Exhibit 2(g)(3)
SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 11th day of August, 2003, by and between XXXXXX
XXXXXXX INVESTMENT MANAGEMENT INC., a Delaware corporation (hereinafter referred
to as "MSIM", and XXXXXX XXXXXXX INVESTMENT MANAGEMENT COMPANY, a corporation
organized under the laws of Singapore (hereinafter referred to the "Local
Manager").
W I T N E S S T E T H:
WHEREAS, Xxxxxx Xxxxxxx Asia-Pacific Fund, Inc. (the "Fund") is Maryland
corporation engaged in business as a closed-end management investment company
and is registered under the Investment Company Act of 1940, as amended
(hereinafter referred to as the "Investment Company Act"); and
WHEREAS, MSIM 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 the holder of a capital markets services
licence for fund management under the Securities and Futures Act (Cap. 289) of
Singapore/ or is exempt from licensing under the Securities and Futures Act
(Cap. 289) of Singapore and is the holder of a financial adviser's licence under
the Financial Advisers Act (Cap. 110) of Singapore or is exempt from licensing
under the Financial Advisers Act (Cap. 110) of Singapore; and
WHEREAS, MSIM has entered into an investment advisory agreement (the
"Advisory Agreement") with the Fund dated March 13, 1997, pursuant to which MSIM
provides management and investment and advisory services to the Fund; and
WHEREAS, the Local Manager is willing to provide investment advisory
services to MSIM in connection with the Fund's operations on the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Local Manager and MSIM hereby agree as follows:
ARTICLE I
Duties of the Local Manager
MSIM hereby employs the Local Manager to act as investment adviser to MSIM
and to furnish the investment advisory services described below, subject to the
broad supervision of MSIM and the Fund, 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 Local Manager and its
affiliates shall for all purposes herein 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 in any way or otherwise be deemed an
agent of the Fund.
The Local Manager shall have the right to make unsolicited calls on MSIM
and shall provide MSIM with such investment research, advice and supervision as
the latter may from time to time consider necessary for the proper supervision
of the assets of the Fund; shall furnish continuously an investment
program for the Fund and shall make recommendations from time to time as to
which securities shall be purchased, sold or exchange and what portion of the
assets of the Fund shall be held in the various securities in which the Fund
invests, options, futures, options on futures or cash; all of the foregoing
subject always to the restrictions of the Articles of Incorporation and By-Laws
of the Fund, as they may be amended and/or restated from time to time, the
provisions of the Investment Company Act and the statements relating to the
Fund's investment objective(s), investment restrictions as the same are set
forth in the 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). The Local Manager shall make recommendations and effect
transactions with respect to foreign currency matters, including foreign
exchange contracts, foreign currency options, foreign currency futures and
related options on foreign currency futures and forward foreign currency
transactions. 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 securities of the Fund shall be
exercised.
The Local Manager will not hold money on behalf of MSIM or the Fund, nor
will the Local Manager be the registered holder of the registered investment of
MSIM or the Fund or be the custodian of documents or other evidence of title.
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 and shall pay all compensation of
officers of the Fund and all Directors of the Fund who are affiliated persons of
the Local Manager.
ARTICLE III
Compensation of the Local Manager
For the services rendered, the facilities furnished and expenses assumed by
the Local Manager, MSIM shall pay to the Local Manager a fee in an amount to be
determined from time to time by MSIM and the Local Manager but in no event in
excess of the amount that MSIM actually received for providing services to the
Fund pursuant to the Advisory Agreement.
ARTICLE IV
Limitation of Liability of the Local Manager
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 sub-advisory services rendered with respect to the Fund,
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. As used in this Article IV, the Local Manager shall include any
affiliates of MSIM performing services for MSIM contemplated hereby and
directors, officers and employees of the Local Manager and such affiliates.
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ARTICLE V
Activities of the Local Manager
The services of the Local Manager to the Fund 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
Directors, officers, employees and shareholders of the Fund 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, 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
Compliance with Applicable Laws and Regulations
The Local Manager shall obtain and at all times maintain and comply with
the terms of all relevant authorisations, licences, consents, approvals and
registrations and comply with all relevant laws and regulations, necessary for
the purpose of performing any of its duties and obligations under this
Agreement. The Local Manager shall inform MSIM as soon as possible if at any
time the Local Manager becomes unable to comply with the terms of or maintain
any such authorisations, licences, consents, approvals or registrations.
ARTICLE VII
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) and thereafter,
but only so long as such continuance is specifically approved at least annually
by (i) the Directors of the Fund or by the vote of a majority of the outstanding
voting securities of the Fund and (ii) a majority of those Directors 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 MSIM 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 VIII
Amendments to this Agreement
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Directors of the Fund or by the vote of a
majority of outstanding voting securities of the Fund and (ii) a majority of
those Directors 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.
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ARTICLE IX
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 X
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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT INC.
By: _______________________________
Name:
Title:
XXXXXX XXXXXXX INVESTMENT
MANAGEMENT COMPANY
By: _______________________________
Name:
Title:
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