Exhibit 99.(d)(2)
SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 29th day of November 2007, by and between XXXXXX
XXXXXXX INVESTMENT ADVISORS INC., a Delaware corporation (hereinafter referred
to as the "Adviser"), and XXXXXX XXXXXXX INVESTMENT MANAGEMENT LIMITED, a
company incorporated under the laws of England (hereinafter referred to as the
"Local Manager").
WITNESSETH:
WHEREAS, Xxxxxx Xxxxxxx Series Funds (the "Trust") is a Massachusetts
business trust engaged in business as an open-end management investment company
with three separate portfolios (the "Portfolios") and is registered under the
Investment Company Act of 1940, as amended (hereinafter referred to as the
"Investment Company Act"); and
WHEREAS, the Adviser and the Local Manager are engaged principally in
rendering investment advisory services and are registered as investment advisers
under the Investment Advisors Act of 1940, as amended; and
WHEREAS, the Local Manager is regulated by the Financial Services Authority
in the United Kingdom; and
WHEREAS, the Adviser has entered into an investment advisory agreement (the
"Advisory Agreement") with the Trust dated November 1, 2004, as amended on
November 29,2007, pursuant to which the Adviser provides management and
investment and advisory services to the Portfolios; and
WHEREAS, Xxxxxx Xxxxxxx Commodities Alpha Fund (Cayman), Ltd. (the
"Subsidiary") has been established to act as a trading subsidiary of Xxxxxx
Xxxxxxx Commodities Alpha Fund, a Portfolio that wholly owns and controls the
Subsidiary and will be the sole shareholder of the Subsidiary (the "Fund"). The
Subsidiary's portfolio will be managed by the Adviser and Local Manager subject
to the same investment restrictions and operational guidelines that apply to the
management of the Fund under the Advisory Agreement; and
WHEREAS, the Local Manager is willing to provide investment advisory
services to the Adviser in connection with the operations of the Fund and the
Subsidiary on the terms and conditions hereinafter set forth and including the
terms and conditions contained in the Annex to this Agreement;
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Local Manager and the Adviser hereby agree as
follows:
ARTICLE I
Duties of the Local Manager
The Adviser hereby employs the Local Manager to act as discretionary
investment manager to the Adviser and to furnish the investment management
services described below, subject to the broad supervision of the Adviser, the
Board of Trustees of the Trust (the "Board of Trustees" or the "Trustees") and
the directors of the Subsidiary (the "Directors"), for the period and on the
terms and conditions set forth in this Agreement. The Local Manager hereby
accepts such employment and agrees during such period, at its own expense, to
render, or arrange for the rendering of, such services and to assume the
obligations herein set forth for the compensation provided for herein. The
Adviser and its affiliates shall
for all purposes herein be deemed an Intermediate Customer as defined under the
rules and guidance promulgated by the Financial Services Authority (hereinafter
referred to as the "FSA Rules"). The Local Manager and its affiliates shall for
all purposes herein each be deemed to be an independent contractor and shall,
unless otherwise expressly provided or authorized, have no authority to act for
or represent the Fund or the Subsidiary in any way or otherwise be deemed an
agent of the Fund or the Subsidiary.
The Local Manager shall have full discretion, power and authority on behalf
of the Fund and the Subsidiary to buy, sell, retain, exchange or otherwise deal
in investments and other assets, make deposits, subscribe to issues and offers
for sale and accept placings of any investments, enter into foreign currency
transactions on a spot or forward basis, effect transactions on any markets,
take all day to day decisions and otherwise act as the Local Manager judges
appropriate in relation to the investment and reinvestment of the portfolio of
assets of the Fund and the Subsidiary. This includes performing all acts and
executing all documents which the Local Manager reasonably considers incidental
thereto, including (without limitation) power to execute and deliver all
applications, requests, or claims for refund, reduction, repayment or credit of,
or exemption or relief from, any withholding tax or similar taxes in any
jurisdiction in which such applications, requests or claims may be made. Subject
to guidelines adopted by the Fund and the Subsidiary, the Local Manager shall
also make recommendations or take action as to the manner in which voting
rights, rights to consent to corporate action and any other rights pertaining to
the portfolio of assets of the Fund and Subsidiary shall be exercised. All of
the foregoing is subject always to the restrictions of the Declaration of Trust
and By-Laws of the Trust, as they may be amended and/or restated from time to
time and as provided to the Local Manager, the provisions of the Investment
Company Act and the statements relating to the Fund's and the Subsidiary's
investment objective(s), investment policies and investment restrictions as the
same are set forth in the then-currently effective prospectus and statement of
additional information relating to the shares of the Fund under the Securities
Act of 1933, as amended (the "Prospectus" and "Statement of Additional
Information", respectively), as well as to the supervision of the Adviser, the
Board of Trustees and the Directors.
The Local Manager will not hold money on behalf of the Adviser, the Fund or
the Subsidiary, nor will the Local Manager be the registered holder of the
registered investments of the Adviser, the Fund or the Subsidiary or be the
custodian of documents or other evidence of title.
The Local Manager may, where reasonable, employ agents (including
affiliates) to perform any administrative, dealing or ancillary services
required to enable the Local Manager to perform its services under this
Sub-Advisory Agreement.
ARTICLE II
Allocation of Charges and Expenses
The Local Manager assumes and shall pay for maintaining the staff and
personnel necessary to perform its obligations under this Agreement and shall at
its own expense provide the office space, equipment and facilities which it is
obligated to provide under Article I hereof.
ARTICLE III
Compensation of the Local Manager
For the services rendered, the facilities furnished and expenses assumed by
the Local Manager, the Adviser shall pay to the Local Manager a fee in an amount
to be determined from time to time by the Adviser and the Local Manager, but in
no event in excess of the amount that the Adviser actually received for
providing services to the Fund and the Subsidiary pursuant to the Advisory
Agreement.
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ARTICLE IV
Limitation of Liability of the Local Manager
No warranty is given by the Local Manager as to the performance or
profitability of the Fund, the Subsidiary or any part of them.
If a percentage restriction contained in the Fund's or the Subsidiary's
investment objective(s) or investment restrictions (as the same are set forth in
the Fund's then-currently effective Prospectus and Statement of Additional
Information) is adhered to at the time of investment, a later change in
percentage resulting from a change in values or assets will not constitute a
violation of such restriction.
The Local Manager will not be responsible to the Adviser, the Fund or the
Subsidiary for the solvency, actions or omissions of any counterparty, broker,
dealer, market-maker, bank, custodian or sub-custodian, with whom it transacts
business on the Adviser's behalf, other than affiliates of the Local Manager.
Nothing in this Agreement will exclude or restrict any liability which the
Local Manager has under the Financial Services and Markets Xxx 0000, FSA Rules
or Regulatory System (as defined by FSA Rules) in relation to the Adviser and
which may not be excluded or restricted thereunder.
The Local Manager shall not be liable for any error of judgment or mistake
of law or for any loss arising out of any investment or for any act or omission
in the performance of investment advisory services rendered with respect to the
Fund or the Subsidiary, except for willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of reckless disregard
of its obligations and duties hereunder. The exception in the previous sentence
shall apply to each limitation of the Local Manager's liability contained in
this Article IV. As used in this Article IV, the Local Manager shall include any
affiliates of the Local Manager performing services for the Local Manager
contemplated hereby and directors, officers and employees of the Local Manager
and such affiliates.
ARTICLE V
Activities of the Local Manager
The services of the Local Manager to the Adviser in connection with the
operations of the Fund and the Subsidiary are not to be deemed to be exclusive,
the Local Manager and any person controlled by or under common control with the
Local Manager (for purposes of this Article V referred to as "affiliates") being
free to render services to others. It is understood that the Trustees and any
directors, officers, employees and shareholders of the Fund and the Subsidiary
are or may become interested in the Local Manager and its affiliates, as
directors, officers, employees and shareholders or otherwise and that directors,
officers, employees and shareholders of the Local Manager and its affiliates are
or may become similarly interested in the Fund or the Subsidiary, and that the
Local Manager and directors, officers, employees, partners and shareholders of
its affiliates may become interested in the Fund as shareholders or otherwise.
ARTICLE VI
Duration and Termination of this Agreement
This Agreement shall become effective as of the date first above written
and shall remain in force until the date of termination of the Advisory
Agreement (but not later than two years after the date hereof)
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and thereafter, but only so long as such continuance is specifically approved at
least annually by (i) the Board of Trustees and the Directors or by the vote of
a majority of the outstanding voting securities of the Fund and (ii) a majority
of those Trustees who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for the purpose of voting on
such approval.
This Agreement may be terminated at any time, without the payment of any
penalty, by the Board of Trustees, the Adviser, or by vote of a majority of the
outstanding voting securities of the Fund, or by the Local Manager, on sixty
days' written notice to the other party. This Agreement shall automatically
terminate in the event of its assignment or in the event of the termination of
the Advisory Agreement. Any termination shall be without prejudice to the
completion of transactions already initiated.
ARTICLE VII
Amendments to this Agreement
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Board of Trustees and the Directors or by the
vote of a majority of outstanding voting securities of the Fund and (ii) a
majority of those Trustees who are not parties to this Agreement or interested
persons of any such party cast in person at a meeting called for the purpose of
voting on such approval.
ARTICLE VIII
Definitions of Certain Terms
The terms "vote of a majority of the outstanding voting securities",
"assignment", "affiliated person" and "interested person" used in this
Agreement, shall have the respective meanings specified in the Investment
Company Act and the rules and regulations thereunder, subject, however, to such
exemptions as may be granted by the Securities and Exchange Commission under
said Act.
ARTICLE IX
Governing Law
This Agreement shall be construed in accordance with the laws of the State
of New York and the applicable provisions of the Investment Company Act. To the
extent that the applicable laws of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXX XXXXXXX INVESTMENT ADVISORS INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX INVESTMENT MANAGEMENT LIMITED
By: /s/ J. David Germany
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Name: J. David Germany
Title: Managing Director
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SUB-ADVISORY AGREEMENT
ANNEX
1. DEALING AND COUNTERPARTIES
1.1 The Local Manager will act in good faith and with due diligence in its
choice and use of counterparties. Unless directed by the Adviser, the Fund
or the Subsidiary to use a specific counterparty, the Local Manager
undertakes to secure Best Execution (as defined in the FSA Rules) of all
the Fund's and the Subsidiary's transactions. In securing Best Execution,
the Local Manager will take reasonable care to obtain the best available
price in accordance with FSA Rules. Subject thereto, the Local Manager may
deal on such markets or exchanges and with such counterparties (including
any affiliate) as it thinks fit. All transactions will be effected in
accordance with the rules and regulations of the relevant market or
exchange, and the Local Manager may take all such steps as may be required
or permitted by such rules and regulations and/or by appropriate market
practice.
1.2 If any counterparty should fail to deliver any necessary documents or to
complete any transaction, the Local Manager will take all reasonable steps
on behalf of the Adviser, the Fund and/or the Subsidiary (as applicable) to
rectify such failure or obtain compensation. The Adviser shall procure that
the Fund and/or the Subsidiary (as applicable) pay all reasonable costs and
expenses properly incurred by the Local Manager.
1.3 The Local Manager will not enter into soft commission arrangements with
brokers.
1.4 The Local Manager may aggregate the Fund's orders with orders of other
clients (whether or not connected with the Local Manager). The Adviser is
aware and has made the Fund and the Subsidiary aware that the aggregation
of the Fund's and the Subsidiary's orders with those of other clients may
result in the Fund or the Subsidiary obtaining on some occasions a more
favourable price and on others a less favourable price, than if such orders
had not been aggregated.
2. MATERIAL INTERESTS
2.1 The Local Manager and any affiliate may, subject to the limitations of the
U.S. Investment Company Act of 1940, as amended, and to the overriding
principles of suitability and Best Execution and without prior reference to
the Adviser, the Fund or the Subsidiary, effect transactions in which the
Local Manager or affiliate has, directly or indirectly, a material interest
or a relationship of any description with another party, which may involve
a potential conflict with the Local Manager's duty to the Adviser, the Fund
or the Subsidiary. Neither the Local Manager nor any affiliate shall be
liable to account to the Adviser, the Fund or the Subsidiary for any
profit, commission or remuneration made or received from or by reason of
such transactions or any connected transactions nor will the Local
Manager's fees, unless otherwise provided, be abated. For example, such
potential conflicting interests or duties may arise because:
(a) any of the Local Manager's or affiliate's directors or employees is a
director of, holds or deals in securities of, or is otherwise
interested in any company whose securities are held or dealt in on
behalf of the Fund or the Subsidiary;
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(b) the transaction is in the securities of a company for which an
affiliate has provided corporate finance advice, underwritten, managed
or arranged an issue or offer for sale;
(c) the Local Manager deals on behalf of the Fund or the Subsidiary with
an affiliate;
(e) the Local Manager may effect transactions involving placings and/or
new issues with an Affiliate who may be acting as principal or
receiving agent's commission. Affiliates may retain any agent's
commission or discount or other benefit (including directors' fees)
that accrues to them; or
(f) the transaction is in units or shares of a collective investment
scheme (regulated or unregulated) of which the Local Manager or any
affiliate is the manager, operator, banker, adviser, custodian or
director.
2.2 Nothing in this Agreement shall oblige the Local Manager or any affiliate
to accept responsibilities more extensive than those set out in this
Agreement or shall give rise to any fiduciary or equitable duties which
would prevent or hinder any affiliate acting both as market-maker and
broker, principal or agent, dealing with other affiliates and other clients
and generally effecting transactions as provided above nor from retaining
any remuneration received in respect thereof.
3. RECORDS AND REPORTS
3.1 The Local Manager will keep accurate and detailed records with respect to
all receipts, investments, sales, disbursements and other transactions
carried out by the Local Manager for the Adviser or with the Fund or the
Subsidiary.
3.2 All records held pursuant to this clause by the Local Manager shall be open
to inspection by the Adviser, the Fund and/or the Subsidiary and the Local
Manager will provide the Adviser, the Fund and/or the Subsidiary with such
access as it itself has to records held by any relevant third party, in
each case at reasonable times during business hours and upon the giving of
reasonable notice by the Adviser, the Subsidiary and/or the Fund (as
applicable).
3.3 The Local Manager shall, not later than 10 working days following the end
of each calendar month, furnish to the Adviser a statement showing all
transactions that have occurred in the Fund and the Subsidiary and a
monthly listing of all investments and cash balances held as of the end of
such month.
3.4 The monthly statement will show the cost or amount realised (in the case of
any relevant new purchase or sale) and, where available, the current value
(where applicable) of each investment held in the Fund and the Subsidiary
and any income arising on the Fund's and the Subsidiary's account during
the relevant calendar month, and will also include a statement showing the
measure of the performance of the assets of the Fund and the Subsidiary.
The basis of all valuations will be as stated in the first monthly
statement, unless otherwise agreed.
3.5 The Local Manager will not provide the Adviser with an individual trade
confirmation of each portfolio transaction unless the Adviser has
specifically requested the Local Manager to do so.
4. FORCE MAJEURE
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The Local Manager shall not be responsible or liable to the Adviser, the
Fund or the Subsidiary for any failure or delay in the performance of its
obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including,
without limitation, acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities; computer (hardware or software) or
communications services; accidents; labor disputes; acts of civil or
military authority or governmental actions; it being understood that the
Local Manager shall use reasonable efforts which are consistent with
accepted practices in the investment management industry to resume
performance as soon as practicable under the circumstances.
5. COMPLAINTS
The Local Manager maintains procedures in accordance with FSA Rules for the
effective consideration and handling of client complaints. Complaints will
be considered promptly by the appropriate supervisory manager who is not
personally involved in the subject matter of the complaint. Where
appropriate, the complaint will be passed to the Compliance Officer.
6. CONFIDENTIALITY AND DISCLOSURE
The Local Manager and the Adviser undertake to keep private and
confidential all information acquired in connection with this Agreement,
and not to disclose such information to any person except to the extent
that:
(a) the other party gives prior consent; or
(b) the Local Manager is required to disclose the information by the FSA,
the Bank of England, the London Stock Exchange or any other recognised
investment exchange, the City Panel on Takeovers and Mergers or any
other regulatory authority having jurisdiction over the Local Manager
or the performance by it of its obligations under this Agreement or by
English Law; or
(c) disclosure to a counterparty to a transaction effected for the Fund or
the Subsidiary is required as a condition to such transaction; or
(d) disclosure is necessary to enable the Local Manager to perform its
obligations under this Agreement.
7. DATA PROTECTION
7.1 The Local Manager will, in connection with the Sub-Advisory Agreement,
comply (where applicable) with the UK Data Protection Xxx 0000 and other
applicable data protection laws and regulations (together, the "Data
Protection Laws").
7.2 The Adviser will comply (where applicable) with the Data Protection Laws
and (where applicable) take all reasonable steps to ensure that it has
obtained all necessary consents for the Local Manager to process any
personal data for the purposes of the Agreement.
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