EXHIBIT (d)(3)
SUB-ADVISORY AGREEMENT
BETWEEN
MACKENZIE FINANCIAL CORPORATION
AND
XXXXXXX & XXXX INVESTMENT MANAGEMENT COMPANY
MADE AS OF OCTOBER 18, 2002
SUB-ADVISORY AGREEMENT
AGREEMENT made the 18th day of October, 2002.
BETWEEN:
MACKENZIE FINANCIAL CORPORATION, a company amalgamated under the laws of
Ontario, Canada, with its principal place of business at 000 Xxxxx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 (hereinafter
called the "Manager").
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XXXXXXX & XXXX INVESTMENT MANAGEMENT COMPANY, a company incorporated
under the laws of Kansas, with its principal place of business at 0000
Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000 (hereinafter called the
"Sub-Advisor").
RECITALS:
1. The Manager is the trustee and/or manager and the portfolio advisor to
Mackenzie Universal Select Managers Fund, Mackenzie Universal Select
Managers Capital Class, Mackenzie Universal Select Managers USA Capital
Class (the "Funds"), each of which are either mutual fund trusts or
separate classes or series of shares of a mutual fund corporation organized
under the laws of the Province of Ontario.
2. The Master Declaration of Trust, the Master Management Agreement or the
Articles governing the Funds empowers the Manager to engage investment
advisors to manage the investment portfolios of the Funds and to perform
other investment advisory or administrative services to the Funds.
3. The Manager wishes to engage the Sub-Advisor to act on an interim basis as
investment sub-advisor to all or a portion of the assets of the Funds (the
"Sub-Advised Portfolios") beginning on November 4, 2002. The Manager has
requested the Sub-Advisor to provide the Funds with investment advice and
other administrative services with respect to the Sub-Advised
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Portfolios to assist the Manager to achieve the investment objectives of
the Funds.
AGREEMENT:
IN CONSIDERATION of the mutual covenants contained in this Agreement and
for other good and valuable consideration, each of the parties agrees as
follows:
1. APPOINTMENT OF SUB-ADVISOR.
(a) The Manager hereby appoints the Sub-Advisor to provide investment
sub-advisory services to the Manager for the Sub-Advised Portfolios
from November 4, 2002 up until the earlier of the date of closing of
the purchase by the Sub-Advisor of the outstanding common shares of
Ivy Acquisition Corporation and February 28, 2003 (the "Termination
Date").
(b) The terms of Appendix B to this Agreement shall be incorporated into
and forms part of this Agreement with the exception of Section 3(a),
(b) ("Fees for Sub-Advisory Services"), Section 15 ("Marketing Support
and Related Matters"), Part 5 ("Term and Termination"), Schedule "A"
and Schedule "B", which shall not apply.
2. FEES FOR SUB-ADVISORY SERVICES.
(a) The Manager will pay the Sub-Advisor fees for its investment advisory
services for each Sub-Advised Portfolio advised by the Sub-Advisor on
behalf of the Manager as set out in Appendix A to this Agreement.
(b) Each Fund's net assets will be calculated daily on each day that the
Toronto Stock Exchange is open for trading. The daily equivalent of
the annualized fees based on the rates as described in Appendix A will
then be calculated and paid to the Sub-Advisor monthly within ten (10)
days of each month end.
3. MARKETING SUPPORT FROM SUB-ADVISOR.
(a) The Sub-Advisor agrees to provide marketing support to market the
securities of the Funds to Canadian investors, including the following
services:
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- the attendance of the Funds' portfolio managers at any cross country
roadshows or other events as may be reasonably requested by the
Manager between October 15, 2002 and the Termination Date;
- conference calls between the Advisor's representatives and
representatives of the Manager; and
- monthly investment commentary.
(b) The Sub-Advisor will bear all of its reasonable costs relating to
travel to and from Canada for the trips identified in Section 3(a) and
from any marketing initiatives described in Section 3, but the Manager
will bear all reasonable costs (but not in excess of standard
commercial transportation costs) actually incurred by the Sub-Advisor's
representatives beyond the requirements of Section 3(a) while they are
participating in Canada in the promotion of the Funds with the Manager.
4. REVIEW OF MARKETING MATERIALS. The Manager agrees to make reasonable
efforts to ensue that the Sub-Advisor reviews and approves any marketing
materials which include any reference to the Sub-Advisor or its portfolio
managers.
5. TERM OF AGREEMENT.
(a) This Agreement is effective as of November 4, 2002 and will continue
until the Termination Date. This Agreement can be renewed upon the
written agreement of both parties.
(b) Notwithstanding Section 5(a), this Agreement may be terminated by the
Manager taking immediate effect upon delivery of written notice to the
Sub-Advisor.
(c) This Agreement may be terminated by written notice taking immediate
effect if either party is in breach of any of the terms of the
Agreement and has not remedied the breach within 30 days of receipt of
written notice requiring the breach to be remedied.
6. AMENDMENT OF AGREEMENT. No provision of this Agreement may be changed,
waived, discharged or discontinued except by a document signed by both the
Manager and the Sub-Advisor.
7. NOTICE. Any notice to be given under this Agreement shall be in writing and
shall be delivered, sent by prepaid mail, or sent by
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telecommunications facility to the address set out on the first page of
this Agreement. Any such notice shall be effective when received if sent by
delivery or telecommunications facility, and three days after mailing if
sent by prepaid mail. Either party may change its address for notice by
giving notice in accordance with this Section. All notices under this
Agreement shall be sent to the attention of the President of the recipient
of the notice with a copy to the General Counsel.
8. SEVERABILITY. If any provision or provisions of this Agreement are held to
be invalid, illegal or unenforceable by any arbitrator or by any court of
competent jurisdiction, such provision shall be severable from this
Agreement, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
9. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable in that
province, and the Sub-Advisor irrevocably submits to the jurisdiction of
the Ontario courts in connection with any dispute arising out of this
Agreement.
10. ENUREMENT. This Agreement shall enure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
11. COUNTERPARTS. This Agreement may be executed in any number of counterparts
all of which taken together shall constitute this Agreement.
12. NATURE OF AGREEMENT. This Agreement is not intended to be and shall not be
treated as anything other than an investment advisory agreement relating to
the provision of investment advisory services, with the rights of the
parties being none other than the rights ascribed to them under this
Agreement. Without limitation, this Agreement shall not be deemed in any
way or for any purpose to constitute any party a partner or agent of the
other party to this Agreement in the conduct of any business or otherwise
or a member of a joint venture or joint enterprise with the other party to
this Agreement.
13. ENTIRE AGREEMENT; TERMINATION OF AGREEMENTS.
(a) This Agreement, together with the Schedules hereto, constitutes the
entire agreement between the parties hereto pertaining to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether
oral or written, of the parties and there are no
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warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set
forth in this Agreement and in the Schedules hereto.
(b) Without limiting the foregoing, all prior agreements between the
Manager and the Sub-Advisor for investment advisory services provided
by the Sub-Advisor are hereby terminated in their entireties as of the
effectiveness of this Agreement and each party represents to the other
that it has no claims against the other under or arising out of any
such prior agreement between the parties other than claims for fees
and expenses pursuant to the terms of such agreements to the date of
termination.
14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVERS ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, ANY OF THE AGREEMENTS CONTEMPLATED HEREBY OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS
AGREEMENT. EACH PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRAIL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
15. SURVIVAL. The provisions included in Sections 13, 14, 16 and 17 of Appendix
B which are incorporated into and form part of this Agreement shall survive
the termination of this Agreement.
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IN WITNESS WHEREOF each of the parties has duly executed this Agreement.
XXXXXXX & XXXX INVESTMENT
MANAGEMENT COMPANY
BY: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: CEO and President
BY: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice-President
MACKENZIE FINANCIAL CORPORATION
BY: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Executive Vice-President
BY: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
President
