adviser
shall report to the Adviser in a timely manner a record of all
proxies voted, in such form and format as permits the Fund to
comply with the requirements of Form N-PX with respect to the
Managed Assets. During any annual period in which the Sub-
adviser has voted proxies for the Fund, the Sub-adviser shall
certify as to its compliance with its proxy voting policies
and procedures and applicable federal statutes and regulations.
In addition, at the request of the Adviser, the Sub-
adviser shall be responsible for the filing of claims (or
otherwise causing the Fund to participate) in class action
settlements or similar proceedings in which shareholders may
participate related to securities currently or previously
associated with the Managed Assets.
b. Absent instructions of the Adviser to the
contrary, the Sub-adviser is authorized to and shall, in
the name of the Fund, place orders for the execution of
portfolio transactions with or through such brokers, dealers,
or other financial institutions as it may reasonably select.
In executing portfolio transactions and selecting broker-
dealers in respect of the Managed Assets, the Sub-adviser
will seek to obtain best execution of such transactions on
behalf of the Fund. Subject to such policies as the Board
may determine and consistent with Section 28(e) of the
Securities Exchange Act of 1934, as amended, the Sub-adviser
may pay higher brokerage commissions for brokerage and
research services (as those terms are used in Section 28(e))
than might otherwise be available for a similar execution as
described below. In evaluating and in selecting the broker-
dealer to execute a particular transaction, the Sub-adviser
may also consider the brokerage and research services
provided by that broker-dealer. In seeking best execution,
the Sub-adviser, bearing in mind the Fund's best interests
at all times, will consider all factors it deems relevant,
including by way of illustration, price, the size of the
transaction, the nature of the market for the security, the
amount of the commission, the timing of the transaction
taking into account market prices and trends, the reputation,
experience and financial stability of the broker or dealer
involved and the quality of service rendered by the broker
or dealer in other transactions. The Sub-adviser will not
be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason
of its having caused the Fund to pay a broker or dealer that
provides brokerage and research services to the Sub-adviser
an amount of commission for effecting a portfolio investment
transaction in excess of the amount of commission another
broker or dealer would have charged for effecting that
transaction, if the Sub-adviser determines in good faith
that such amount of commission was reasonable in relation
to the value of the brokerage and research services provided
by such broker or dealer, viewed in terms of either that
particular transaction or the Sub-adviser's overall
responsibilities with respect to the Fund and/or to
other clients of the Sub-adviser as to which the Sub-
adviser exercises investment discretion.
On an ongoing basis, at such times as the Adviser or
the Board shall request, the Sub-adviser will provide a
written report to the Adviser and the Board, in a form
reasonably agreed between the Sub-adviser and the Adviser
or in such other form as the Board may request, summarizing
the Adviser's trading and brokerage activities with respect
to the Fund, including without limitation information
regarding (i) any "soft dollar" arrangements that the
Sub-adviser maintains with brokers or dealers that execute
transactions for the Managed Assets, and (ii) all research
and other services provided to the Sub-adviser by a broker
or dealer (whether prepared by such broker or dealer or by
a third party) as a result, in whole or in part, of the
direction of Fund transactions to the broker or dealer.
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 other clients of the Sub-adviser, the Sub-
adviser may, in accordance with applicable law and any
relevant Procedures, aggregate the securities to be so
purchased or sold with orders for other clients of the
Sub-adviser in order to obtain best execution. In such
event, allocation of the securities so purchased or sold,
as well as of the fees and expenses incurred in the
transaction, will be made by the Sub-adviser consistent
with the Sub-adviser's procedures (which will for this
purpose be substantially identical to the corresponding
Procedures) and in a manner that is fair and equitable
over time and consistent with the Sub-adviser's fiduciary
obligations to the Fund and to such other clients.
c. The Sub-adviser shall bear its expenses of
providing services pursuant to this Agreement. The Fund
will pay all expenses other than those expressly stated
to be payable by the Sub-adviser hereunder or by the
Adviser under the Advisory Agreement.
d. The Sub-adviser shall notify the Adviser
of (i) any changes regarding the Sub-adviser that would
affect disclosure in the Trust's registration statement
("Registration Statement") under the 1940 Act and the
Securities Act of 1933, as amended ("Securities Act"),
or (ii) any violation of any requirement, provision,
policy, or restriction that the Sub-adviser is required
to comply with under this Agreement, or any other
violation of this Agreement, in either event promptly
upon becoming aware of such event. The Sub-adviser shall,
within two business days, notify both the Adviser and the
Fund of any legal process served upon it in connection
with its activities hereunder, including any legal process
served upon it on behalf of the Adviser or the Fund.
e. In connection with any purchase or sale
of securities or other instruments for the Managed Assets,
the Sub-adviser will arrange for the transmission to the
custodian for the Fund ("Custodian") on a daily basis such
confirmations, trade tickets, and other documents and
information, including, but not limited to, CUSIP, Sedol,
or other numbers that identify the securities or other
instruments to be purchased or sold on behalf of the Fund,
as may be reasonably necessary to enable the Custodian to
perform its custodial, administrative, and recordkeeping
responsibilities with respect to the Fund. Copies of such
confirmations, trade tickets, and other documents and
information, including, but not limited to, CUSIP, Sedol,
or other numbers that identify the securities or other
instruments to be purchased or sold on behalf of the Fund,
shall be provided concurrently to the Adviser. With respect
to securities or other instruments to be settled through the
Fund's Custodian, the Sub-adviser will arrange for the
prompt transmission of the confirmation of such trades
to the Custodian
f. The Sub-adviser will provide reasonable
assistance to the Adviser or other party designated by the
Board in assessing the valuation of securities or other
instruments held in the Managed Assets, including, without
limitation, those for which market quotations are not readily
available or those which the Adviser or the Board has
otherwise determined to fair value.
g. The Sub-adviser (i) will continue to be
registered as an investment adviser under the Advisers Act
for so long as this Agreement remains in effect; (ii) will
continue not to be prohibited by the 1940 Act or the Advisers
Act from performing the services contemplated by this
Agreement; (iii) has appointed a Chief Compliance Officer
under Rule 206(4)-7 under the Advisers Act; (iv) has adopted
written policies and procedures that are reasonably designed
to prevent violations of the Advisers Act from occurring,
detect violations that have occurred, and correct promptly
any violations that have occurred, and will provide notice
promptly to the Adviser of any violations relating to the
Fund; (v) 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 organization; (vi) has
the authority to enter into and perform the services
contemplated by this Agreement; and (vii) will promptly
notify the Adviser of the occurrence of any event that would
disqualify the Sub-adviser from serving as an investment
adviser of an investment company pursuant to Section 9(a)
of the 1940 Act or otherwise, including, without limitation,
if it becomes the subject of an administrative proceeding or
enforcement action by the Securities and Exchange Commission
("SEC") or other regulatory authority (including, without
limitation, any self-regulatory organization). At all times
during the term of this Agreement, the Sub-adviser will either
be registered with the U.S. Commodity Futures Trading Commission
("CFTC") as a commodity trading adviser and a member in good
standing of the National Futures Association ("NFA") or will
not be required to be registered with the CFTC or be a member of
the NFA. The Sub-adviser further agrees to provide reasonable
evidence of its compliance with any of the foregoing.
h. The Sub-adviser will maintain a written code
of ethics ("Code of Ethics") that complies with the requirements
of Rule 17j-1 under the 1940 Act ("Rule 17j-1"), a copy of which
will be provided to the Adviser and the Fund, and will institute
procedures reasonably necessary to prevent any Access Person
(as defined in Rule 17j-1) from violating its Code of Ethics.
The Sub-adviser will comply in all material respects with such
Code of Ethics in performing its services under this Agreement.
The Sub-adviser also will certify quarterly to the Trust on
behalf of the Fund and the Adviser that it and, to the best of
its knowledge, its "Advisory Persons" (as defined in Rule 17j-1)
have complied in all material respects with the requirements of
Rule 17j-1 during the previous quarter or, if not, describe any
failure to do so and explain what the Sub-adviser has done
to seek to ensure such compliance in the future. Annually,
the Sub-adviser will furnish a written report, which complies
with the requirements of Rule 17j-1 and Rule 38a-1, concerning
the Code of Ethics and compliance program, respectively, to the
Trust and the Adviser in such form as may be mutually agreed
upon by the Adviser and the Sub-adviser from time to time or
as the Board may request. The Sub-adviser shall notify the
Adviser promptly of any material violation of the Code of
Ethics involving the Fund. Upon request of the Board or the
Chief Compliance Officer of the Fund or the Adviser
with respect to violations of the Code of Ethics directly
affecting the Fund, the Sub-adviser will permit representatives
of the Trust or the Adviser to examine reports (or summaries
of the reports) required to be made by Rule 17j-1 relating
to enforcement of the Code of Ethics. The Sub-adviser will
provide such additional information regarding violations of
the Code of Ethics as the Board or the Chief Compliance Officer
on behalf of the Fund or the Adviser may reasonably request in
order to assess the functioning of the Code of Ethics or any
harm caused to the Fund from a violation of the Code of Ethics.
Further, the Sub-adviser represents and warrants that it has
policies and procedures regarding the detection and prevention
of the misuse of material, nonpublic information by the Sub-
adviser and its employees.
i. The Sub-adviser will provide the Adviser and
the Fund with a copy of its Form ADV Part 2A and promptly
furnish a copy of all amendments thereto to the Adviser
and the Fund.
j. The Sub-adviser will promptly notify the
Adviser of any changes in its officers, directors, or
managing members or persons acting in a similar capacity
or in the portfolio management team responsible for the
Fund, or if there is otherwise an actual or expected change
in control or management of the Sub-adviser.
k. The Sub-adviser (A) shall maintain such books
and records with respect to the Managed Assets as are required
by law, including without limitation the 1940 Act and the
Advisers Act, and the rules and regulations thereunder, (B)
shall render to the Board such periodic and special reports
as the Board may request or the Adviser may reasonably request
in writing, and (C) shall meet with any person at the request
of the Adviser or the Board for the purpose of reviewing the
Sub-adviser's performance under this Agreement at reasonable
times and upon reasonable advance written notice. All such
books and records shall be the property of the Fund, and the
Sub-adviser will surrender promptly to the Fund any of such
books and records upon the Fund's request (provided that the
Sub-adviser may retain a copy of such books and records) and
shall make all such books and records available for inspection
and use by the SEC, the Fund, the Adviser or any person
retained by the Fund at all times. Where applicable, such
books and records shall be maintained by the Sub-adviser for
the periods and in the places required by Rule 31a-2 under
the 0000 Xxx.
l. The Sub-adviser shall timely provide to the
Adviser and the Fund all information and documentation they
may reasonably request as necessary or appropriate in
connection with the compliance by them or either of them
with the requirements of any applicable law, including,
without limitation, (i) information and commentary for the
Fund's annual and semi-annual reports, in a format approved
by the Adviser, together with (A) a certification that such
information and commentary discuss all of the factors that
materially affected the performance of the Managed Assets,
including the relevant market conditions and the investment
techniques and strategies used, and do not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the information and commentary not misleading,
and (B) additional certifications related to the Sub-adviser's
management of the Fund in order to support the Fund's filings
on Form N-CSR, Form N-Q and other applicable forms, and the
Fund's Principal Executive Officer's and Principal Financial
Officer's certifications under Rule 30a-2 under the 1940 Act,
thereon; (ii) a quarterly sub-certification with respect to
compliance matters related to the Sub-adviser and the Sub-
adviser's management of the Fund, in a form reasonably
requested by the Adviser, as it may be amended from time to
time; and (iii) an annual certification from the Sub-adviser's
Chief Compliance Officer, appointed under Rule 206(4)-7 under
the Advisers Act, with respect to the design and operation of
the Sub-adviser's compliance program, in a form reasonably
requested by the Adviser.
m. The Sub-adviser shall promptly provide notice
to the Adviser if it becomes the subject of an administrative
proceeding or enforcement action by, or any non-routine
inspection by, any governmental, administrative, or self-
regulatory agency relating to (i) the Sub-adviser's management
of the Managed Assets or otherwise relating to the Fund or (ii)
matters that the Adviser reasonably views as material to the
Sub-adviser's ability to provide services to the Fund. The
Sub-Adviser shall promptly make available to the Adviser and
to the Fund any deficiency letter, responses to deficiency
letters, or similar communications or actions relating to the
Managed Assets or the Sub-Adviser's services to the Fund.
3. Compensation of the Sub-adviser. In full
consideration of services rendered and the expenses incurred
by the Sub-adviser in the performance of such services, the
Adviser will pay the Sub-adviser a fee, at the annual rate
set forth in Schedule A hereto, based on the average daily
net Managed Assets ("Sub-advisory Fee") (except as such Sub-
advisory Fee may be reduced as set forth below). Such Sub-
advisory Fee shall be accrued daily and paid monthly no later
than 10 days after the end of each month for which the Sub-
advisory Fee is earned. If the Sub-adviser shall serve for
less than the whole of any month, the Sub-advisory Fee shall
be prorated. For the purpose of determining the Sub-advisory
Fee payable to the Sub-adviser, the value of the average daily
net Managed Assets shall be computed at the times and in the
same manner as the Fund's average daily net assets are
computed for purposes of calculating the advisory fee paid by
the Fund to the Adviser ("Advisory Fee") as determined by the
Board and set forth in the Governing Documents.
In the event that the Adviser implements any Advisory
Fee waiver, Advisory Fee reduction or expense limitation in
respect of the Fund ("Fee Modification") for any period, the
Sub-advisory Fee, as set forth above, shall be reduced for
any such period by (i) the dollar value of such Fee
Modification multiplied by (ii) the proportion that (A)
the Sub-advisory Fee bears to (B) the Advisory Fee
(absent such Fee Modification).
4. Conflicts. Without limiting any fiduciary
duty or other obligation of the Sub-adviser to the Fund,
the Sub-adviser will implement, establish, maintain, and
comply with reasonable compliance policies and procedures
that are (i) acceptable to the Board and the Adviser and
(ii) intended to address conflicts of interest associated
with the side by side management of the Managed Assets and
the investment portfolios of other clients it advises.
5. Liability of the Sub-adviser. Absent
willful misfeasance, bad faith, gross negligence, or
reckless disregard of obligations or duties hereunder
on the part of the Sub-adviser or any of its partners,
members, officers, agents, employees, or shareholders or
the breach by the Sub-adviser of any representation or
warranty hereunder, neither the Sub-adviser nor any of its
partners, members, officers, employees and shareholders
shall be liable for any act or omission in the course of,
or connected with, rendering services hereunder or for any
losses that may be sustained in the purchase, holding, or
sale of any security. Nothing herein shall constitute a
waiver of any rights or remedies that the Fund may have
under any federal or state securities laws whose
applicability is not permitted to be contractually waived.
6. Indemnifications.
a. Indemnification by the Sub-adviser. The
Sub-adviser hereby agrees to indemnify and hold harmless
the Fund and the Adviser and their respective Trustees,
members, officers, directors, employees, shareholders,
affiliates, and agents and each person, if any, who
controls the Fund or the Adviser within the meaning of
Section 15 of the Securities Act, against any and all
direct losses, damages, costs, charges, reasonable
counsel fees, payments, expenses, liability, claims,
actions, suits, or proceedings at law or in equity
whether brought by a private party or a governmental
department, commission, board, bureau, agency, or
instrumentality of any kind, arising out of or
attributable to the willful misconduct, bad faith, gross
negligence, or reckless disregard of obligations or duties
in the performance of the Sub-adviser's duties (on the part
of the Sub-adviser or any of its partners, members, officer,
agents, employees, shareholders, affiliates, or controlling
persons) under this Agreement or the material breach of any
representation or warranty hereunder. The rights of
indemnification provided in this section shall not be
exclusive of or affect any other rights to which any person
may be entitled by contract or otherwise by law.
b Indemnification by the Adviser. The Adviser shall
indemnify and hold harmless the Sub-Adviser and each of its
partners, members, officers, agents, employees and shareholders,
and each person, if any, who controls the Sub-Adviser within
the meaning of Section 15 of the Securities Act, against any
and all direct losses, damages, costs, charges, reasonable
counsel fees, payments, expenses, liability, claims, actions,
suits, or proceedings at law or in equity whether brought by
a private party or a governmental department, commission,
board, bureau, agency, or instrumentality of any kind,
arising out of or attributable to (i) any action or inaction
by the Sub-adviser that the Sub-adviser has taken or
refrained from taking, as applicable, in good faith pursuant
to and consistent with the Adviser's written instructions to
the Sub-Adviser; or (ii) the willful misconduct, bad faith,
gross negligence or reckless disregard of obligations or duties
in the performance of the Adviser's duties (on the part of the
Adviser or any of its officers, directors, partners, agents,
employees, affiliates, or controlling persons) under this
Agreement or the material breach of any representation or
warranty hereunder. The rights of indemnification provided
in this section shall not be exclusive of or affect any
other rights to which any person may be entitled by
contract or otherwise by law.
7. Limitation of Fund's Liability. The Sub-
adviser acknowledges that it has received notice of and
accepts the limitations upon the Fund's liability set forth
in the Trust's Amended and Restated Agreement and
Declaration of Trust, as amended.
8. Renewal, Termination, and Amendment. This
Agreement shall continue in effect, unless sooner terminated
as hereinafter provided, until the second anniversary of the
date set forth above, and shall continue in full force and
effect for successive periods of one year thereafter, but
only so long as each such continuance is specifically
approved at least annually by (i) the Trustees of the
Trust or (ii) a vote of the holders of a majority of the
outstanding voting securities of the Fund and, in either
event, by vote of a majority of the Trustees who are not
parties to this Agreement or interested persons of any
such party, cast in accordance with the provisions of the
1940 Act.
This Agreement may be terminated at any time without
payment of any penalty, by the Adviser, the Board, or by a
vote of a majority of the outstanding voting securities of
the Fund upon 60 days' prior written notice to the Sub-
adviser, or upon such shorter notice as may be mutually
agreed upon. This Agreement may also be terminated
immediately, without the payment of any penalty, by (i)
either Party upon material breach by the other Party of
any agreement, obligation, representation, or warranty
set forth in this Agreement, or (ii) by the Adviser if,
in the reasonable judgment of the Adviser, the Sub-adviser
becomes unable to discharge its duties and obligations
under this Agreement, including circumstances such as
the insolvency of the Sub-adviser, the termination,
resignation, or other loss of a portfolio manager, or
other circumstances that the Adviser determines could
adversely affect the Fund. This Agreement may also be
terminated immediately, without the payment of any penalty,
by the Adviser if the Sub-adviser becomes subject to any
enforcement actions or administrative proceedings that
the Adviser reasonably expects to have a material and
adverse effect on the Sub-Adviser's ability to perform
under the Agreement. This Agreement shall terminate
automatically and immediately (i) upon termination of the
Advisory Agreement between the Adviser and the Fund and
(ii) in the event of its assignment. The Sub-adviser
shall promptly notify the Adviser of any transaction or
other event that results in an assignment of this
Agreement within the meaning of the 1940 Act. The
terms "assignment" and "vote of a majority of the
outstanding voting securities" shall have the meanings
ascribed to them in the 1940 Act.
In the event of a termination of this Agreement,
those paragraphs of this Agreement which govern the
conduct of the Parties' future interactions with
respect to the Sub-adviser having provided investment
advisory services to the Fund for the duration of the
Agreement, including, but not limited to, paragraphs
2(k), (l), and (m), 6, 7, 9, 11 and 12, shall survive
the termination of the Agreement.
This Agreement may be amended at any time by the
Sub-adviser and the Adviser, subject to approval by the
Board and, if required by applicable law or SEC rules
and regulations, a vote of a majority of the Fund's
outstanding voting securities.
9. Use of Names. The Sub-adviser shall
not use the name of the Fund or the Adviser in any
manner not approved prior thereto by the Adviser;
provided, however, that the Sub-adviser may use the
name of the Adviser or the Fund in any material that
merely refers in accurate terms to the Sub-adviser's
provision of the sub-advisory services to the Fund
and related performance information.
10. Sub-adviser Insurance. The Sub-adviser
agrees that it will maintain at its own expense (i)
adequate fidelity bond insurance with respect to its
activities on behalf of the Fund and (ii) an Errors
and Omissions insurance policy with respect to the Sub-
adviser and providing coverage for the services provided
by the Sub-adviser to the Fund under this Agreement in an
amount not less than $10 million and Commercial General
Liability insurance in a commercially reasonable amount.
The minimum required amounts set forth in this insurance
provision are not to be construed as a limitation on the
Sub-adviser's liability under this Agreement. Any and all
deductibles specified in the above-referenced insurance
policies shall be assumed by the Sub-adviser.
11. Third-Party Beneficiaries. The Fund, and
each of the persons from time to time serving as a Trustee,
officer, or agent of the Fund, and each of the persons named
as entitled to indemnification under Section 6 of this
Agreement, are hereby expressly made third-party beneficiaries
under this Agreement, and shall be entitled to enforce this
Agreement against the Sub-adviser, and to bring an action
against the Sub-adviser under this Agreement as if the Fund
or such other person were a party hereto, and the Sub-adviser
expressly consents to the foregoing. Except as provided in
the preceding sentence, neither the Adviser nor Sub-adviser
intends for this Agreement to benefit any third-party not
expressly named in this Agreement.
12. Severability. If any provision of this
Agreement shall be held or made invalid by a court decision,
statue, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby.
13. Miscellaneous. Each Party agrees to perform
such further actions and execute such further documents as
are necessary to effectuate the purposes hereof. This
Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of New York, without
giving effect to conflicts of laws rules. The captions in
this Agreement are included for convenience only and in no
way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. This
Agreement may be executed in several counterparts, all of
which together shall for all purposes constitute one agreement,
binding on the Parties.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have duly executed this
Agreement as of the date first written above.
RS INVESTMENT MANAGEMENT CO. LLC
By: _______________________________
Name:
Title:
SAILINGSTONE CAPITAL PARTNERS LLC
By: _______________________________
Name:
Title:
Schedule A
Annual rate for purposes of Section 3 of this Agreement:
0.50% of the Managed Assets up to $1 billion; plus
0.32% of the Managed Assets of more than $1 billion but
less than $2 billion; plus
0.22% of the Managed Assets of more than $2 billion.
