SUB-ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of the 24th day of June, 1996.
AMONG:
(1) Xxxxx Xxxxx Management, a Massachusetts business trust (the
"Administrator),
(2) Worldwide Health Sciences Portfolio, a New York trust the principal
office of which is at IBT Trust Company (Cayman), Ltd, The Bank of Nova Scotia
Building, Xxxxxx Town, Grand Cayman, Cayman Island, British West Indies (the
"Trust"),
AND
(3) IBT Trust Company (Cayman), Ltd., a company duly incorporated in the
Cayman Islands the Registered Office of which is at The Bank of Nova Scotia
Building, Xxxxxx Town, Grand Cayman, Cayman Islands, British West Indies
aforesaid (the "Sub-Administrator").
WHEREAS:
(A) The Trust is registered under the United States Investment
Company Act of 1940 as a management investment company.
(B) The Administrator pursuant to an Administration Agreement
dated June 24, 1996 has agreed to provide general
administration services to the Trust, and the Administrator
and the Trust wish to appoint the Sub-Administrator as general
administrator of the Trust outside the United States upon the
terms and conditions hereinafter appearing.
AGREEMENT:
1. (a) In this Agreement the words standing in the first column of the
table next hereinafter contained shall bear the meanings set opposite to them in
the second column thereof, if not inconsistent with the subject or context:
Words Meanings
"Declaration of Trust" The Declaration of Trust of the Trust for the
time being in force.
"Trustees" The Trustees of the Trust for the time being,
or as the case may be, the Trustees assembled as
a board.
"Registration Statement" The Registration Statement of the Trust as amended
and filed with the Securities and Exchange
Commission.
(b) Unless the context otherwise requires and except as varied or
otherwise specified in this agreement, words and expressions
contained in this agreement shall bear the same meaning as in
the Registration Statement PROVIDED THAT any alteration or
amendment of the Registration Statement shall not be effective
for the purposes of this Agreement unless the administrator
shall by endorsement hereon or otherwise have assented in
writing thereto.
(c) The headings are intended for convenience only and shall not affect the
construction of this Agreement.
APPOINTMENT OF ADMINISTRATOR
2. The Administrator and the Trust hereby appoint the Sub-Administrator
and the Sub-Administrator hereby agrees to act as general administrator
of the Trust, acting solely outside the United States, in accordance
with the terms and conditions hereof with effect from the date hereof.
DUTIES AS SUB-ADMINISTRATOR
3. The Sub-Administrator shall from time to time deliver such information,
explanations and reports to the Trust as the Trust may reasonably
require regarding the conduct of the business of the Trust.
4. The Sub-Administrator shall provide the principal office of the Trust;
and
(a) conduct on behalf of the Trust all the day to day business of
the Trust outside the United States, other than investment
activities, and provide or procure such office accommodation,
secretarial staff and other facilities as may be required for
the purposes of fulfilling its duties under this Agreement;
(b) receive and approve notices of subscriptions and redemptions
of Trust interests;
(c) review and arrange execution and filing with the U.S.
Securities and Exchange Commission (the "SEC") of amendments
to the Trust's Registration Statement, and of any other
regulatory filings required to be made by the Trust which have
been prepared by the Administrator or the Trust;
(d) deal with and reply to all correspondence and other
communications addressed to the Trust at its principal office,
whether in relation to the subscription, purchase or
redemption of interests in the Trust or otherwise PROVIDE THAT
in the event of any dispute in connection with the issue,
ownership, redemption or otherwise of any interests the matter
shall be referred to the Trustees acting outside the United
States, and the Sub-Administrator shall take such action as
may reasonably be required by the Trust;
(e) at any time during business hours to permit any duly appointed
agent or representative of the Administrator or the Trust, at
the expense of the Administrator or the Trust, to inspect the
Register of Holders or any other documents or records in the
possession of the Sub-Administrator and give such agent or
representative during business hours all information,
explanations and assistance as such agent or representative
may reasonably require, and permit representatives of the U.S.
Securities and Exchange Commission to examine books and
records of the Trust;
(f) maintain and safeguard the Register of Holders of Interests
and other documents in connection therewith and enter on such
Register all original issues and allotments of and all
increases, decreases and redemptions of such interests, all in
accordance with the provisions of the Declaration of Trust and
Trustee instructions and to prepare all such lists of Holders
of Interests of the Trust and account numbers of Holders as
may be required by the Trust.
DEALINGS OF THE SUB-ADMINISTRATOR
5. Nothing herein contained shall prevent the Sub-Administrator or any
firm, person or company associated in any way with the
Sub-Administrator from contracting with or entering into any financial,
banking or other transaction with the Trust, any shareholder or any
company or body of persons any of whose securities are held by or for
the account of the Trust or from being interested in such transaction.
6. Nothing herein contained shall prevent the Sub-Administrator or any
associate of the Sub-Administrator from acting as administrator or
general corporate manager or in any other capacity whatsoever for any
other company or body of persons on such terms as the Sub-Administrator
or such associate may arrange, and the Sub-Administrator or such
associate shall not be deemed to be affected with notice of or to be
under any duty to disclose to the Trust any fact or thing which may
come to its knowledge or that of any of its servants or agents in the
course of so doing or in any manner whatever otherwise than in the
course of carrying out its duties hereunder.
AGENTS AND ADVICE
7. The Sub-Administrator shall be at liberty in the performance of
its duties and in the exercise of any of the powers vested in it
hereunder to act by responsible officers or a responsible officer
for the time being and to employ and pay an agent who may (but
need not) be an associate of the Sub-Administrator to perform or
concur in performing any of the services required to be performed
hereunder and may act or rely upon the opinion or advice or any
information obtained from any broker, lawyer, valuer, surveyor,
auctioneer or other expert, whether reporting to the Trust, to
the Administrator to the Sub-Administrator, or not, and the
Sub-Administrator shall not be responsible for any loss
occasioned by its so acting. Any officer or agent acting for the
Sub-Administrator on behalf of the Trust shall act only outside
the United States, to the extent required by U.S. tax law. It is
understood and agreed that until IBT Trust Company (Cayman), Ltd.
has received its administrator's license in the Cayman Islands,
The Bank of Nova Scotia Trust Company (Cayman) Ltd. shall perform
the functions of the Sub-Administrator set forth in this
Agreement.
8. The Sub-Administrator may at the expense of the Adminstrator refer any
legal question to the legal advisers of the Administrator or the Trust
for the time being (whose name shall from time to time be notified by
or on behalf of the Administrator or the Trust to the
Sub-Administrator) or legal advisers that it may select with the prior
approval of the Administrator or the Trust and may authorize any such
legal adviser to take the opinion of counsel on any matter of
difficulty and may act on any opinion given by such legal advisers or
counsel without being responsible for the correctness thereof or for
any result which may follow from so doing.
REMUNERATION
9. In consideration of the services performed by the Sub-Administrator
hereunder the Sub-Administrator shall be entitled to receive from the
Administrator fees as are agreed upon by the Administrator and
Sub-Administrator and set forth in Schedule A of this Agreement.
REIMBURSEMENT BY THE ADMINISTRATOR TO THE SUB-ADMINISTRATOR
10. In addition to the fees set out in clause 9 above the Administrator
shall reimburse to the Sub-Administrator all reasonable costs and
expenses incurred by the Sub-Administrator in the performance of its
duties hereunder.
LIABILITY AND INDEMNITY
11. (a) The Sub-Administrator, its subsidiaries, agents, advisors,
shareholders, directors, officers, servants and employees
shall not be liable to the Administrator or the Trust or a
Holder of Interests in the Trust, or any of its or their
successors or assigns, except for loss arising to the
Administrator or the Trust by reason of act of, or omissions
due to negligence or willful default on the part of any such
persons as aforesaid.
(b) The Administrator and the Trust shall indemnify, defend and hold
harmless the Sub-Administrator and each of its subsidiaries, agents, advisors,
shareholders, directors, officers, servants and employees from and against any
loss, liability, damage, cost or expense (including legal fees and expenses and
any amounts paid in settlement), resulting from its or their actions or
capacities hereunder or otherwise concerning the business or activities
undertaken on behalf of the Administrator or the Trust under this Agreement or
sustained by any of them including (without restricting the generality of the
foregoing) loss sustained as a result of delay, mis-delivery or error in
transmission of any cable, telefax, telex or telegraphic communication. Subject
as aforesaid all actions taken by the Sub-Administrator shall be taken in good
faith and in the reasonable belief that such actions are taken in the best
interests of the Trust PROVIDED THAT termination of any action, proceeding,
demand, claim or lawsuit by judgment, order or settlement shall not, or itself,
create a presumption that the conduct in question was not undertaken in good
faith with due care and in a manner reasonably believed to be in or not opposed
to the best interest of the Trust. The right of indemnification hereunder shall
remain in full force and effect regardless of the expiration or termination of
this Agreement.
RIGHT TO ADVISE AND MANAGE THE FUNDS OR OTHERS
12. The Administrator or the Trust acknowledge that an important part of
the Sub-Administrator's business is, and that it derives profits from,
managing the affairs of its affiliates and other entities and that the
Sub-Administrator will be managing such affiliates and entities during
the same period that it is managing the affairs of the Trust. The
Sub-Administrator and its officers and employees shall be free to
manage such other affiliates and entities and to retain for its own or
their benefit all profits and revenues derived therefrom PROVIDED THAT
the Sub-Administrator shall not knowingly prefer affiliates of the
Sub-Administrator or other entities to the detriment of the affairs of
the Trust.
RESTRICTIONS
13. None of the parties hereto shall do or commit any act, matter or thing
which would or might prejudice or bring into disrepute in any manner
the business or reputation of the other or any director, officer or
employee of the other.
14. Except as required by the law and save as contemplated by the
Declaration of Trust, none of the parties hereto shall either before or
after the termination of this Agreement disclose to any person not
authorized by the other party to receive the same information relating
to such party or to the affairs of such party of which the party
disclosing the same shall have become possessed during the period of
this agreement, and both parties shall use all reasonable endeavors to
prevent any such disclosure as aforesaid.
TERMINATION
15. The Sub-Administrator shall be entitled to resign its appointment
hereunder:
(a) by giving not less than two (2) months' notice in writing to the
Administrator and the Trust;
(b) if the Administrator or the Trust shall commit any breach of
its obligations under this Agreement and shall fail within ten
days of receipt of notice served by the Sub-Administrator
requiring it so to do, to make good such breach; and
(c) at any time without such notice as is referred to in
sub-paragraphs (a) and (b) of this clause if the Administrator
or the Trust shall go into liquidation (other than for the
purpose of reconstruction or amalgamation upon terms
previously approved in writing by the Sub-Administrator) or if
a receiver of any of the assets of the Administrator or the
Trust is appointed.
16. The Administator or the Trust may terminate the appointment of the
Sub-Administrator:
(a) by giving no less than two (2) months' notice in writing to the
Sub-Administrator;
(b) if the Sub-Administrator shall commit any breach of its
obligations under this Agreement and shall fail within ten
days of receipt of notice served by the Administrator or the
Trust requiring it so to do, to make good such breach; and
(c) at any time without such notice as is referred to in
sub-paragraphs (a) and (b) or this clause if the
Sub-Administrator goes into liquidation (except a voluntary
liquidation for the purpose of reconstruction or amalgamation
upon terms previously approved in writing by the Administrator
and the Trust) or if a receiver is appointed of any of the
assets of the Sub-Administrator.
17. On termination of the appointment of the Sub-Administrator under the
provisions of the preceding clauses, such termination shall be without
prejudice to any antecedent liability of the Sub-Administrator, the
Administrator or the Trust. The Sub-Administrator shall be entitled to
receive all fees and other moneys accrued up to the date of such
termination but shall not be entitled to compensation in respect of
such termination.
18. The Sub-Administrator shall, on the termination of its appointment:
(a) Forthwith hand over to the Administrator or the Trust or as it shall
direct all books of account, registers, correspondence and records of all and
every description relating to the affairs of the Trust which are in the
Sub-Administrator's possession but not including any promotional material
bearing the style or any trade xxxx or symbol of the Sub-Administrator. The
Sub-Administrator shall also in such circumstance deliver or cause to be
delivered to the succeeding Sub-Administrator or as the Administrator or the
Trust shall direct all funds or other properties of the Trust deposited with or
otherwise held by the Sub-Administrator or to its order hereunder and do all
such further acts as the Administrator or the Trust may reasonably require of
it.
(b) have the right by written request to require the Trust in its
Registration Statement and any other material made available to investors and
prospective investors to (as may reasonably be approved by the
Sub-Administrator) indicate that the Sub-Administrator and its delegate(s) (if
any) have ceased to be its Sub-Administrator.
REPRESENTATIONS AND WARRANTIES
19. (a) The Sub-Administrator represents and warrants to the Administrator
and the Trust as follows:
(i) The Sub-Administrator has full power and authority to
enter into and perform this Agreement and this
Agreement has been duly authorized by all requisite
corporate action, executed and delivered by or on
behalf of the Sub-Administrator and constitutes a
valid and binding agreement of the Sub-Administrator.
(ii) Neither the execution, delivery nor performance of
this Agreement by the Sub-Administrator will result
in a breach of violation of any statute, law, rule or
of the material provisions of any debenture or other
material agreement binding upon the Sub-Administrator
and no consent, approval, authorization or license by
any court or governmental agency is required for the
execution, delivery or performance of this Agreement
by the Sub-Administrator, except such as have been
obtained by the Sub-Administrator.
(b) the Administrator and the Trust represent and warrant to the
Sub-Administrator as follows:
(i) The Administrator and the Trust have full power and
authority to enter into and perform this Agreement
and this Agreement has been duly authorized by all
requisite corporate action, executed and delivered by
or on behalf of the Administrator and the Trust and
constitutes a valid and binding agreement of the
Administrator and the Trust.
(ii) Neither the execution, delivery nor performance of
this Agreement by the Administrator and the Trust
will result in a breach of violation of any statute,
law, rule or of the material provisions of any
debentures or other material agreement binding upon
the Administrator and the Trust and no consent,
approval, authorization or license by any court or
governmental agency is required for the execution,
delivery or performance of this Agreement by the
trust except such as have been obtained by the
Administrator and the Trust.
INDEPENDENT CONTRACTOR
20. For all purposes of this Agreement, the Sub-Administrator shall be an
independent contractor and not an employee or dependent agent of the
Administrator or the Trust, nor shall anything herein be construed as
making the Administrator or the Trust a partner or co-venturer with the
Sub-Administrator or any of its affiliates or other clients. Except as
provided in this Agreement, the Sub-Administrator shall have no
authority to bind, obligate or represent the Administrator or the
Trust.
COMPLETE AGREEMENT
21. This Agreement constitutes the entire agreement among the parties
relating to the subject matter hereof.
ASSIGNMENT
22. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns but may not be assigned by any party
without the express written consent of the other party which shall not
be reasonably withheld or delayed.
23. This Agreement may not be amended except by the written consent of each
of the parties hereto.
NOTICES
24. Any notice delivered under this agreement shall be in writing and
signed by a duly authorized officer of the party giving such notice and
shall be delivered personally or sent by registered or certified mail,
postage prepaid, to the registered office of the party for whom it is
intended. A notice so posted shall be deemed to be served at the
expiration of seventy-two (72) hours after posting and in proving
service by post it shall be sufficient to prove that an envelope
containing the notice was duly addressed, stamped and posted.
GOVERNING LAW
25. This Agreement shall be governed by and construed in accordance with
the laws of the Cayman Islands and the parties hereto agree to submit
to the non-exclusive jurisdiction of the Courts of the Cayman Islands.
IN WITNESS WHEREOF this Agreement has been duly executed for an on behalf of the
parties hereto in manner binding upon them the day and year first above written:
written.
Signed by
for and on behalf of the said
Xxxxx Xxxxx Management /s/ H. Day Xxxxxxx, Jr.
Vice President
in the presence of:
Signed by
for and on behalf of the said
Worldwide Health Sciences Portfolio: /s/ Xxxxx X. Xxxxxx
President
signed in Xxxxxxxx, Bermuda
SIGNED by
for and on behalf of the said
IBT Trust Company (Cayman), Ltd.: /s/ Xxxxxx X. Xxxxxxx, XX
Director
signed in Toronto, Ontario
IBT Trust Company (Cayman), Ltd.
Fee Schedule for Sub-Administration Services
Xxxxx Xxxxx
Annual Offshore Sub-Administration Fee $ 1,500
This fee will be charged annually for the following Principal Office
and Sub-Administrative services.
Principal Office
The following services will be provided for the Portfolio (Hub):
o Register Portfolio/Fund with Inspector of Financial Services
o Safekeeping of original contracts, agreements, and board
minutes o Provide officers to Fund o Ensure compliance with
Cayman Islands Law
Administrative Services
The following services will be provided for the Portfolio (Hub):
o Authorize expense budget and amendments o Authorize expense
payments o Mail Board materials o Maintain shareholder
register o Authorize Subscriptions and redemptions o Authorize
Fund distributions (if Applicable)
o Distribute annual, semi-annual, quarterly reports to
shareholders
