SUBADVISORY AGREEMENT
THIS AGREEMENT is made and entered into as of this 17th day of
November, 2006 among OppenheimerFunds, Inc., a Colorado corporation (the
"Adviser"), and Baring Asset Managment, Inc., a Massachusetts corporation (the
"SubAdviser")
W I T N E S S E T H:
WHEREAS, Xxxxxxxxxxx Baring Japan Fund (the "Fund") is registered with
the Securities and Exchange Commission (the "SEC") as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Adviser is a registered investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act") and is
engaged in the business of rendering investment advice;
WHEREAS, the Adviser has, pursuant to an Advisory Agreement with the
Fund dated as of October 11, 2006 (the "Advisory Agreement") been retained to
act as investment adviser for the Fund;
WHEREAS, the Advisory Agreement permits the Adviser, at its option,
subject to approval by the Fund's Board of Trustees (the "Board") and, to the
extent necessary, shareholders of the Fund, to delegate certain of its duties
under the Advisory Agreement to other investment advisers, subject to the
requirements of the 1940 Act;
WHEREAS, SubAdviser is a registered investment adviser under the
Advisers Act and is engaged in the business of rendering investment advice;
and
WHEREAS, the Adviser desires to retain SubAdviser to assist it in the
provision of a continuous investment program for the Fund's assets, and
SubAdviser is willing to render such services subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties do mutually agree and promise as follows:
1. Appointment as SubAdviser. The Adviser hereby appoints the
SubAdviser to act as SubAdviser of the Fund to provide investment advice to
the Fund as hereinafter set forth, subject to the supervision of the Adviser
and the Fund's Board and subject to the terms of this Agreement; and the
SubAdviser hereby accepts such appointment and agrees to furnish the services
hereinafter set forth for the compensation herein provided.
2. Duties of SubAdviser.
(a) Investments. The SubAdviser is hereby authorized and directed
and hereby agrees, subject to the stated investment policies and restrictions
of the Fund as set forth in the Fund's prospectus and Statement of Additional
Information as currently in effect and as supplemented or amended from time
to time (collectively referred to hereinafter as the "Prospectus") and
subject to the directions of the Adviser and the Board, to (i) regularly
provide investment advice and recommendations to the Fund with respect to the
Fund's investments, investment policies and the purchase and sale of
securities and other investments; (ii) supervise and monitor the investment
program of the Fund and the composition of its portfolio to determine what
securities and other investments shall be purchased or sold by the Fund; and
(iii) arrange, subject to the provisions of paragraph (d) below, for the
purchase of securities and other investments for the Fund and the sale of
securities and other investments held in the portfolio of the Fund. The
Adviser agrees to provide the SubAdviser with such assistance as may be
reasonably requested by the SubAdviser in connection with its activities
under this Agreement, including, without limitation, information concerning
the Fund, its funds available, or to become available, for investment and
generally as to the conditions of the Fund or the Fund's affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of its duties and obligations under this Agreement or otherwise,
the SubAdviser shall act in conformity with the Fund's Declaration of Trust,
By-Laws, procedures and policies adopted by the Fund's Board and/or by the
Adviser and the Prospectus and with the instructions and directions received
in writing from the Adviser or the Fund's Board and will conform to and
comply with the requirements of the 1940 Act and all rules and regulations
thereunder, and releases and interpretations related thereto, the Internal
Revenue Code of 1986, as amended (the "Code"), and all other applicable
federal and state laws and regulations necessary to allow the Fund to qualify
as a "regulated investment company" as defined in Subchapter M of the Code
(which currently requires that, at the close of each quarter of the taxable
year, (A) at least 50 percent of the value of the Fund's total assets is
represented by (i) cash and cash items [including receivables], Government
securities and securities of other regulated investment companies, and (ii)
other securities for purposes of this calculation limited in respect of any
one issuer to an amount not greater in value than 5 percent of the value of
the total assets of the Fund and to not more than 10 percent of the
outstanding voting securities of such issuer, and (B) not more than 25
percent of the value of its total assets is invested in the securities [other
than Government securities or the securities of other regulated investment
companies] of any one issuer). Notwithstanding the foregoing, the Adviser
shall, subject to the SubAdviser's compliance with its obligations, remain
responsible for the Fund's overall compliance with the 1940 Act, the Code and
all other applicable federal and state laws and regulations. The Adviser
will provide the SubAdviser with a copy of those portions of the minutes of
the meetings of the Fund's Board to the extent they may materially affect the
duties of the SubAdviser, and with copies of any financial statements or
reports made by the Fund to its shareholders, and any further materials or
information which the SubAdviser may reasonably request to enable it to
perform its functions under this Agreement.
The Adviser will provide the SubAdviser with advance notice of any
change in the Fund's investment objectives, policies and restrictions as
stated in the Prospectus or in any procedures and policies adopted by the
Fund's Board and/or the Adviser, and the SubAdviser shall, in the performance
of its duties and obligations under this Agreement, manage the Fund's
portfolio investments in compliance with such changes, provided the
SubAdviser has received prompt notice of the effectiveness of such changes
from the Fund or the Adviser. In addition to such notice, the Adviser shall
provide to the SubAdviser a copy of a modified Prospectus reflecting such
changes provided that such Prospectus was so modified.
The Adviser acknowledges and agrees that, provided that the SubAdviser
has provided the Adviser with complete, accurate and timely information
regarding the SubAdviser's activities relating to the Fund, the Prospectus
will at all times be in compliance with all disclosure requirements under all
applicable federal and state laws and regulations relating to the Fund,
including, without limitation, the 1940 Act, and the rules and regulations
thereunder, and that the SubAdviser shall have no liability in connection
therewith, except as to the accuracy of material information furnished in
writing by the SubAdviser to the Fund or to the Adviser specifically for
inclusion in the Prospectus, or information which was provided to the
SubAdviser to review and which SubAdviser approved as to the accuracy of such
information or if the SubAdviser does not promptly respond will be deemed to
have approved the accuracy of such information as described below. The
SubAdviser hereby agrees to provide to the Adviser in a timely manner such
information relating to the SubAdviser and its relationship to, and actions
for, the Fund as may be required to be contained in the Prospectus or in the
Fund's registration statement on Form N-1A. The SubAdviser shall have seven
(7) business days to review all disclosure about the Fund and the SubAdviser
contained in the Fund's Prospectus and Statement of Additional Information
and certain advertisements for accuracy and shall approve or disapprove of
such disclosure within seven (7) business days of receiving such disclosure.
After the expiration of seven (7) business days, the Adviser shall provide
the SubAdviser an additional five (5) business days to respond, such
additional five (5) business days to commence upon written notice from the
Adviser. The SubAdviser's failure to respond within such time shall be
deemed to constitute SubAdviser's approval of such disclosure.
The SubAdviser agrees to notify the Adviser and the Fund immediately of
any material fact known to the SubAdviser respecting or relating to the
SubAdviser and its relationship to, and actions for, the Fund that is not
contained the Registration Statement or Prospectus for the Fund, or any
amendment or supplement thereto, or of any statement respective or relating
to the SubAdviser and its relationship to, and actions for, the Fund
contained therein that becomes untrue in any material respect.
(c) Voting of Proxies. Absent specific written instructions to the
contrary provided to the SubAdviser by the Adviser, the Adviser shall vote,
either in person or by proxy, all securities in which the Fund may be
invested from time to time in accordance with the Fund's proxy voting
procedures.
(d) Brokerage. The SubAdviser is authorized, subject to the
supervision of the Adviser and the Fund's Board, to establish and maintain
accounts on behalf of the Fund with, and place orders for the purchase and
sale of the Fund's portfolio securities with or through, such persons,
brokers (including, to the extent permitted by applicable law and by the
Fund, the Fund or the Adviser, any broker affiliated with the SubAdviser) or
dealers ("brokers") as SubAdviser may elect and negotiate commissions to be
paid on such transactions.
Upon obtaining consent of the Adviser or the Fund's Board, the
SubAdviser may effect the purchase and sale of securities in private
transactions on such terms and conditions as shall be approved by the Adviser.
The SubAdviser shall place orders for the purchase and sale of
portfolio investments for the Fund's account with brokers or dealers selected
by the SubAdviser. In the selection of such brokers or dealers and the
placing of such orders, the SubAdviser shall seek to obtain for the Fund at
reasonable expense, the "best execution" (prompt and reliable execution at
the most favorable security price obtainable) of the Fund's portfolio
transactions, except to the extent it may be permitted to pay higher
brokerage commissions for brokerage and research services, as provided
below. In using its best efforts to obtain for the Fund best execution of
Fund portfolio transactions, the SubAdviser, bearing in mind the best
interests of the Fund at all times, shall consider all factors it deems
relevant, including price, the size of the transaction, the breadth and
nature of the market for the security, the difficulty of the execution, the
amount of the commission, if any, the timing of the transaction, 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. Subject to such policies as the Fund's
Board may determine, or as may be mutually agreed to by the Adviser and the
SubAdviser, the SubAdviser shall 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 that provides brokerage
and research services (within the meaning of Section 28(e) of the Securities
Exchange Act of 1934) to the SubAdviser an amount of commission for effecting
the Fund's investment transaction that is in excess of the amount of
commission that another broker would have charged for effecting that
transaction if, but only if, the SubAdviser determines in good faith that
such 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 overall responsibility of the SubAdviser
with respect to the accounts as to which it exercises investment discretion.
The SubAdviser shall not direct brokerage to any broker or dealer in
recognition of, or otherwise take into account in making brokerage allocation
decisions, sales of shares of the Fund or of any other investment vehicle by
that broker or dealer.
On occasions when the SubAdviser deems the purchase or sale of a
security to be in the best interests of the Fund as well as other clients of
the SubAdviser, the SubAdviser, to the extent permitted by applicable laws
and regulations and subject to the allocation procedures approved by the
Fund's Board or Adviser, may, but shall be under no obligation to, aggregate
the securities to be sold or purchased in order to obtain the most favorable
price or lower brokerage commissions and efficient execution. In such event,
allocation of securities so sold or purchased, as well as the expenses
incurred in the transaction, will be made by the SubAdviser in accordance
with the procedures approved by the Trustees or the Adviser.
(e) Securities Transactions. The SubAdviser and any affiliated
person of the SubAdviser will not purchase securities or other instruments
from or sell securities or other instruments to the Fund; provided, however,
the SubAdviser or any affiliated person of the SubAdviser may purchase
securities or other instruments from or sell securities or other instruments
to the Fund if such transaction is permissible under applicable laws and
regulations, including, without limitation, the 1940 Act and the Advisers Act
and the rules and regulations promulgated thereunder and is permitted by the
procedures adopted by the Fund.
The SubAdviser, including its Access Persons (as defined in subsection
(e) of Rule 17j-1 under the 1940 Act), agrees to observe and comply with Rule
17j-1 and the SubAdviser's Code of Ethics (which shall comply in all material
respects with Rule 17j-1), as the same may be amended from time to time. On
at least a quarterly basis, the SubAdviser will comply with the reporting
requirements of Rule 17j-1, which may include either (i) certifying to the
Adviser that the SubAdviser and its Access Persons have complied with the
SubAdviser's Code of Ethics or (ii) identifying any violations which have
occurred with respect to the Fund. Upon written request of the Adviser or
the Fund, the SubAdviser shall permit representatives of the Adviser and the
Fund to examine the reports (or summaries of the reports) required to be made
under the Code of Ethics and other records evidencing enforcement of the Code
of Ethics.
(f) Valuation Assistance. The SubAdviser will provide reasonable
assistance to the Adviser, custodian or recordkeeping agent for the Fund in
determining the value of any portfolio securities that are not registered for
public sale, not traded on any securities markets, or otherwise may be deemed
illiquid for purposes of the 1940 Act and/or for which market or broker
quotations are not readily available or may be deemed unreliable or stale, or
which do not appear to reflect corporate actions, new or significant events,
or which the Adviser, custodian or recordkeeping agent seeks assistance from
the SubAdviser or identifies for review by the SubAdviser. Notwithstanding
the foregoing, the SubAdviser will provide the Adviser with notice and
analysis of events that may affect or relate to the valuation of the Fund's
portfolio securities.
(g) Books and Records. The SubAdviser shall maintain and preserve
for the periods prescribed by applicable laws, rules and regulations all
records required to be maintained by the SubAdviser, pursuant to the
Investment Adviser's Act of 1940, on behalf of the Adviser. The SubAdviser
agrees that such records are the property of the Fund and further agrees to
surrender promptly to the Fund or to the Adviser any of such records upon
request.
(h) Information Concerning the Fund and SubAdviser. From time to
time as the Adviser or the Fund may request, the SubAdviser will furnish the
requesting party information and reports on portfolio transactions and
reports on Fund assets held in the portfolio, all in such detail, form and
frequency as the Adviser or the Fund may reasonably request.
The SubAdviser will (i) make appropriate persons, including the Fund's
portfolio manager(s), available for the purpose of reviewing with
representatives of the Adviser and/or the Fund's Board on a regular basis the
management of the Fund, including, without limitation, review of the general
investment strategy of the Fund, economic considerations and general
conditions affecting the marketplace; (ii) on a continuing basis, (A) provide
the distributor of the Fund (the "Distributor") with assistance in the
distribution and marketing of the Fund in such amount and form as the Fund's
distributor may reasonably request from time to time, and (B) upon reasonable
notice from the Fund's distributor, use reasonable efforts to cause the
portfolio manager or other person who manages or is responsible for
overseeing the management of the Fund's portfolio (the "Portfolio Manager")
to provide marketing and distribution assistance to the Distributor,
including, without limitation, conference calls, meetings and road trips,
provided that each portfolio manager shall not be required to devote more
than 10% of his or her time to such marketing and distribution activity (in
this regard, the Adviser undertakes to reimburse the SubAdviser for its
reasonable out-of-pocket expenses, provided that, such expenses are related
to a request for marketing or distribution assistance by a duly authorized
employee of the Adviser); (iii) use reasonable efforts (A) to retain the
services of the Portfolio Manager who manages the portfolio of the Fund, from
time to time or (B) to promptly obtain the services of a Portfolio Manager
acceptable to the Adviser if the services of the Portfolio Manager are no
longer available to the SubAdviser; (iv) obtain the written approval of the
Adviser prior to designating a new Portfolio Manager; provided, however,
that, if the services of a Portfolio Manager are no longer available to the
SubAdviser, the SubAdviser may designate an interim Portfolio Manager who (A)
shall be acceptable to the Adviser and (B) shall function for a reasonable
period of time until the SubAdviser designates an acceptable permanent
replacement; (vi) promptly notify the Adviser of any anticipated changes in
the Portfolio Manager, portfolio management, any anticipated changes in the
ownership or management of the SubAdviser, or of material changes in the
control of the SubAdviser, or any other material matter that may require
disclosure to the Fund's Board, shareholders of the Fund or dealers.
The SubAdviser agrees that it shall immediately notify the Adviser and
the Fund (i) in the event that the SEC, or any regulatory body has censured
the SubAdviser; placed limitations upon its activities, functions or
operations; suspended or revoked its registration, if any, or ability to
serve as an investment adviser; or has commenced proceedings or any
investigation that can reasonably be expected to result in any of these
actions; and (ii) despite the fact that SubAdviser is not the fund accounting
agent for the Fund, upon having a reasonable basis for believing that the
Fund has ceased to qualify or might not qualify as a regulated investment
company under Subchapter M of the Code.
(i) Transaction and Portfolio Holdings Information. The SubAdviser
shall on each business day provide the Adviser, the Fund and the Fund's
custodian such information as the Adviser, the Fund and the Fund's custodian
may reasonably request relating to all transactions and portfolio holdings of
the Fund. Without limiting the foregoing, the SubAdviser shall on each
business day prior to 7:00 a.m. Mountain Time provide to the Fund's
accounting agent a list of all transactions and current portfolio holdings
for such business day.
(j) Compliance Program. The SubAdviser will assist the Fund and the
Fund's Chief Compliance Officer ("CCO") in complying with Rule 38a-1 under
the 1940 Act. Specifically, the SubAdviser represents and warrants that it
shall maintain a compliance program in accordance with the requirements of
Rule 206(4)-7 under the Advisers Act, and shall provide the CCO with
reasonable access to information regarding the SubAdviser's compliance
program, which access shall include on-site visits with the SubAdviser as may
be reasonably requested from time to time. In connection with the periodic
review and annual report required to be prepared by the CCO pursuant to Rule
38a-1, the SubAdviser agrees to provide certifications as may be reasonably
requested by the CCO related to the design and implementation of the
SubAdviser's compliance program.
(k) Xxxxxxxx-Xxxxx. The SubAdviser will assist the Adviser, the Fund
and any of its or their trustees, directors, officers, and/or employees in
complying with the provisions of the Xxxxxxxx-Xxxxx Act of 2002 to the extent
such provisions relate to the services to be provided by, and the obligations
of, the SubAdviser hereunder. Specifically, and without limitation to the
foregoing, the SubAdviser agrees to provide certifications to the principal
executive and financial officers of the Fund (the "certifying officers") that
correspond to and/or support the certifications required to be made by the
certifying officers in connections with the preparation and/or filing of the
Fund's Form N-CSRs, N-Qs, N-SARs, shareholder reports, financial statements,
and other disclosure documents or regulatory filings, in such form and
content as agreed to by the Fund, Adviser, and SubAdviser.
(l) Transaction Activity. The SubAdviser will notify the Adviser
promptly in the event that, in the judgment of the SubAdviser, Fund share
transaction activity becomes disruptive to the ability of the SubAdviser to
effectively manage the assets of the Fund consistent with the Fund's
investment objectives and policies.
(m) Assistance. The SubAdviser will provide assistance as may be
reasonably requested by the Adviser in connection with compliance by the Fund
with any current or future legal and regulatory requirements related to the
services provided by the SubAdviser hereunder.
(n) Trading and Trade Settlement. The SubAdviser will, in connection
with the purchase and sale of securities for the Fund, provide such
assistance to the Fund's custodian, as may be reasonably necessary to enable
the custodian to perform its responsibilities with respect to the Fund,
including, but not limited to, assistance related to the settlement of all
portfolio transactions.
3. Independent Contractor. In the performance of its duties
hereunder, the SubAdviser is and shall be an independent contractor and
unless otherwise expressly provided herein or otherwise authorized in
writing, shall have no authority to act for or represent the Fund or the
Adviser in any way or otherwise be deemed an agent of the Fund or the Adviser.
4. Expenses. During the term of this Agreement, SubAdviser will pay
all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other
investments (including brokerage commissions and other transaction charges,
if any) purchased or sold for the Fund. The SubAdviser shall, at its sole
expense, employ or associate itself with such persons or firms as it believes
to be particularly fitted to assist it in the execution of its duties under
this Agreement. Except as otherwise provided in this Agreement or by law,
the SubAdviser shall not be responsible for the Fund's or Adviser's expenses,
which shall include, but not be limited to, organizational and offering
expenses (which include out-of-pocket expenses, but not overhead or employee
costs of the SubAdviser); expenses for legal, accounting and auditing
services; taxes and governmental fees; dues and expenses incurred in
connection with membership in investment company organizations; costs of
printing and distributing shareholder reports, proxy materials, prospectuses,
stock certificates and distribution of dividends; charges of the Fund's
custodians and sub-custodians, administrators and sub-administrators,
registrars, transfer agents, dividend disbursing agents and dividend
reinvestment plan agents; payment for portfolio pricing services to a pricing
agent, if any; registration and filing fees of the SEC; expenses of
registering or qualifying securities of the Fund for sale in the various
states; freight and other charges in connection with the shipment of the
Fund's portfolio securities; fees and expenses of non-interested Trustees;
salaries of shareholder relations personnel; costs of shareholders meetings;
insurance; interest; brokerage costs; and litigation and other extraordinary
or non-recurring expenses. The Fund or the Adviser, as the case may be,
shall reimburse the SubAdviser for any expenses of the Fund or the Adviser as
may be reasonably incurred as specifically provided for in this Agreement or
as specifically agreed to beforehand by Adviser. The SubAdviser shall keep
and supply to the Fund and the Adviser reasonable records of all such
expenses.
5. Compensation. For the services provided and the expenses assumed
with respect to the Fund pursuant to this Agreement, the SubAdviser will be
entitled to the fee listed for the Fund on Exhibit A. Such fee will be
computed daily and payable no later than the tenth (10th) business day
following the end of each month, from the Adviser, calculated as described in
Exhibit A.
The method of determining net assets of the Fund for purposes hereof
shall be the same as the method of determining net assets for purposes of
establishing the offering and redemption price of the shares as described in
the Fund's Prospectus. If this Agreement shall be effective for only a
portion of a month, the aforesaid fee shall be prorated for the portion of
such month during which this Agreement is in effect.
In the event that the investment advisory fee rate paid to the Adviser
by the Fund is reduced, the compensation paid to the SubAdviser hereunder
shall be reduced by the same percentage.
6. Representations and Warranties of SubAdviser. The SubAdviser
represents and warrants to the Adviser and the Fund as follows:
(a) The SubAdviser is registered as an investment adviser under the
Advisers Act;
(b) The SubAdviser is registered as a Commodity Trading Adviser under
the Commodity Exchange Act (the "CEA") with the Commodity Futures Trading
Commission (the "CFTC"), or is not required to register pursuant to an
applicable exemption;
(c) The SubAdviser is a corporation duly organized and properly
registered and operating under the laws of the Commonwealth of Massachusetts
with the power to own and possess its assets, perform its obligations under
this Agreement, and to carry on its business as it is now being, and to be,
conducted;
(d) The execution, delivery and performance by the SubAdviser of this
Agreement are within the SubAdviser's powers and have been duly authorized by
all necessary action and no action by or in respect of, or filing with, any
governmental body, agency or official is required on the part of the
SubAdviser for the execution, delivery and performance by the SubAdviser of
this Agreement, and the execution, delivery and performance by the SubAdviser
of this Agreement do not contravene or constitute a default under (i) any
provision of applicable law, rule or regulation, (ii) the SubAdviser's
governing instruments, or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon the SubAdviser;
(e) The Form ADV of the SubAdviser previously provided to the Adviser
and all amendments to the SubAdviser's Form ADV, which will be provided by
the SubAdviser to the Adviser upon request, is or will be a true and complete
copy of the form as currently filed or as then filed with the SEC and the
information contained therein is accurate and complete in all material
respects and does not omit to state any material fact necessary in order to
make the statements made, in light of the circumstances under which they were
made, not misleading.
(f) The Prospectus, with respect to information relating to and
provided by the SubAdviser and its relationship to, and actions for, the
Fund, contains as of the date hereof or will contain as of the date of
effectiveness of any future Registration Statement filed by the Fund or any
supplement thereto, no untrue statement of any material fact and does not
omit any statement of a material fact which was required to be stated therein
or necessary to make the statements contained therein not misleading.
7. Representations and Warranties of Adviser. The Adviser
represents and warrants to the SubAdviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act;
(b) The Adviser has filed a notice of exemption pursuant to Rule 4.14
under the CEA with the CFTC and the National Futures Association or is not
required to file such exemption;
(c) The Adviser is a corporation duly organized and validly existing
under the laws of the State of Colorado with the power to own and possess its
assets, perform its obligations under this Agreement, and to carry on its
business as it is now being, and to be, conducted;
(d) The execution, delivery and performance by the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized by
all necessary action, and no action by or in respect of, or filing with, any
governmental body, agency or official is required on the part of the Adviser
for the execution, delivery and performance by the Adviser of this Agreement,
and the execution, delivery and performance by the Adviser of this Agreement
do not contravene or constitute a default under (i) any provision of
applicable law, rule or regulation, (ii) the Adviser's governing instruments,
or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Adviser;
(e) The Adviser acknowledges that it received a copy of the
SubAdviser's Form ADV prior to the execution of this Agreement;
(f) The Adviser and the Fund have duly entered into the Advisory
Agreement pursuant to which the Fund authorized the Adviser to enter into
this Agreement; and
(g) The Adviser will take such steps as are necessary to ensure that
the Fund's shares are duly authorized and registered for sale to the extent
that such shares are offered for sale.
(h) The Adviser has been granted with full power and authority to
enter into spot and forward foreign exchange contracts, to perform its
obligations under such foreign exchange contracts and to appoint the
SubAdviser to enter into such foreign exchange contracts on the Fund's or the
Adviser's behalf. The SubAdviser has been granted full power and authority to
enter into foreign exchange contracts as agent on the behalf of the Fund or
the Adviser and to give instructions for settlement of the same and has full
authority to instruct the Fund's custodian in conformity with the Fund's
mandate. In the event of the termination of this Agreement, the SubAdviser
may offer counterparties the ability to leave open any existing foreign
exchange contracts or to close them out at prevailing market rates.
8. Delivery of Documents to the Adviser. The SubAdviser has
furnished the Adviser with true, accurate and complete copies of the
following:
(a) The SubAdviser's Form ADV as filed with the SEC, as of the date
hereof;
(b) Separate lists of persons who the SubAdviser wishes to have
authorized to give written and oral instructions to custodian(s) of the Fund;
(c) The Code of Ethics of the SubAdviser, as in effect on the date
hereof;
and
(d) The Proxy Voting Policies and Procedures of the SubAdviser,
as in effect on the date hereof.
The SubAdviser will furnish the Adviser from time to time with copies,
properly certified or otherwise authenticated, of all material amendments of
or supplements to the foregoing.
9. Survival of Representations and Warranties; Duty to Update
Information. All representations and warranties made by the SubAdviser and
the Adviser pursuant to Sections 6 and 7, respectively, shall survive the
termination of this Agreement. The parties hereto shall promptly notify each
other in writing upon becoming aware that any of the foregoing
representations and warranties are no longer true and the SubAdviser shall
promptly update all information and documents which the SubAdviser is
required to provide to the Adviser hereunder.
10. Liability and Indemnification.
(a) Liability. The SubAdviser shall exercise its best judgment in
rendering the services in accordance with the terms of this Agreement. In
the absence of willful misfeasance, bad faith or gross negligence on the part
of the SubAdviser or a reckless disregard of its duties hereunder, the
SubAdviser, each of its affiliates and all respective partners, officers,
Trustees and employees ("Affiliates") and each person, if any, who within the
meaning of the Securities Act controls the SubAdviser ("Controlling Persons")
shall not be liable for any error of judgment or mistake of law and shall not
be subject to any expenses or liability to the Adviser, the Fund or any of
the Fund's shareholders, in connection with the matters to which this
Agreement relates.
(b) The SubAdviser agrees to indemnify and hold harmless the Adviser,
its Affiliates and Controlling Persons and their respective officers,
Trustees and employees, against any and all losses, claims, damages,
liabilities or litigation (including reasonable attorneys' fees), to which
the Adviser or such Affiliates or Controlling Persons of the Adviser or their
respective officers, Trustees and employees may become subject under the 1940
Act, the 1933 Act, the Advisers Act, or any other statute, law, rule or
regulation, arising directly out of the SubAdviser's responsibilities
hereunder (1) to the extent of and as result of the willful misfeasance, bad
faith, negligence, or reckless disregard of, the SubAdviser's obligations
and/or duties under this Agreement by the SubAdviser, any of the SubAdviser's
employees or representatives or any other affiliate of or any person acting
on behalf of the SubAdviser, or (2) as a result of any untrue statement of a
material fact contained in the Fund's registration statement, including any
amendment thereof or any supplement thereto, or the omission of a material
fact required to be stated in such registration statement necessary to make
the statements therein not misleading, if such a statement or omission was
made in reliance upon and in conformity with written information furnished by
the SubAdviser to the Fund or written information furnished by the Adviser to
the SubAdviser for review and such information is approved or deemed approved
by the SubAdviser; provided, however, that in no case is the SubAdviser's
indemnity hereunder deemed to protect a person against any liability to which
any such person would otherwise be subject by reason of willful misfeasance,
bad faith or negligence in performance of its duties or by reason of its
reckless disregard of its obligations and duties under this Agreement.
(c) The Adviser agrees to indemnify and hold harmless the SubAdviser,
its Affiliates and each Controlling Person of the SubAdviser, if any, and
their respective officers, Trustees and employees against any and all losses,
claims, damages, liabilities or litigation (including reasonable attorneys'
fees), to which the SubAdviser or such Affiliates or Controlling Person of
the SubAdviser or their respective officers, Trustees and employees may
become subject under the Act, the 1933 Act, the Advisers Act, or any other
statute, law, rule or regulation, arising out of the Adviser's
responsibilities as investment manager of the Fund or the Adviser's
obligations hereunder (1) to the extent of and as a result of the willful
misfeasance, bad faith, or negligence by the Adviser, any of the Adviser's
employees or representatives or any affiliate of or any person acting on
behalf of the Adviser; provided, however, that in no case shall the Adviser's
indemnity hereunder be deemed to protect a person against any liability to
which any such person would otherwise be subject by reason of willful
misfeasance, bad faith or negligence in the performance of its duties or by
reason of its reckless disregard of its obligations and duties under this
Agreement.
11. Duration and Termination.
(a) Duration. Unless sooner terminated, this Agreement shall remain
in effect until two years from the date of execution hereof, and thereafter
shall continue automatically for successive annual periods, provided such
continuance is specifically approved at least annually by (i) the Fund's
Board or (ii) vote by the holders of a "majority" (as defined in the 0000
Xxx) of the outstanding voting securities of the Fund; provided that in
either event its continuance also is approved by a majority of the Fund's
Trustees who are not "interested persons" (as defined in the 0000 Xxx) of any
party to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval.
(b) Termination. Notwithstanding whatever may be provided herein to
the contrary, this Agreement may be terminated at any time, without payment
of any penalty:
(i) By vote of a majority of the Fund's Board, or by vote of a
majority of the outstanding voting securities of the Fund, or by the
Adviser, in each case, on not more than 60 days' written notice to the
SubAdviser;
(ii) By the non-defaulting party immediately upon receipt
of written notice from the non-defaulting party to the defaulting party
in the event of a material breach of any provision of this Agreement by
the defaulting party; or
(iii) By the SubAdviser on not more than 60 days' written
notice to the Adviser and the Fund.
The notice provided for in (i) and (iii) above may be waived by
the party required to be notified.
This Agreement shall not be assigned (as such term is defined in the
0000 Xxx) and shall terminate automatically in the event of its assignment or
upon the termination of the Advisory Agreement. In the event of an
assignment that occurs solely due to the change of control of the SubAdviser,
any necessary approvals will be obtained at the sole expense of the
SubAdviser.
(c) Transactions in Progress Upon Termination. The Adviser and
SubAdviser will cooperate with each other to ensure that portfolio or other
transactions in progress at the date of termination of this Agreement shall
be completed by the SubAdviser in accordance with the terms of such
transactions, and to this end the SubAdviser shall provide the Adviser with
all necessary information and documentation to secure the implementation
thereof.
12. Duties of the Adviser. 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. Nothing contained in this Agreement
shall obligate the Adviser to provide any funding or other support for the
purpose of directly or indirectly promoting investments in the Fund.
13. Reference to Adviser and SubAdviser.
(a) Neither the Adviser nor any Affiliate or agent of it shall make
reference to or use the name of SubAdviser or any of its Affiliates, or any
of their clients, except as provided herein and except for references
concerning the identity of and services provided by the SubAdviser to the
Fund, which references shall not differ in substance from those included in
the Prospectus and this Agreement, in any advertising or promotional
materials without the prior approval of SubAdviser, which approval shall not
be unreasonably withheld or delayed. The Adviser hereby agrees to make all
reasonable efforts to cause the Fund and any Affiliate thereof to satisfy the
foregoing obligation.
(b) Neither the SubAdviser nor any Affiliate or agent of it shall
make reference to or use the name of the Fund, the Adviser or any of their
respective Affiliates, or any of their clients, except references concerning
the identity of the Fund or the Adviser, which references shall not differ in
substance from those included in the Prospectus and this Agreement, in any
advertising or promotional materials without the prior approval of
SubAdviser, which approval shall not be unreasonably withheld or delayed.
The SubAdviser hereby agrees to make all reasonable efforts to cause the Fund
and any Affiliate thereof to satisfy the foregoing obligation.
14. Amendment. This Agreement may be amended only by mutual consent
of the parties, provided that the terms of any material amendment shall be
approved by: a) the Fund's Board or by a vote of a majority of the
outstanding voting securities of the Fund (as required by the 0000 Xxx) and
b) the vote of a majority of those Trustees of the Fund who are not
"interested persons" of any party to this Agreement cast in person at a
meeting called for the purpose of voting on such approval, if such approval
is required by applicable law.
15. Confidentiality. Subject to the duties of the SubAdviser to
comply with applicable law, including any demand of any regulatory or taxing
authority having jurisdiction, the SubAdviser shall treat as confidential all
information pertaining to the Fund and the actions of the SubAdviser, the
Adviser and the Fund in respect thereof.
16. Notice. Any notice that is required to be given by the parties
to each other under the terms of this Agreement shall be in writing,
delivered, or mailed postpaid to the other parties, or transmitted by
facsimile with acknowledgment of receipt, to the parties at the following
addresses or facsimile numbers, which may from time to time be changed by the
parties by notice to the other party:
(a) If to the SubAdviser:
Baring Asset Management, Inc.
Independence Wharf
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to:
Baring Asset Management, Inc.
Independence Wharf
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Legal and Compliance Department
Facsimile: (000) 000-0000
(b) If to the Adviser:
OppenheimerFunds, Inc.
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Such notice shall be deemed effective when provided in accordance with this
section 16.
17. Jurisdiction. This Agreement shall be governed by and construed
consistent with the Advisory Agreement and in accordance with substantive
laws of the State of New York without reference to choice of law principles
thereof and in accordance with the 1940 Act. In the case of any conflict,
the 1940 Act shall control.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, all of which shall
together constitute one and the same instrument.
19. Certain Definitions. For the purposes of this Agreement and
except as otherwise provided herein, "interested person," "affiliated
person," and "assignment" shall have their respective meanings as set forth
in the 1940 Act, subject, however, to such exemptions as may be granted by
the SEC.
20. Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
21. Severability. If any provision of this Agreement shall be held
or made invalid by a court decision or applicable law, the remainder of the
Agreement shall not be affected adversely and shall remain in full force and
effect.
22. Survival. The provisions of Sections 2(f), 9, 10, 11(c), 13, 15
and 16 will survive termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
ADVISER
OppenheimerFunds, Inc.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------------
Xxxxxx X. Xxxx
Executive Vice President and General Counsel
SUBADVISER
Baring Asset Management, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
Chief Operating Officer
EXHIBIT A TO
SUBADVISORY AGREEMENT
SubAdvisory Fee
The Adviser will pay the SubAdviser a fee equal to 40% of the
investment management fee collected by the Adviser from the Fund, which shall
be calculated after any investment management fee waivers (i) required by the
Fund's Board or (ii) voluntarily agreed to by the Adviser with the
SubAdviser's concurrence. Notwithstanding the foregoing, if the Adviser,
without demand from the Fund's Board, agrees, without the SubAdviser's
concurrence, to voluntarily waive a portion of the investment management fee
the Fund is required to pay to the Adviser, the SubAdviser's fee hereunder
shall be based upon the investment management fee the Fund would have paid
but for any such waiver agreed to by the Adviser in its sole discretion.
