SUBADVISORY AGREEMENT
Agreement made as of the 16th day of April, 2003, by and between
American Express Financial Corporation, a Delaware corporation ("AEFC"), and
Xxxxxxx Xxxxx Asset Management L.P., a limited partnership organized under the
laws of the State of Delaware ("Subadviser").
WHEREAS the Fund listed in Schedule A is a series of an investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
WHEREAS AEFC has entered into an Investment Management Services
Agreement dated January 9, 2003 (the "Advisory Agreement") with the Fund
pursuant to which AEFC provides investment advisory services to the Fund.
WHEREAS, the Subadviser acknowledges the Fund may have one or more
other subadvisers and that AEFC shall from time to time determine the portion of
the Fund's assets to be managed by the Subadviser. With respect to the Fund, the
Subadviser shall be responsible only for a portion of the Fund (the "GS
Portion") which is allocated to Subadviser from time to time by AEFC (which
portion may include any or all of the Fund's assets) and the Subadviser shall
have no responsibility for remaining portion(s) or segments(s) of the Fund.
WHEREAS AEFC and the Fund each desire to retain Subadviser to provide
investment advisory services to the Fund, and Subadviser is willing to render
such investment advisory services.
NOW, THEREFORE, the parties, intending to be legally bound, agree as follows:
1. Subadviser's Duties.
(a) Portfolio Management. Subject to supervision by AEFC and the Fund's
Board of Directors (the "Board"), Subadviser shall manage the
investment operations and the composition of the GS Portion, including
the purchase, retention, and disposition thereof, in accordance with
the Fund's investment objectives, policies, and restrictions, and
subject to the following understandings:
(i) Investment Decisions. Subadviser shall determine from time to
time what investments and securities will be purchased, retained,
or sold with respect to that portion of the Fund allocated to it
by AEFC, and what portion of such assets will be invested or held
uninvested as cash. Subadviser is prohibited from consulting with
any other subadviser of the Fund concerning transactions of the
Fund in securities or other assets.
(ii) Investment Limits. In the performance of its duties and
obligations under this Agreement, Subadviser shall act in
conformity with applicable limits and requirements, as amended
from time to time, as set forth in the (A)
Fund's Prospectus and Statement of Additional Information
("SAI"); (B) instructions and directions of AEFC and of the
Board; (C) requirements of the 1940 Act, the Internal Revenue
Code of 1986, as amended, as applicable to the Fund (except as
otherwise noted in the Agreement), and all other applicable
federal and state laws and regulations; and (D) the procedures
and standards set forth in, or established in accordance with,
the Advisory Agreement.
(iii) Portfolio Transactions.
(A) Trading. With respect to the securities and other
investments to be purchased or sold for the Fund, Subadviser
shall place orders with or through such persons, brokers,
dealers, or futures commission merchants ("FCMs")
(including, but not limited to, broker-dealers or FCMs that
are affiliated with AEFC or Subadviser, or other subadvisers
to the Fund) selected by Subadviser; provided, however, that
such orders shall be consistent with the brokerage policy
set forth in the Fund's Prospectus and SAI, or approved by
the Board; conform with federal securities laws and
applicable procedures adopted by the Fund's Board, provided
that with respect to any such procedures governing
transactions involving affiliates (such as those adopted
pursuant to the 1940 Act Rule 17a-7, 17e-1 and 10f-3), such
procedures will identify any affiliate of AEFC and the
Trust, other than affiliates of the Subadviser. The
Subadviser shall not bear any responsibility and shall be
released from any obligation or cost which results from
entering into a trade pursuant to the Fund's Rule 17a-7,
17e-1 or 10f-3 procedures with any affiliated entity, other
than affiliates of the Subadviser, not specifically
identified to the Subadviser by AEFC); and be consistent
with securing the best execution taking into account the
factors specified in the Subadviser's Form ADV. Within the
framework of this policy, Subadviser may consider the
brokerage and research services (as defined in Section 28(e)
of the Securities Exchange Act of 1934 (the "Exchange Act"),
provided by, and the financial responsibility of, brokers,
dealers, or futures commission merchants who may effect, or
be a party to, any such transaction or other transactions to
which Subadviser's other clients may be a party. Consistent
with any guidelines established by the Board, a written copy
of which shall be provided to Subadviser, and Section 28(e)
of the Exchange Act, the Subadviser is authorized to pay to
a broker or dealer who provides such brokerage and research
services a commission for executing a portfolio transaction
for the Fund which is in excess of the amount of commission
another broker or dealer 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
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or dealer - viewed in terms of that particular transaction
or in terms of the overall responsibilities of the
Subadviser to its discretionary clients, including the Fund.
AEFC agrees to provide Subadviser with updated lists of all
broker-dealers affiliated with AEFC and the Board's
principal underwriters.
(B) Aggregation of Trades. On occasions when Subadviser deems
the purchase or sale of a security or futures contract to be
in the best interest of the Fund as well as other clients of
Subadviser, Subadviser, to the extent permitted by
applicable laws and regulations, may, but shall be under no
obligation to, aggregate the securities or futures contracts
to be sold or purchased. In such event, allocation of the
securities or futures contracts so purchased or sold, as
well as the expenses incurred in the transaction, will be
made by Subadviser in the manner Subadviser considers to be
fair and equitable over time and consistent with its
fiduciary obligations to the Fund and to such other clients.
(C) Without limiting the foregoing, the Subadviser may engage in
agency transactions with any of its affiliated
broker-dealers, subject to best execution, in accordance
with Section 11(a) of the Exchange Act and Rule 11a2-2(T)
thereunder, Section 17(e) of the 1940 Act and Rule 17e-1
thereunder and other applicable laws and regulations. AEFC
hereby agrees and consents that the Subadviser and its
affiliates are authorized to execute agency cross
transactions (collectively "Cross transactions") for the
Fund provided such transactions comply with the Rule
206(3)-2 under the Investment Advisers Act of 1940
("Advisers Act"), Rule 17e-1 under the 1940 Act and any
other applicable laws or regulations. Cross transactions are
transactions which may be effected by the Subadviser or its
affiliates acting for both the Fund and the counterparty to
the transaction. Cross transactions enable the Subadviser to
purchase or sell a block of securities for an account at a
set price and possibly avoid an unfavorable price movement
that may be created through entrance into the market with
such purchase or sell order. However, AEFC should note that
the Subadviser has a potentially conflicting division of
loyalties and responsibilities regarding both parties to
Cross transactions and that the Subadviser, or any of its
affiliates, if acting as broker; may receive commissions
from both parties to such transactions. The Subadviser
understands that its authority as the Subadviser to execute
Cross transactions for the Fund is terminable at will
without penalty, effective upon receipt of the Subadviser of
written notice from the Fund, and that the failure to
terminate such authorization will result in its
continuation.
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In connection with any agency Cross transactions, the
Subadviser will provide the Fund with a confirming letter
describing the details of such trades, and other reports or
information that the Fund may reasonably request. Upon
request, the Subadviser will disclose to the Fund the
commissions received by the Subadviser or its affiliates for
executing the other side of the transaction.
(iv) Records and Reports. Subadviser shall maintain such books and
records required under the 1940 Act as shall be agreed upon from
time to time by the parties hereto, shall render to the Board
such periodic and special reports as the Board or AEFC may
reasonably request, and shall meet with any persons at the
request of AEFC or the Board for the purpose of reviewing
Subadviser's performance under this Agreement at reasonable times
and upon reasonable advance written notice.
(v) Transaction Reports. Subadviser shall provide the Fund's
custodian on each business day with information relating to all
transactions concerning the Fund's assets and shall provide AEFC
with such information upon AEFC's request.
(b) Maintenance of Records. Subadviser shall timely furnish to AEFC all
information relating to Subadviser's services hereunder which are
needed by AEFC to maintain the books and records of the Fund required
under the 1940 Act. Subadviser shall maintain for the Fund the records
required by paragraphs (b)(5), (b)(6), (b)(7), (b)(9), (b)(10) and (f)
of Rule 31a-1 under the 1940 Act and any additional records as agreed
upon by Subadviser and AEFC. Subadviser agrees that all records which
it maintains for the Fund are the property of the Fund and Subadviser
will surrender promptly to the Fund any of such records upon the
Fund's request; provided, however, that Subadviser may retain a copy
of such records. Subadviser further agrees to preserve for the periods
prescribed under the 1940 Act any such records as are required to be
maintained by it pursuant to paragraph 1(a) hereof.
(c) Fidelity Bond and Code of Ethics. Subadviser will provide the Fund
with reasonable evidence that, with respect to its activities on
behalf of the Fund, Subadviser is maintaining (i) adequate fidelity
bond insurance and (ii) an appropriate Code of Ethics and related
reporting procedures.
2. AEFC's Duties. AEFC shall continue to have responsibility for all other
services to be provided to the Fund pursuant to the Advisory Agreement and
shall oversee and review Subadviser's performance of its duties under this
Agreement. AEFC shall also retain direct portfolio management
responsibility with respect to any assets of the Fund which are not
allocated by it to the portfolio management of Subadviser as provided in
paragraph 1(a) hereof.
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3. Documents Provided to Subadviser. AEFC has delivered or will deliver to
Subadviser current copies and supplements thereto of each of the Prospectus
and SAI pertaining to the Fund, and will promptly deliver to it all future
amendments and supplements, if any.
4. Compensation of Subadviser. For the services provided and the expenses
assumed pursuant to this Agreement, AEFC will pay to Subadviser, effective
from the date of this Agreement, a fee which shall be accrued daily and
paid monthly, on or before the last business day of the next succeeding
calendar month, from the Fund's assets at the annual rates as a percentage
of the Fund's average daily net assets set forth in the attached Schedule
A, which Schedule can be modified from time to time to reflect changes in
annual rates, subject to appropriate approvals required by the 1940 Act, if
any. If this Agreement becomes effective or 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 such month to the date of termination, as
the case may be, shall be prorated according to the proportion that such
month bears to the full month in which such effectiveness or termination
occurs.
5. Liability of Subadviser. Subadviser agrees to perform faithfully the
services required to be rendered to the Fund under this Agreement, but
nothing herein contained shall make Subadviser or any of its officers,
partners, or employees liable for any loss sustained by the Fund or its
officers, directors, or shareholders, or any other person on account of the
services which Subadviser may render or fail to render under this
Agreement; provided, however, that nothing herein shall protect Subadviser
against liability to the Fund or to any of its shareholders, to which
Subadviser would otherwise be subject, by reason of its willful
misfeasance, bad faith, or gross negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and
duties under this Agreement.
6. Representations of Subadviser. Subadviser represents and warrants as
follows:
(a) Subadviser (i) is registered as an investment advisor under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or
the Advisers Act from performing the services contemplated by this
Agreement, (iii) has met and will seek to continue to meet for so long
as this Agreement remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory
or industry self-regulatory agency necessary to be met in order to
perform the services contemplated by this Agreement; (iv) has the
authority to enter into and perform the services contemplated by this
Agreement; and (v) will promptly notify AEFC of the occurrence of any
event that would disqualify Subadviser from serving as an investment
advisor of an investment company pursuant to Section 9(a) of the 1940
Act or otherwise.
(b) Subadviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and will provide AEFC
with a copy of the code of ethics, together with evidence of its
adoption. Within 45 days of the end of the last calendar quarter of
each year that this Agreement is in effect and upon the
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specific request of AEFC during that time, a duly authorized officer
of Subadviser shall certify to AEFC that Subadviser has complied with
the requirements of Rule 17j-1 during the previous year and that there
has been no material violation of Subadviser's code of ethics or, if
such a violation has occurred, that appropriate action was taken in
response to such violation. Upon the written request of AEFC,
Subadviser shall permit AEFC, its employees, or its agents to examine
the reports required to be made to Subadviser by Rule 17j-1(c)(1) and
all other records relevant to Subadviser's code of ethics.
(c) Subadviser has provided AEFC with a copy of its Form ADV, which as of
the date of this Agreement is its Form ADV as most recently filed with
the Securities and Exchange Commission ("SEC"). The Subadviser will,
promptly after filing with the SEC an amendment to its Form ADV that
materially impacts the Subadviser's policies, procedures or personnel
related to its duties hereunder, furnish a copy of amendments to AEFC.
(d) Subadviser will promptly notify AEFC of any changes in the controlling
shareholder(s) or in the key personnel who are either the portfolio
manager(s) responsible for the Fund or senior management of
Subadviser, or if there is otherwise an actual or expected change in
control or management of Subadviser.
(e) Subadviser agrees that neither it nor any of its affiliates will in
any way refer directly or indirectly to its relationship with the Fund
or AEFC, or any of their respective affiliates in offering, marketing,
or other promotional materials without the prior written consent of
AEFC.
7. Representations of AEFC. AEFC represents and warrants as follows:
(a) AEFC has been duly authorized by the Board of the Fund to delegate to
the Subadviser the provision of investment services to the GS Portion
as contemplated hereby.
(b) AEFC is currently in compliance and shall at all times continue to
comply with the requirements imposed upon AEFC by applicable law and
regulations.
(c) AEFC has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act.
(d) AEFC represents and warrants that the Fund is duly registered as an
open-end investment company under the 1940 Act and shall promptly
notify the Subadviser if the Fund is no longer so registered or
covered by an applicable exemption from registration.
(e) AEFC (i) is registered as an investment advisor under the Advisers Act
and will continue to be so registered for so long as this Agreement
remains in effect; (ii) is not prohibited by the 1940 Act or the
Advisers Act from performing the services contemplated by this
Agreement, (iii) has met and will seek to continue to meet for so long
as this Agreement remains in effect, any other applicable federal or
state requirements, or the applicable requirements of any regulatory
or industry
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self-regulatory agency necessary to be met in order to perform the
services contemplated by this Agreement; (iv) has the authority to
enter into and perform the services contemplated by this Agreement;
and (v) will promptly notify Subadviser of the occurrence of any event
that would disqualify AEFC from serving as an investment advisor of an
investment company pursuant to Section 9(a) of the 1940 Act or
otherwise.
(f) AEFC agrees that neither it nor any of its affiliates will in any way
refer directly or indirectly to its relationship with Subadviser, or
any of its affiliates in offering, marketing, or other promotional
materials without the prior written consent of Subadviser.
(g) AEFC and its agents are required either by law or as a matter of good
practice, to operate policies and procedures for the purpose of
guarding against money laundering activities. AEFC hereby agrees that
it will fully comply with all applicable anti-money laundering laws,
regulations and orders, as now or hereafter in force.
8. Use of Xxxxxxx Xxxxx Name. It is understood that the name "Xxxxxxx, Sachs &
Co." or "Xxxxxxx Xxxxx" or any derivative thereof, any tradename,
trademark, trade device, service xxxx, symbol or logo associated with those
name are the valuable property of the Subadviser and that AEFC has the
right to use such name (or derivative or logo), in offering materials or
promotional or sales-related materials of the Fund, only with the prior
written approval of the Subadviser and for so long as the Subadviser is
Subadviser of the Fund. Notwithstanding the foregoing, the Subadviser's
approval is not required when (i) previously approved materials are
re-issued with minor modifications, or (ii) AEFC and Subadviser identify
materials which they jointly determine do not require the Subadviser's
approval. Upon termination of this Agreement, the Fund and AEFC shall
forthwith cease to use such name (or derivative or logo).
9. Tax Compliance Tests. AEFC shall perform quarterly and annual tax
compliance tests to ensure that the Fund is in compliance with subchapter M
of the Internal Revenue Code ("IRC") of the IRC. If it is determined that
the Fund is not in compliance with the requirements noted above, the
Subadviser, in consultation with AEFC, will take prompt action to bring the
Fund back into compliance within the time permitted under the IRC, provided
that any such non-compliance was caused by Subadviser in respect of the
Fund.
10. Liability and Indemnification.
(a) Except as may otherwise be provided by the 1940 Act or any other
federal securities law, Subadviser, any of its affiliates and any of
the officers, directors, employees, consultants, or agents thereof
shall not be liable for any losses, claims, damages, liabilities, or
litigation (including legal and other expenses) incurred or suffered
by AEFC or the Fund as a result of any error of judgment or mistake of
law by Subadviser with respect to the Fund, except that nothing in
this Agreement shall operate or purport to operate in any way to
exculpate, waive, or limit the liability of Subadviser for, and
Subadviser shall indemnify and hold harmless the Fund, AEFC, all
affiliated persons thereof (within the meaning of Section 2(a)(3)
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of the 0000 Xxx) and all controlling persons (as described in Section
15 of the Securities Act of 1933, as amended ("1933 Act"))
(collectively, "AEFC Indemnitees") against any and all losses, claims,
damages, liabilities, or litigation (including reasonable legal and
other expenses) to which any of the AEFC Indemnitees may become
subject under the 1933 Act, the 1940 Act, the Advisers Act, or under
any other statute, at common law, or otherwise arising out of or based
on (i) any willful misconduct, bad faith, reckless disregard, or gross
negligence of Subadviser in the performance of any of its duties or
obligations hereunder; or (ii) any untrue statement of a material fact
contained in the Prospectus and SAI, proxy materials, reports,
advertisements, sales literature, or other materials pertaining to the
Fund provided by Subadviser or the omission to state therein a
material fact known to Subadviser (and not also to AEFC) which was
required to be stated therein or necessary to make the statements
therein not misleading, unless such statement or omission was made in
reliance upon written information furnished to AEFC or the Fund by the
Subadviser Indemnitees (as defined below) for use therein; or (iii)
any violation of federal or state securities statutes or regulations
by Subadviser. It is further understood and agreed that Subadviser may
rely upon information furnished to it by AEFC that it reasonably
believes to be accurate and reliable. The federal securities laws
impose liabilities in certain circumstances on persons who act in good
faith, and therefore nothing herein shall in any way constitute a
waiver of limitation of any rights which AEFC may have under any
securities laws.
(b) Except as may otherwise be provided by the 1940 Act or any other
federal securities law, AEFC and the Fund shall not be liable for any
losses, claims, damages, liabilities, or litigation (including legal
and other expenses) incurred or suffered by Subadviser as a result of
any error of judgment or mistake of law by AEFC with respect to the
Fund, except that nothing in this Agreement shall operate or purport
to operate in any way to exculpate, waive, or limit the liability of
AEFC for, and AEFC shall indemnify and hold harmless Subadviser, all
affiliated persons thereof (within the meaning of Section 2(a)(3) of
the 0000 Xxx) and all controlling persons (as described in Section 15
of the 1933 Act) (collectively, "Subadviser Indemnitees") against any
and all losses, claims, damages, liabilities, or litigation (including
reasonable legal and other expenses) to which any of the Subadviser
Indemnitees may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, or under any other statute, at common law, or otherwise
arising out of or based on (i) any willful misconduct, bad faith,
reckless disregard, or gross negligence of AEFC in the performance of
any of its duties or obligations hereunder; (ii) any action or
omission relating to the non-GS Portion of the Fund; (iii) any untrue
statement of a material fact contained in the Prospectus and SAI,
proxy materials, reports, advertisements, sales literature, or other
materials pertaining to the Fund or the omission to state therein a
material fact known to AEFC which was required to be stated therein or
necessary to make the statements therein not misleading, unless such
statement or omission was made in reliance upon written information
furnished to AEFC or the Fund by a
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Subadviser Indemnitee for use therein, or (iv) any violation of
federal or state statutes or regulations by AEFC or the Fund.
Without limiting the foregoing, the Subadviser shall have no liability
for any act or omission taken by AEFC, another subadvisor, or any
other third party, in respect of the non-GS Portion of the Fund.
(c) After receipt by AEFC or Subadviser, its affiliates, or any officer,
director, employee, or agent of any of the foregoing, entitled to
indemnification as stated in (a) or (b) above ("Indemnified Party") of
notice of the commencement of any action, if a claim in respect
thereof is to be made against any person obligated to provide
indemnification under this section ("Indemnifying Party"), such
Indemnified Party shall notify the Indemnifying Party in writing of
the commencement thereof as soon as practicable after the summons or
other first written notification giving information of the nature of
the claim that has been served upon the Indemnified Party; provided
that the failure to so notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability under this section, except
to the extent that the omission results in a failure of actual notice
to the Indemnifying Party and such Indemnifying Party is damaged
solely as a result of the failure to give such notice. The
Indemnifying Party, upon the request of the Indemnified Party, shall
retain counsel satisfactory to the Indemnified Party to represent the
Indemnified Party in the proceeding, and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (1) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention
of such counsel, or (2) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying Party
and the Indemnified Party and representation by both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its
written consent, which consent shall not be unreasonably withheld, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such
settlement or judgment.
11. Duration and Termination.
(a) Unless sooner terminated as provided herein, this Agreement shall
continue in effect for a period of more than two years from the date
written above only so long as such continuance is specifically
approved at least annually in conformity with the requirements of the
1940 Act. Thereafter, if not terminated, this Agreement shall continue
automatically for successive periods of 12 months each, provided that
such continuance is specifically approved at least annually (i) by a
vote of a majority of the Board members who are not parties to this
Agreement or
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interested persons (as defined in the 0000 Xxx) of any such party, and
(ii) by the Board or by a vote of the holders of a majority of the
outstanding voting securities (as defined in the 1940 Act) of the
Fund.
(b) Notwithstanding the foregoing, this Agreement may be terminated at any
time, without the payment of any penalty, by the Board or by vote of a
majority of the outstanding voting securities (as defined in the 0000
Xxx) of the Fund on 60 days' written notice to Subadviser. This
Agreement may also be terminated, without the payment of any penalty,
by AEFC (i) upon 60 days' written notice to Subadviser; (ii) upon
material breach by Subadviser of any representations and warranties
set forth in this Agreement, if such breach has not been cured within
20 days after written notice of such breach; or (iii) immediately if,
in the reasonable judgment of AEFC, Subadviser becomes unable to
discharge its duties and obligations under this Agreement, including
circumstances such as the insolvency of Subadviser or other
circumstances that could adversely affect the Fund. Subadviser may
terminate this Agreement at any time, without payment of any penalty,
on 60 days' written notice to AEFC. This Agreement shall terminate
automatically in the event of its assignment (as defined in the 0000
Xxx) or upon the termination of the Advisory Agreement.
12. Subadviser's Services Are Not Exclusive. Nothing in this Agreement shall
limit or restrict the right of any of Subadviser's partners, officers, or
employees who may also be a director, officer, or employee of the Fund to
engage in any other business or to devote his or her time and attention in
part to the management or other aspects of any business, whether of a
similar or a dissimilar nature, or limit or restrict Subadviser's right to
engage in any other business or to render services of any kind to any other
corporation, firm, individual, or association.
13. References to Subadviser. During the term of this Agreement, AEFC agrees to
furnish to Subadviser at its principal office all prospectuses, proxy
statements, reports to shareholders, sales literature, or other material
prepared for distribution to sales personnel, shareholders of the Fund or
the public, which refer to Subadviser or its clients in any way, prior to
use thereof and not to use such material if Subadviser reasonably objects
in writing five business days (or such other time as may be mutually agreed
upon) after receipt thereof. Sales literature may be furnished to
Subadviser hereunder by first-class or overnight mail, electronic or
facsimile transmission, or hand delivery.
14. Notices. Any notice under this Agreement must be given in writing as
provided below or to another address as either party may designate in
writing to the other.
Subadviser:
Xxxxxxx Xxxxx Asset Management, L.P.
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. XxXxxxxx
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with a copy to:
General Counsel
Xxxxxxx, Xxxxx & Co.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
AEFC:
Vice President - Product Development and Research
American Express Financial Corporation
435 AXP Financial Center
Xxxxxxxxxxx, XX 00000
Fax: 000-000-0000
with a copy to:
H. Xxxxx xxx Xxxxx
Vice President and Group Counsel
American Express Financial Advisors Inc.
50606 AXP Financial Center
Xxxxxxxxxxx, XX 00000 Fax:
000-000-0000
15. Amendments. This Agreement may be amended by mutual consent, subject to
approval by the Board and the Fund's shareholders to the extent
required by the 1940 Act.
16. Assignment. No assignment (as defined in the 0000 Xxx) shall be made by
AEFC without the prior written consent of the Fund and AEFC.
Notwithstanding the foregoing, no assignment shall be deemed to result
from any changes in the directors, officers, or employees of AEFC
except as may be provided to the contrary in the 1940 Act or the rules
and regulations thereunder.
17. Governing Law. This Agreement shall be governed by the laws of the
State of Minnesota, or any applicable provisions of the 1940 Act. To
the extent that the laws of the State of Minnesota, or any of the
provision of this Agreement, conflict with applicable provisions of the
1940 Act, the latter shall control.
18. Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties hereto, and supersedes all prior
agreements and understandings relating to the subject matter hereof.
19. Severability. Should any part of this Agreement be held invalid by a
court decision, statute, rule, or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors.
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20. Interpretation. Any questions of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the 1940 Act shall be resolved by
reference to such term or provision in the 1940 Act and to
interpretation thereof, if any, by the federal courts or, in the
absence of any controlling decision of any such court, by rules,
regulations, or orders of the SEC validly issued pursuant to the 1940
Act. Where the effect of a requirement of the 1940 Act reflected in
any provision of this Agreement is altered by a rule, regulation, or
order of the SEC, whether of special or general application, such
provision shall be deemed to incorporate the effect of such rule,
regulation, or order.
21. Headings. The headings in this Agreement are intended solely as a
convenience and are not intended to modify any other provision herein.
22. Authorization. Each of the parties represents and warrants that the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized
by all necessary corporate action by such party and when so executed
and delivered, this Agreement will be the valid and binding obligation
of such party in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
AMERICAN EXPRESS XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. XxXxxxxx
-------------------------- ------------------------------
Signature Signature
Name: Xxxxx X. Xxxxx Name: Xxxxx X. XxXxxxxx
---------------------- ----------------------
Printed Printed
Title: Senior Vice President and Title: Authorized
General Manager-Mutual Funds Signatory
---------------------- ----------------------
-12-
SUBADVISORY AGREEMENT
SCHEDULE A
Compensation pursuant to Paragraph 4 of Subadvisory Agreement shall be
calculated in accordance with the following schedule:
Average Daily Net Assets* Rate
First $50 million 50bp
Next $100 million 40bp
Thereafter 30bp
*When average daily net assets exceed $50 million, multiple rates will apply,
resulting in a blended rate, e.g. if average daily net assets are $100 million,
a rate of 50bp would apply to $50 million and a rate of 40bp would apply to $50
million.
The rates set forth above apply to average daily net assets that are subject to
the Subadviser's investment discretion in the following fund:
AXP Partners Growth Fund, a series of AXP Partners Series, Inc.
Date: April 16, 2003
