CSAM LTD. SUB-INVESTMENT ADVISORY AGREEMENT
____________________, 2000
Credit Suisse Asset Management Limited
Beaufort House
00 Xx. Xxxxxxx Xxxxxx
Xxxxxx, XX 0X 0XX
Dear Sirs:
________________________________ Fund, Inc. (the "Fund"), a
corporation organized and existing under the laws of the State of Maryland, and
Credit Suisse Asset Management, LLC, as investment adviser to the Fund
("Adviser"), herewith confirms their agreement with Credit Suisse Asset
Management Limited (the "Sub-Adviser"), a __________ organized under the laws of
______________, as follows:
1. INVESTMENT DESCRIPTION; APPOINTMENT
The Fund desires to employ the capital of the Fund by investing and
reinvesting in securities of the kind and in accordance with the limitations
specified in the Fund's Articles of Incorporation, as may be amended from time
to time (the "Articles of Incorporation"), and in the Fund's Prospectus(es) and
Statement(s) of Additional Information, as from time to time in effect (the
"Prospectus" and "SAI," respectively), and in such manner and to such extent as
may from time to time be approved by the Board of Directors of the Fund. Copies
of the Prospectus, SAI and Articles of Incorporation have been or will be
submitted to the Sub-Adviser. The Fund agrees to provide the Sub-Adviser copies
of all amendments to the Prospectus and SAI on an on-going basis. The Fund
employs Adviser as its investment adviser. Adviser desires to employ and hereby
appoints the Sub-Adviser to act as sub-investment adviser to the Fund upon the
terms set forth in this Agreement. The Sub-Adviser accepts the appointment and
agrees to furnish the services set forth below for the compensation provided for
herein.
2. SERVICES AS SUB-INVESTMENT ADVISER
(a) Subject to the supervision and direction of Adviser, the
Sub-Adviser will assist Adviser in providing investment advisory and portfolio
management advice to the Fund in accordance with (a) the Articles of
Incorporation, (b) the Investment Company Act of 1940, as amended (the "1940
Act"), and the Investment Advisers Act of 1940, as amended (the "Advisers Act"),
and all applicable Rules and Regulations of the Securities and Exchange
Commission (the "SEC") and all other applicable laws and regulations, and (c)
the Fund's investment objective and policies as stated in the Prospectus and SAI
and investment
parameters provided by Adviser from time to time. In connection
therewith, the Sub-Adviser will provide the following services:
(i) providing a continuous investment program for the Fund, including
investment research and management with respect to securities,
investments, cash and cash equivalents in the Fund's portfolio;
(ii) determining whether to purchase, retain or sell securities and
other investments (collectively, "Investments") on behalf of the
Fund. The Sub-Adviser is hereby authorized to execute, or place
orders for the execution of, Investments on behalf of the Fund;
(iii) monitoring the execution of orders for the purchase or sale of
Investments and the settlement and clearance of those orders;
(iv) exercising voting rights in respect of Investments; and
(v) providing reports to the Fund's Board of Directors for
consideration at quarterly meetings of the Board on Investments
and furnishing the Fund's Board of Directors with such periodic
and special reports as the Fund may reasonably request.
(b) In connection with the performance of the services of the
Sub-Adviser provided for herein, the Sub-Adviser: (i) will furnish Adviser with
such periodic and special reports as Adviser may reasonably request, and (ii)
may contract at its own expense with third parties for the acquisition of
research, clerical services and other administrative services that would not
require such parties to be required to register as an investment adviser under
the Advisers Act; provided that the Sub-Adviser shall remain liable for the
performance of its duties hereunder.
3. EXECUTION OF TRANSACTIONS
(a) The Sub-Adviser will execute transactions for the Fund only
through brokers or dealers appearing on a list of brokers and dealers approved
by Adviser. In executing transactions for the Fund, selecting brokers or dealers
and negotiating any brokerage commission rates, the Sub-Adviser will use its
best efforts to seek the best overall terms available. In assessing the best
overall terms available for any portfolio transaction, the Sub-Adviser will
consider all factors it deems relevant including, but not limited to, the
breadth of the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and
the reasonableness of any commission for the specific transaction and for
transactions executed through the broker or dealer in the aggregate. In
selecting brokers or dealers to execute a particular transaction and in
evaluating the best overall terms available, to the extent that the execution
and price offered by more than one broker or dealer are comparable the
Sub-Adviser may consider any brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934) provided to the
Sub-Adviser or to Adviser for use on behalf of the Fund or other clients of the
Sub-Adviser or Adviser.
(b) It is understood that the services of the Sub-Adviser are not
exclusive, and nothing in this Agreement shall prevent the Sub-Adviser from
providing similar services to other investment companies or from engaging in
other activities, provided that those activities do not adversely affect the
ability of the Sub-Adviser to perform its services under this Agreement. The
Fund and Adviser further understand and acknowledge that the persons employed by
the Sub-Adviser to assist in the performance of its duties under this Agreement
will not devote their full time to that service. Nothing contained in this
Agreement will be deemed to limit or restrict the right of the Sub-Adviser or
any affiliate of the Sub-Adviser to engage in and devote time and attention to
other businesses or to render services of whatever kind or nature, provided that
doing so does not adversely affect the ability of the Sub-Adviser to perform its
services under this Agreement.
(c) 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 of other investment
advisory clients of the Sub-Adviser, the Sub-Adviser may, to the extent
permitted by applicable laws and regulations, but shall not be obligated to,
aggregate the securities to be so sold or purchased with those of its other
clients. In such event, allocation of the securities so purchased or sold, as
well as the expenses incurred in the transaction, will be made by the
Sub-Adviser in a manner that is fair and equitable, in the judgment of the
Sub-Adviser, in the exercise of its fiduciary obligations to the Fund and to
such other clients. The Sub-Adviser shall provide to Adviser and the Fund all
information reasonably requested by Adviser and the Fund relating to the
decisions made by the Sub-Adviser regarding allocation of securities purchased
or sold, as well as the expenses incurred in a transaction, among the Fund and
the Sub-Adviser's other investment advisory clients.
(d) In connection with the purchase and sale of securities for the
Fund, the Sub-Adviser will provide such information as may be reasonably
necessary to enable the custodian and co-administrators to perform their
administrative and recordkeeping responsibilities with respect to the Fund.
4. DISCLOSURE REGARDING THE SUB-ADVISER
(a) The Sub-Adviser has reviewed the disclosure about the Sub-Adviser
contained in the Fund's registration statement and represents and warrants that,
with respect to such disclosure about the Sub-Adviser or information related,
directly or indirectly, to the Sub-Adviser, such registration statement
contains, as of the date hereof, no untrue statement of any material fact and
does not omit any statement of a material fact which is required to be stated
therein or necessary to make the statements contained therein not misleading.
(b) The Sub-Adviser agrees to notify Adviser and the Fund promptly of
(i) any statement about the Sub-Adviser contained in the Fund's registration
statement that becomes untrue in any material respect, (ii) any omission of a
material fact about the Sub-Adviser in the Fund's registration statement which
is required to be stated therein or necessary to make the statements contained
therein not misleading, or (iii) any reorganization or change in the
Sub-Adviser, including any change in its ownership or key employees.
(c) Prior to the Fund or Adviser or any affiliated person (as defined
in the 1940 Act, an "Affiliate") of either using or distributing sales
literature or other promotional material referring to the Sub-Adviser
("Promotional Material"), the Fund or Adviser, where applicable, shall forward
such material to the Sub-Adviser and shall allow the Sub-Adviser reasonable time
to review the material. The Sub-Adviser will not act unreasonably in its review
of Promotional Material and the Fund or Adviser, where applicable, will use all
reasonable efforts to ensure that all Promotional Material used or distributed
by or on behalf of the Fund or Adviser will comply with the requirements of the
Advisers Act, the 1940 Act and the rules and regulations promulgated thereunder.
(d) The Sub-Adviser has supplied Adviser and the Fund copies of its
Form ADV with all exhibits and attachments thereto and will hereinafter supply
Adviser and the Fund, promptly upon preparation thereof, copies of all
amendments or restatements of such document.
5. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE SUB-ADVISER
(a) The Sub-Adviser represents and warrants that it is a duly
registered investment adviser under the Advisers Act, a duly registered
investment adviser in any and all states of the United States in which the
Sub-Adviser is required to be so registered and has obtained all necessary
licenses and approvals in order to perform the services provided in this
Agreement. The Sub-Adviser covenants to maintain all necessary registrations,
licenses and approvals in effect during the term of this Agreement.
(b) The Sub-Adviser represents that it has read and understands the
Prospectus and SAI and warrants that in investing the Fund's assets it will use
all reasonable efforts to adhere to the Fund's investment objectives, policies
and restrictions contained therein.
(c) The Sub-Adviser represents that it has adopted a written Code of
Ethics in compliance with Rule 17j-1 under the 1940 Act and will provide the
Fund with any amendments to such Code.
6. COMPLIANCE
(a) The Sub-Adviser agrees that it shall promptly notify Adviser and
the Fund (i) in the event that the SEC or any other regulatory authority has
censured its activities, functions or operations; suspended or revoked its
registration as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions, (ii) in the event that
there is a change in the Sub-Adviser, financial or otherwise, that adversely
affects its ability to perform services under this Agreement or (iii) upon
having a reasonable basis for believing that, as a result of the Sub-Adviser's
investing the Fund's assets, the Fund's investment portfolio has ceased to
adhere to the Fund's investment objectives, policies and restrictions as stated
in the Prospectus or SAI or is otherwise in violation of applicable law.
(b) Adviser agrees that it shall promptly notify the Sub-Adviser in
the event that the SEC has censured Adviser or the Fund; placed limitations upon
any of their activities, functions or operations; suspended or revoked Adviser's
registration as an investment adviser; or has commenced proceedings or an
investigation that may result in any of these actions.
(c) The Fund and Adviser shall be given access to the records of the
Sub-Adviser at reasonable times solely for the purpose of monitoring compliance
with the terms of this Agreement and the rules and regulations applicable to the
Sub-Adviser relating to its providing investment advisory services to the Fund,
including without limitation records relating to trading by employees of the
Sub-Adviser for their own accounts and on behalf of other clients. The
Sub-Adviser agrees to cooperate with the Fund and Adviser and their
representatives in connection with any such monitoring efforts.
7. BOOKS AND RECORDS
(a) In compliance with the requirements of Rule 31a-3 under the 1940
Act, the Sub-Adviser hereby agrees that all records which it maintains for the
Fund are the property of the Fund and further agrees to surrender promptly to
the Fund any of such records upon request. The Sub-Adviser further agrees to
preserve for the periods prescribed by Rule 31a-2 under the 1940 Act the records
required to be maintained by Rule 31a-1 under the 1940
Act and to preserve the records required by Rule 204-2 under the Advisers Act
for the period specified therein.
(b) The Sub-Adviser hereby agrees to furnish to regulatory authorities
having the requisite authority any information or reports in connection with
services that the Sub-Adviser renders pursuant to this Agreement which may be
requested in order to ascertain whether the operations of the Fund are being
conducted in a manner consistent with applicable laws and regulations.
8. PROVISION OF INFORMATION;
PROPRIETARY AND CONFIDENTIAL INFORMATION
(a) Adviser agrees that it will furnish to the Sub-Adviser information
related to or concerning the Fund that the Sub-Adviser may reasonably request.
(b) The Sub-Adviser agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Fund all records and
other information relative to the Fund, Adviser and prior, present or potential
shareholders and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder except after prior
notification to and approval in writing of the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Sub-Adviser may be
exposed to civil or criminal contempt proceedings for failure to comply or when
requested to divulge such information by duly constituted authorities.
(c) The Sub-Adviser represents and warrants that neither it nor any
affiliate will use the name of the Fund, Adviser or any of their affiliates in
any prospectus, sales literature or other material in any manner without the
prior written approval of the Fund or Adviser, as applicable.
9. STANDARD OF CARE
The Sub-Adviser shall exercise its best judgment in rendering the
services described herein. The Sub-Adviser shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund or Adviser in
connection with the matters to which this Agreement relates, except that the
Sub-Adviser shall be liable for a loss resulting from a breach of fiduciary duty
by the Sub-Adviser with respect to the receipt of compensation for services;
provided that nothing herein shall be deemed to protect or purport to protect
the Sub-Adviser against any liability to the Fund or Adviser or to shareholders
of the Fund to which the Sub-Adviser would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of the Sub-Adviser's reckless disregard
of its obligations and duties
under this Agreement. The Fund and Adviser understand and agree that the
Sub-Adviser may rely upon information furnished to it reasonably believed by the
Sub-Adviser to be accurate and reliable and, except as herein provided, the
Sub-Adviser shall not be accountable for loss suffered by the Fund by reason of
such reliance of the Sub-Adviser.
10. COMPENSATION
In consideration of the services rendered pursuant to this Agreement,
Adviser will pay the Sub-Adviser a quarterly fee equal to __% of the quarterly
amount received by Adviser for its services as the Fund's investment adviser
after any fee waivers and expense reimbursements. The fee for the period from
the date of this Agreement to the end of the quarter during which this Agreement
commenced shall be prorated according to the proportion that such period bears
to the full quarterly period. Such fee shall be paid by Adviser to the
Sub-Adviser within ten (10) business days after the last day of each quarter or,
upon termination of this Agreement before the end of a quarter, within ten (10)
business days after the effective date of such termination. Upon any termination
of this Agreement before the end of a quarter, the fee for such part of that
quarter shall be prorated according to the proportion that such period bears to
the full quarterly period. The Sub-Adviser shall have no right to obtain
compensation directly from the Fund for services provided hereunder and agrees
to look solely to Adviser for payment of fees due.
11. EXPENSES
(a) The Sub-Adviser will bear all expenses in connection with the
performance of its services under this Agreement, which shall not include the
Fund's expenses listed in paragraph 11(b).
(b) The Fund will bear certain other expenses to be incurred in its
operation, including: investment advisory and administration fees; taxes,
interest, brokerage fees and commissions, if any; fees of Directors of the Fund
who are not officers, directors, or employees of the Fund, Adviser or the
Sub-Adviser or affiliates of any of them; fees of any pricing service employed
to value shares of the Fund; SEC fees, state Blue Sky qualification fees and any
foreign qualification fees; charges of custodians and transfer and dividend
disbursing agents; the Fund's proportionate share of insurance premiums; outside
auditing and legal expenses; costs of maintenance of the Fund's existence; costs
attributable to investor services, including, without limitation, telephone and
personnel expenses; costs of preparing and printing prospectuses and statements
of additional information for regulatory purposes and for distribution to
existing shareholders; costs of shareholders' reports and meetings of the
shareholders of the Fund and of the
officers or Board of Directors of the Fund; and any extraordinary expenses.
12. TERM OF AGREEMENT
This Agreement shall commence on the date first written above and
shall continue for an initial two-year period commencing on the date first
written above, and thereafter shall continue automatically for successive annual
periods, provided such continuance is specifically approved at least annually by
(a) the Board of Directors of the Fund or (b) a vote of a "majority" (as defined
in the 0000 Xxx) of the Fund's outstanding voting securities, provided that in
either event the continuance is also approved by a majority of the Board of
Directors who are not "interested persons" (as defined 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. This Agreement is terminable, without
penalty, (i) by Adviser on 60 (sixty) days' written notice to the Fund and the
Sub-Adviser, (ii) by the Board of Directors of the Fund or by vote of holders of
a majority of the Fund's shares on 60 (sixty) days' written notice to Adviser
and the Sub-Adviser, or (iii) by the Sub-Adviser upon 60 (sixty) days' written
notice to the Fund and Adviser. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 0000 Xxx) by any party hereto.
In the event of termination of this Agreement for any reason, all records
relating to the Fund kept by the Sub-Adviser shall promptly be returned to
Adviser or the Fund, free from any claim or retention of rights in such records
by the Sub-Adviser. In the event this Agreement is terminated or is not approved
in the foregoing manner, the provisions contained in paragraph numbers 4(c), 7,
8 and 9 shall remain in effect.
13. AMENDMENTS
No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, and no amendment of this Agreement shall be effective until approved by
an affirmative vote of (a) the holders of a majority of the outstanding voting
securities of the Fund and (b) the Board of Directors of the Fund, including a
majority of Directors who are not "interested persons" (as defined in the 0000
Xxx) of the Fund or of either party to this Agreement, by vote cast in person at
a meeting called for the purpose of voting on such approval, if such approval is
required by applicable law.
14. NOTICES
All communications hereunder shall be given (a) if to the Sub-Adviser,
to __________________________________________, (b) if to Adviser, to
________________________________________, and (c) if to the Fund, c/o Warburg
Pincus Funds, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, telephone: (000) 000-0000, telecopy:
(000) 000-0000 (Attention: President).
15. CHOICE OF LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York in the United States, including choice of law
principles; provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or any applicable rules,
regulations or orders of the SEC.
16. MISCELLANEOUS
(a) The captions of this Agreement are included for convenience only
and in no way define or limit any of the provisions herein or otherwise affect
their construction or effect.
(b) If any provision of this Agreement shall be held or made invalid
by a court decision, by statute or otherwise, the remainder of this Agreement
shall not be affected thereby and, to this extent, the provisions of this
Agreement shall be deemed to be severable.
(c) Nothing herein shall be construed to make the Sub-Adviser an agent
of Adviser or the Fund.
(d) This Agreement may be executed in counterparts, with the same
effect as if the signatures were upon the same instrument.
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
CREDIT SUISSE ASSET MANAGEMENT, LLC
By: _________________________________
Name:
Title:
__________________________ FUND, INC.
By: _________________________________
Name:
Title:
CREDIT SUISSE ASSET MANAGEMENT LIMITED
By: _______________________________
Name:
Title:
