Exhibit 23(d)
INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT is made as of the 8th day of March, 2000.
BETWEEN
(1) THE VENUS SERIES TRUST, a Delaware business trust (the "Trust") on behalf
of the INDIA TECHNOLOGY FUND (the "Fund") having its registered office at
c/o The Corporation Trust, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
AND
(2) VENUS CAPITAL MANAGEMENT, INC., a Delaware corporation having its
registered office at 00 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx, XX 00000
(hereinafter called the "Adviser")
WHEREAS
(A) The Trust is an open-end management company registered as such under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(B) The Adviser is a registered investment adviser under the Investment
Adviser's Act of 1940, as amended (the "Investment Adviser's Act").
(C) The Adviser is the sole sponsor and organizer of and has been retained as
investment adviser to the Fund.
WHEREBY IT IS AGREED AND DECLARED as follows:
1. Interpretation
1.1. In this Agreement the following words and expressions shall, where
not inconsistent with the context, have the following meanings
respectively:
"Auditors" means KPMG New Delhi or New York or such other
firm of independent auditors as is appointed by
the Board of Trustees.
"Board of Trustees" means the Board of Trustees of the Trust as set
forth in the Prospectus.
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"Custodian" means Deutsche Bank, A.G.; acting in its capacity
as custodian of the Investments or any such other
corporation appointed to act as custodian of the
Investments by the Board of Trustees;
"Declaration" means that certain Declaration of Trust dated
November 8, 1999;
"Effective Date" means the date referred to in the first sentence
of the Preamble.
"Investment
Advisers Act" means the Investment Advisers Act of 1940, as
amended;
"Investment
Company Act" means the Investment Company Act of 1940, as
amended;
"Investments" means the assets and rights from time to time of
the Trust held or to be held in accordance with
the Declaration (including any uninvested cash and
any moneys or application moneys which may be or
become returnable to any applicant for Shares) and
further means, in the case of a purchase or
acquisition of Investments, such transferable
securities of any kind or other assets as may be
purchased or acquired and form part of the assets
and rights from time to time of the Trust held or
to be held in accordance with the Declaration;
"Laws" means the laws of Delaware (including delegated
legislation or regulations of any competent
authority) and any other applicable laws and
regulations for the time being in force;
"Net Asset Value" means the total value of all portfolio securities,
cash, other assets held by the Fund, and interest
and dividends accrued minus all liabilities,
including accrued expenses.
"Prospectus" means the detailed prospectus of the Trust
approved by the Trustee under which Shares are
offered for subscription or purchase from time to
time, the initial Prospectus being of even date
herewith;
"Term" means a period of twenty-five years beginning on
the Effective Date.
"Transfer Agent" means Mutual Shareholder Services, LLC.
"Shares" means the Shares in the Trust (and "Shareholder"
shall be construed accordingly);
"Trustees" means the Board of Trustees of the Trust including
any duly appointed committee thereof;
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"Unlimited Period" means the period set forth in Section 8.1;
"US" means the United States of America;
1.2. Any reference to the Trust, the Adviser, the Transfer Agent, or the
Custodian includes a reference to its or their duly authorized
agents or delegates.
1.3. References to Clauses are to Clauses of this Agreement.
1.4. The headings to the Clauses of this Agreement are for convenience
only and shall not affect the construction or interpretation
thereof.
2. Appointment and Duties of the Adviser
As of the Effective Date, the Trust HEREBY APPOINTS the Adviser to
act as investment adviser to the Fund for the period and on such
terms set forth in this Agreement and the Adviser hereby accepts
such appointment and agrees to assume the obligations set forth
herein.
Adviser, as sponsor of the Fund, has the overall responsibility for
its organization, administration, operation, and compliance with all
Laws as well as all policies established by the Board of Trustees.
The duties of the Adviser include but are not limited to the
following:
(a) advising the Trust concerning the investment and reinvestment
of the assets of the Fund and the Fund's general investment
policy;
(b) obtaining and evaluating pertinent information relating to
economic developments, the performance of security markets,
and investment opportunities generally on an international
basis;
(c) recommending industries and companies to be represented in the
Fund's portfolio;
(d) formulating programs concerning the purchase and sale of the
investments and securities included or to be included in the
Fund's portfolio;
(e) advising the Trust concerning all actions which it appears to
the Adviser should be taken to carry out the investment
policies of the Trust;
(f) preparation of material other than accounts for inclusion in
annual or other required ownership reports of the Fund
whenever and in whatever form the Trust may reasonably
require;
(g) carrying out reviews and controls of the investment portfolio
of the Fund whenever the Adviser shall deem necessary or the
Trust shall reasonably require including submitting periodical
reports to the Trust;
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(h) maintaining consolidated books and records with respect to the
Fund's overall portfolio of securities;
(i) overseeing pricing of the Fund's portfolio; and
(j) selection of the brokers or dealers that will execute the
purchases and sales of securities for the Fund.
2.2. The Adviser shall undertake, by meetings with representatives of the
Trust's Board of Trustees or by any other means, to keep the Trust
informed of relevant developments affecting the investments of the
Fund.
3 Duties of the Adviser
In carrying out its duties, the Adviser shall have regard to:
(a) the investment objectives specified by the Trust,
(b) the primary purpose of the Trust's investment policy from time
to time communicated in writing by the Trust to the Adviser,
(c) the entitlement of the holders of shares of the Trust to
require redemption of their shares,
(d) the terms of any exchange control consent and any other
present or future governmental consents,
(e) the terms of the Prospectus issued by the Trust,
(f) any other matter to which a prudent adviser to an investor of
a category similar to the Trust would reasonably pay regard in
the proper discharge of his duties, and
(g) any directions from the Board of Trustees of the Trust or any
restrictions for the time being contained in the Declaration
and Prospectus of the Trust with regard to investment or
borrowing.
4. Delegation
(a) The Adviser shall be at liberty in the performance of its
duties and in the exercise of the powers, privileges and
duties vested in the Adviser hereunder to act by responsible
officers or a responsible officer for the time being and to
employ and pay an agent 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
expert whether reporting to the Trust or not.
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5. Fees and Expenses of the Adviser
5.1. The Trust, on behalf of the Fund, will pay the Adviser a
performance-based management fee calculated monthly by comparing the
Fund's investment performance to the investment record of the IFC
India Index ("IFC India Index"). The difference between the Fund's
performance compared to the performance of the IFC India Index will
multiplied by a performance adjustment of 12.5% at an annual rate
("Performance Adjustment"). The Performance Adjustment will then be
added or subtracted from the basic fee of 2.5%, subject to the
Adviser's minimum fee of 0.00% and maximum fee of 5.00%. If the Fund
underperforms the IFC India Index by 20 percentage points over a
12-month period, the minimum management fee of 0.00% will apply.
Correspondingly, if the Fund overperforms the IFC India Index by 20
percentage points, the maximum total management fee of 5.00% will
apply. The following table illustrates the fee structure:
Twelve Month Performance of the Fund versus IFC India Index Management Fee
----------------------------------------------------------- --------------
The Fund underperforms IFC India Index by 20% or more. 0.00%
The Fund underperforms IFC India Index by 15%. 0.63%
The Fund underperforms IFC India Index by 10%. 1.25%
The Fund underperforms IFC India Index by 5%. 1.88%
The Fund and IFC India Index perform the same. 2.50%
The Fund overperforms IFC India Index by 5%. 3.13%
The Fund overperforms IFC India Index by 10%. 3.75%
The Fund overperforms IFC India Index by 15%. 4.38%
The Fund overperforms IFC India Index by 20% or more. 5.00%
5.2 The Adviser shall pay the expenses incurred by it in connection with
the performance of its services hereunder.
5.3. The Trust shall reimburse the Adviser for those reasonable
out-of-pocket expenses which the Adviser may have paid on behalf of
the Fund in the performance its duties hereunder.
6. Authority and Exclusivity of the Adviser
The services of the Adviser to the Trust hereunder are to be deemed
exclusive and the Adviser shall not be authorized to render similar
services to other entities.
Except in accordance with the Trust's instructions, the Adviser
shall not have any power to enter into any agreement, contract,
transaction, or arrangement on behalf or in the name of the Trust or
have the authority in any way to bind the Trust.
7. Responsibility
7.1. The Adviser shall not be liable to the Trust or any Shareholder for
any error of judgement or for any loss suffered by the Trust or any
such Shareholder in connection with the subject matter of this
Agreement unless such loss arises from recklessness,
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fraud, bad faith or willful default on the part of the Adviser in
the performance or non-performance by it of its duties and
obligations relating to this Agreement or failure by the Adviser to
exercise due care and diligence in relation to the performance or
non-performance by it of all other duties and obligations hereunder
(any such occurrence, an Adviser's Default").
7.2. The Trust hereby undertakes to hold harmless and indemnify the
Adviser against all actions, proceedings, claims, costs, demands and
expenses which may be brought against, suffered, or incurred by the
Adviser by reason of its performance or non-performance of its
duties under the terms of this Agreement (other than due to an
Adviser's Default) including carrying out or relying upon a duly
issued instruction, order, or resolution of the Trustees and
including all legal, professional, and other expenses incurred by
the Adviser in the performance of its obligations or duties.
8. Duration
This Agreement shall continue in effect for an initial period of two
years from the date of adoption and shall continue in effect
thereafter for so long as such continuance is specifically approved
at least annually by the affirmative vote of (i) a majority of the
Trustees of the Trust, who are not interested persons of the Trust,
cast in person at a meeting called for the purpose of voting on such
approval, and (ii) a majority of the Trustees of the Trust or the
holders of a majority of the outstanding voting securities of the
Fund; provided however, that this Agreement may be terminated by the
Trust, on behalf of the Fund at any time, without the payment of any
penalty, by a majority of the Trustees who are not interested
persons of the Trust or by vote of a majority of the outstanding
voting securities (as defined in the Investment Company Act) of the
Fund, or by the Adviser at any time, without the payment of any
penalty, on not more than 60 days' written notice to the other
party. This Agreement shall terminate automatically in the event of
its assignment provided that a transaction which does not, under the
Investment Company Act, result in a change of actual control or
management of the Adviser's business shall not be deemed to be an
assignment for the purposes of this Agreement. The term "assignment"
for this purpose shall have the meaning defined in Section 2(a)(4)
of the Investment Company Act.
9. Force Majeure
The Adviser shall not be responsible for the loss of or damage to
any property of the Trust in the possession of the Adviser or for
any failure to fulfill its duties hereunder if such loss, damage or
failure shall be caused by or directly or indirectly due to war
damage, enemy action, the act of any Government or other competent
authority, riot, civil commotion, rebellion, xxxxx, xxxxxxx,
accident, fire, lock-out, strike or other cause whether similar or
not and beyond the control of the Adviser provided that the Adviser
shall use all reasonable efforts to minimize the effects of the
same.
10.Confidentiality
Neither party hereto shall (except if mandated by law) at any time
before or after the termination of this Agreement disclose to any
person any confidential information
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relating to the other party or to the affairs of the other party
obtained during the Term and each party shall use reasonable best
efforts to prevent any such disclosure.
11. Miscellaneous Provisions
11.1 No failure on the part of any party to exercise, and no delay on its
part in exercising, any right or remedy under this Agreement will
operate as a waiver thereof nor will any single or partial exercise
of any right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The rights and
remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
11.2 Any provision of this Agreement may be amended only if the parties
so agree in writing and subject to the provisions of the
Declaration.
11.3. The illegality, invalidity or unenforceability of any provision of
this Agreement under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any
other provision.
11.4 The Trust may invest in India through a trust, subsidiary,
partnership or other entity set up for such a purpose and if it
shall so do, the Trust, as appropriate, shall procure the trust,
subsidiary, partnership or other entity to enter into an agreement
supplemental hereto with the Trust, and the Investment Adviser upon
the terms of this Agreement, subject to such amendments as are
considered necessary and approved by the parties hereto.
12. Notices
12.1. Any notice given hereunder shall be given by sending the same by
certified mail, return receipt requested, or by telegram, cable,
telex or facsimile confirmed in each case by a copy sent forthwith
by certified mail, return receipt requested, or by delivering the
same by hand; such notice shall be addressed, dispatched or
delivered (as the case may be) to the principal place of business
for the time being of the party to whom it is addressed.
12.2. Any notice sent by mail as provided in this Clause 12 shall be
deemed to have been given 72 hours after dispatch and any notice
sent by telegram, cable, telex or facsimile as provided in this
Clause 12 shall be deemed to have been given upon receipt or by
confirmed answer back if served by telex.
13. Governing Law
This Agreement shall be governed and construed in accordance with
the laws of the State of Delaware and the Adviser and the Investment
Adviser hereby irrevocably submit to the non-exclusive jurisdiction
of the courts of the State of Delaware in relation to any dispute
arising from this Agreement.
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14. Counterparts
This Agreement may be executed in one or more counterparts each of
which shall constitute an original, but all of which together shall
constitute one and the same instrument.
15. Contemplated Amendment
The parties hereto acknowledge that the terms and conditions of this
Agreement will be the subject of a review of the United States
Securities and Exchange Commission ("SEC"). Each of the parties
hereto shall promptly consider the comments of the SEC in the
context of the placing and the application for registration of the
Trust with the SEC and each shall use their best efforts to agree to
such amendments to this Agreement as may be necessary or desirable
in order to take account of the SEC's comments. Any amendments made
in accordance with the foregoing shall be made by re-executing this
Agreement which shall incorporate such amendments as the parties
hereto agree, which shall include the removal of this Clause 15, and
such subsequent agreement shall be expressed to be effective as of
the date hereof and shall replace in its entirety any and all rights
and obligations of any of the parties hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
VENUS SERIES TRUST
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Trustee
VENUS CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
President
