1
EXHIBIT 99.B 5(a)(x)
SUB-ADVISORY CONTRACT
Asset Allocation Fund
a portfolio of
OVERLAND EXPRESS FUNDS, INC.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
September 1, 1994
Xxxxx Fargo Nikko Investment Advisors
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
This will confirm the agreement by and among Xxxxx Fargo Bank, N.A.
(the "Adviser"), Overland Express Funds, Inc. (the "Company"), on behalf of the
Asset Allocation Fund (the "Fund"), and Xxxxx Fargo Nikko Investment Advisors
(the "Sub-Adviser") as follows:
1. The Company is a registered open-end management investment
company currently consisting of 16 investment portfolios, but which may from
time to time consist of a greater or lesser number of investment portfolios
(the "Funds"). The Company proposes to engage in the business of investing and
reinvesting the assets of the Fund in the manner and in accordance with the
investment objective and restrictions specified in the Company's currently
effective prospectus and statement of additional information relating to the
Fund and the Company (such prospectus and such statement of additional
information being collectively referred to as the "Prospectus") and included in
the Company's Registration Statement, as amended from time to time (the
"Registration Statement"), filed by the Company under the Investment Company
Act of 1940 (the "Act") and the Securities Act of 1933. Copies of the
documents referred to in the preceding sentence have been furnished to the
Sub-Adviser. Any amendments to those documents shall be furnished to the
Sub-Adviser promptly.
2. The Company has engaged the Adviser to manage the investing
and reinvesting of the assets of the Fund and to provide the advisory services
specified elsewhere in the Amended Advisory Contract between the Company and
the Adviser, dated as of the date hereof, subject to the overall supervision of
the Board of Directors of the Company. Pursuant to an administration agreement
between the Company, on behalf of the Fund, and Xxxxxxxx Inc. (the
"Administrator"), the Company has engaged the Administrator to provide the
administrative services specified therein.
3. (a) The Adviser hereby employs the Sub-Adviser to perform
for the Fund certain advisory services and the Sub-Adviser hereby accepts such
employment. The Adviser shall retain the authority to establish and modify,
from time to time, the investment strategies and approaches followed by the
Sub-Adviser, subject, in all respects, to the supervision and direction
2
of the Company's Board of Directors and subject to compliance with the
investment objectives, policies and restrictions set forth in the Prospectus.
(b) Subject to the overall supervision and control of the
Adviser and the Company, the Sub-Adviser shall be responsible for investing and
reinvesting the Fund's assets in a manner consistent with the investment
strategies and approaches referenced in subparagraph (a), above. In this
regard, the Sub-Adviser, in accordance with the investment objectives, policies
and restrictions set forth in the Prospectus, shall be responsible for
implementing and monitoring the performance of the investment model employed
with respect to the Fund and shall furnish to the Adviser periodic reports on
the investment activity and performance of the Fund. The Sub-Adviser shall
also furnish such additional reports and information as the Adviser and the
Company's Board of Directors and officers shall reasonably request.
(c) The Sub-Adviser shall, at its expense, employ or
associate with itself such persons as the Sub- Adviser believes appropriate to
assist it in performing its obligations under this contract.
4. The Adviser shall be responsible for the fees paid to the
Sub-Adviser for its services hereunder. The Sub-Adviser agrees that it shall
have no claim against the Company or the Fund respecting compensation under
this contract. In consideration of the services to be rendered by the
Sub-Adviser under this contract, the Adviser shall pay the Sub-Adviser a fee on
the first business day of each calendar month, at the annual rate of 0.20% of
the average daily value (as determined on each day that such value is
determined for the Fund at the time set forth in the Prospectus for determining
net asset value per share) of the Fund's net assets during the preceding month.
The Sub-Adviser will also receive an annual payment of $60,000. If the fee
payable to the Sub-Adviser pursuant to this Paragraph 4 begins to accrue on a
day after the first day of any month or if this contract terminates before the
end of any month, the fee for the period from the effective date to the end of
the month or from the beginning of that month to the termination date, shall be
prorated according to the proportion that such period bears to the full month
in which the effectiveness or termination occurs. For purposes of calculating
the monthly fee, the value of the Fund's net assets shall be computed in the
manner specified in the Prospectus and the Company's Articles of Incorporation
for the computation of the value of the Fund's net assets in connection with
the determination of the net asset value of Fund shares.
5. The Sub-Adviser shall give the Company the benefit of the
Sub-Adviser's best judgment and efforts in rendering services under this
contract. As consideration and as an inducement to the Sub-Adviser's
undertaking to render these services, the Company and the Adviser agree that
the Sub-Adviser shall not be liable under this contract for any mistake in
judgment or in any other event whatsoever except for lack of good faith,
provided that nothing in this contract shall be deemed to protect or purport to
protect the Sub-Adviser against any liability to the Adviser, the Company or
its shareholders to which the Sub-Adviser would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of the
Sub-Adviser's duties under this contract or by reason of reckless disregard of
its obligations and duties hereunder.
6. This contract shall become effective as of its execution date
and shall thereafter continue in effect, provided that this contract shall
continue in effect for a period of more than two years from the date hereof
only so long as the continuance is specifically approved at least annually (a)
by the vote of a majority of the Fund's outstanding voting securities (as
defined in the Act) or by the Company's Board of Directors and (b) by the vote,
cast in person at a meeting
2
3
called specifically for the purpose of continuing this Sub-Advisory Agreement,
of a majority of the Company's Directors who are not parties to this contract
or "interested persons" (as defined in the Act) of any such party. This
contract may be terminated, upon 60 days' written notice to the Sub-Advisor, by
the Company, without the payment of any penalty, by a vote of a majority of the
Fund's outstanding voting securities (as defined in the Act) or by a vote of a
majority of the Company's entire Board of Directors. The Sub-Adviser may
terminate this contract after the second anniversary of the effective date of
this contract, on 60 days' written notice to the Company. This contract shall
terminate automatically in the event of its assignment (as defined in the Act).
7. Except to the extent necessary to perform the Sub-Adviser's
obligations under this contract, nothing herein shall be deemed to limit or
restrict the right of the Sub-Adviser, or any affiliate of the Sub-Adviser, or
any employee of the Sub-Adviser, to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, firm, individual or association.
8. The Sub-Adviser and the Company each agree that the phrase
"Overland Express" which comprises a component of the Company's name, is a
property right of the parent of the Adviser. The Company and the Sub-Adviser
agree and consent that the use of such phrase is subject to the provisions set
forth in the Advisory Contract between the Adviser and the Company.
9. This contract shall be governed by and construed in
accordance with the laws of the State of California.
3
4
If the foregoing correctly sets forth the agreement between the
Company, the Adviser and the Sub-Adviser, please so indicate by signing and
returning to the Company the enclosed copy hereof.
Very truly yours,
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
------------------------
Title: Vice President
-----------------------
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxxx
------------------------
Title: Senior Vice President
-----------------------
ACCEPTED as of the date
set forth above:
OVERLAND EXPRESS FUNDS, INC.,
on behalf of
the Asset Allocation Fund
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
------------------------
Title: Chief Operating Officer
-----------------------
XXXXX XXXXX XXXXX INVESTMENT ADVISORS
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
------------------------
Title: Managing Director
-----------------------
By: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
-----------------------
Title: Managing Director
-----------------------
4
