EX 99.(d)(1)
AMENDED AND RESTATED SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 25th day of April, 2006, by and between
XXXXXX XXXXXXX INVESTMENT ADVISORS INC., a Delaware corporation (hereinafter
referred to as "Xxxxxx Xxxxxxx Investment Advisors"), and XXXXXX XXXXXXX
INVESTMENT MANAGEMENT LIMITED, a company incorporated under the laws of England
(hereinafter referred to the "Local Manager").
WITNESSETH:
WHEREAS, Xxxxxx Xxxxxxx European Equity Fund Inc. (the "Fund") is a
Maryland corporation engaged in business as an open-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, Xxxxxx Xxxxxxx Investment Advisors 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 regulated by the Financial Services
Authority in the United Kingdom; and
WHEREAS, Xxxxxx Xxxxxxx Investment Advisors has entered into an
investment advisory agreement (the "Advisory Agreement") with the Fund dated May
1, 2000, as amended from time to time, pursuant to which Xxxxxx Xxxxxxx
Investment Advisors provides management and investment and advisory services to
the Fund; and
WHEREAS, the Local Manager is willing to provide investment management
services to Xxxxxx Xxxxxxx Investment Advisors in connection with the Fund's
operations on the terms and conditions hereinafter set forth and including the
terms and conditions contained in Annex 1 to this Agreement;
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Local Manager and Xxxxxx Xxxxxxx Investment Advisors
hereby agree as follows:
ARTICLE I
DUTIES OF THE LOCAL MANAGER
Xxxxxx Xxxxxxx Investment Advisors hereby employs the Local Manager to
act as discretionary investment manager to Xxxxxx Xxxxxxx Investment Advisors
and to furnish the investment management services described below, subject to
the broad supervision of Xxxxxx Xxxxxxx Investment Advisors 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. Xxxxxx Xxxxxxx Investment Advisors and its affiliates shall for all
purposes herein be deemed an Intermediate Customer as defined under the rules
and guidance promulgated by the Financial Services Authority (hereinafter
referred to as the "FSA Rules"). 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 full discretion, power and authority on
the Fund's behalf to buy, sell, retain, exchange or otherwise deal in
investments and other assets, make deposits, subscribe to issues and offers for
sale and accept placings of any investments, enter into foreign currency
transactions on a spot or forward basis, effect transactions on any markets,
take all day to day decisions and otherwise act as the Local Manager judges
appropriate in relation to the investment and reinvestment of the portfolio of
assets of the Fund. This includes performing all acts and executing all
documents which the Local Manager reasonably considers incidental thereto,
including (without limitation) power to execute and deliver all applications,
requests, or claims for refund, reduction, repayment or credit of, or exemption
or relief from, any withholding tax or similar taxes in any jurisdiction in
which such applications, requests or claims may be made. Subject to guidelines
adopted by the Fund, 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 of assets of the Fund
shall be exercised. All of the foregoing is subject always to the restrictions
of the Declaration of Trust and By-Laws of the Fund, as they may be amended
and/or restated from time to time and as provided to the Local Manager by Xxxxxx
Xxxxxxx Investment Advisors, the provisions of the Investment Company Act and
the statements relating to the Fund's investment objective(s), investment
policies and 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), as well
as to the supervision of Xxxxxx Xxxxxxx Investment Advisors and the Board of
Trustees of the Fund.
The Local Manager will not hold money on behalf of Xxxxxx Xxxxxxx
Investment Advisors or the Fund, nor will the Local Manager be the registered
holder of the registered investment of Xxxxxx Xxxxxxx Investment Advisors or the
Fund or be the custodian of documents or other evidence of title.
The Local Manager may, where reasonable, employ agents (including
affiliates) to perform any administrative, dealing or ancillary services
required to enable the Local Manager to perform its services under this
Sub-Advisory Agreement.
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.
ARTICLE III
COMPENSATION OF THE LOCAL MANAGER
For the services rendered, the facilities furnished and expenses
assumed by the Local Manager, Xxxxxx Xxxxxxx Investment Advisors shall pay to
the Local Manager a fee in an amount to be determined from time to time by
Xxxxxx Xxxxxxx Investment Advisors and the Local Manager but in no event in
excess of the amount that Xxxxxx Xxxxxxx Investment Advisors actually received
for providing services to the Fund pursuant to the Advisory Agreement.
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ARTICLE IV
LIMITATION OF LIABILITY OF THE LOCAL MANAGER
No warranty is given by the Local Manager as to the performance or
profitability of the Fund or any part of them.
If a percentage restriction contained in the Fund's investment
objective(s) or investment restrictions (as the same are set forth in the Fund's
currently effective Prospectus and Statement of Additional Information) is
adhered to at the time of investment, a later change in percentage resulting
from a change in values or assets will not constitute a violation of such
restriction.
The Local Manager will not be responsible to Xxxxxx Xxxxxxx Investment
Advisors or the Fund for the solvency, actions or omissions of any counterparty,
broker, dealer, market-maker, bank, custodian or sub-custodian, with whom it
transacts business on Xxxxxx Xxxxxxx Investment Advisors' behalf, other than
affiliates of the Local Manager.
Nothing in this Agreement will exclude or restrict any liability which
the Local Manager has under the Financial Services and Markets Xxx 0000, FSA
Rules or the Regulatory System in relation to Xxxxxx Xxxxxxx Investment Advisors
and which may not be excluded or restricted thereunder.
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 investment management 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. The exception in the previous sentence
shall apply to each limitation of the Local Manager's liability contained in
this Article IV. As used in this Article IV, the Local Manager shall include any
affiliates of the Local Manager performing services for the Local Manager
contemplated hereby and directors, officers and employees of the Local Manager
and such affiliates.
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
Trustees, 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
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 Trustees of the Fund or by the vote of a majority of the outstanding
voting securities of the Fund and (ii) a
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majority of those Trustees 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 Xxxxxx Xxxxxxx Investment Advisors, by the Board of Trustees of
the Fund 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 VII
AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by the parties only if such amendment is
specifically approved by (i) the Trustees of the Fund or by the vote of a
majority of outstanding voting securities of the Fund and (ii) a majority of
those Trustees 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.
ARTICLE VIII
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 IX
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.
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XXXXXX XXXXXXX INVESTMENT ADVISORS INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX INVESTMENT MANAGEMENT
LIMITED
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
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SUB-ADVISORY AGREEMENT
ANNEX 1
1. DEALING AND COUNTERPARTIES
1.1 The Local Manager will act in good faith and with due diligence in its
choice and use of counterparties. Unless directed by Xxxxxx Xxxxxxx
Investment Advisors or the Fund to use a specific counterparty, the Local
Manager undertakes to secure Best Execution (as defined in the FSA Rules)
of all the Fund's transactions. In securing Best Execution, the Local
Manager will take reasonable care to obtain the best available price in
accordance with FSA Rules. Subject thereto, the Local Manager may deal on
such markets or exchanges and with such counterparties (including any
affiliate) as it thinks fit. All transactions will be effected in
accordance with the rules and regulations of the relevant market or
exchange, and the Local Manager may take all such steps as may be required
or permitted by such rules and regulations and/or by appropriate market
practice.
1.2 If any counterparty should fail to deliver any necessary documents or to
complete any transaction, the Local Manager will take all reasonable steps
on behalf of Xxxxxx Xxxxxxx Investment Advisors or the Fund to rectify such
failure or obtain compensation. Xxxxxx Xxxxxxx Investment Advisors shall
procure that the Fund pay all reasonable costs and expenses properly
incurred by the Local Manager.
1.3 The Local Manager may aggregate the Fund's orders with orders of other
clients (whether or not connected with the Local Manager). Xxxxxx Xxxxxxx
Investment Advisors is aware and has made the Fund aware that the
aggregation of the Fund's orders with those of other clients may result in
the Fund obtaining on some occasions a more favourable price and on others
a less favourable price, than if such orders had not been aggregated.
2. MATERIAL INTERESTS
2.1 The Local Manager and any affiliate may, subject to the limitations of the
U.S. Investment Company Act of 1940 (as amended), and to the overriding
principles of suitability and Best Execution and without prior reference to
Xxxxxx Xxxxxxx Investment Advisors or the Fund, effect transactions in
which the Local Manager or affiliate has, directly or indirectly, a
material interest or a relationship of any description with another party,
which may involve a potential conflict with the Local Manager's duty to
Xxxxxx Xxxxxxx Investment Advisors or the Fund. Neither the Local Manager
nor any affiliate shall be liable to account to Xxxxxx Xxxxxxx Investment
Advisors or the Fund for any profit, commission or remuneration made or
received from or by reason of such transactions or any connected
transactions nor will the Local Manager's fees, unless otherwise provided,
be abated. For example, such potential conflicting interests or duties may
arise because:
(a) any of the Local Manager's or affiliate's directors or employees is a
director of, holds or deals in securities of, or is otherwise
interested in any company whose securities are held or dealt in on
behalf of the Fund;
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(b) the transaction is in the securities of a company for which an
affiliate has provided corporate finance advice, underwritten, managed
or arranged an issue or offer for sale;
(c) the Local Manager deals on behalf of the Fund with an affiliate;
(e) the Local Manager may effect transactions involving placings and/or
new issues with an Affiliate who may be acting as principal or
receiving agent's commission. Affiliates may retain any agent's
commission or discount or other benefit (including directors' fees)
that accrues to them; or
(f) the transaction is in units or shares of a collective investment
scheme (regulated or unregulated) of which the Local Manager or any
affiliate is the manager, operator, banker, adviser, custodian or
trustee.
2.2 Nothing in this Agreement shall oblige the Local Manager or any affiliate
to accept responsibilities more extensive than those set out in this
Agreement or shall give rise to any fiduciary or equitable duties which
would prevent or hinder any affiliate acting both as market-maker and
broker, principal or agent, dealing with other affiliates and other clients
and generally effecting transactions as provided above nor from retaining
any remuneration received in respect thereof.
3. RECORDS AND REPORTS
3.1 The Local Manager will keep accurate and detailed records with respect to
all receipts, investments, sales, disbursements and other transactions
carried out by the Local Manager for Xxxxxx Xxxxxxx Investment Advisors or
with the Fund.
3.2 All records held pursuant to this clause by the Local Manager shall be open
to inspection by Xxxxxx Xxxxxxx Investment Advisors or the Fund and the
Local Manager will provide Xxxxxx Xxxxxxx Investment Advisors and the Fund
with such access as it itself has to records held by any relevant third
party, in each case at reasonable times during business hours and upon the
giving of reasonable notice by Xxxxxx Xxxxxxx Investment Advisors or the
Fund.
3.3 The Local Manager shall, not later than 10 working days following the end
of each calendar month, furnish to Xxxxxx Xxxxxxx Investment Advisors a
statement showing all transactions that have occurred in the Fund and a
monthly listing of all investments and cash balances held as of the end of
such month.
3.4 The monthly statement will show the cost or amount realised (in the case of
any relevant new purchase or sale) and, where available, the current value
(where applicable) of each investment held in the Fund and any income
arising on the Fund's account during the relevant calendar month, and will
also include a statement showing the measure of the performance of the
assets of the Fund. The basis of all valuations will be as stated in the
first monthly statement, unless otherwise agreed.
3.5 The Local Manager will not provide Xxxxxx Xxxxxxx Investment Advisors with
an individual trade confirmation of each portfolio transaction unless
Xxxxxx Xxxxxxx Investment Advisors has specifically requested the Local
Manager to do so.
4. FORCE MAJEURE
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The Local Manager shall not be responsible or liable to Xxxxxx Xxxxxxx
Investment Advisors or the Fund for any failure or delay in the performance
of its obligations under this Agreement arising out of or caused, directly
or indirectly, by circumstances beyond its reasonable control, including,
without limitation, acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots; interruptions, loss or
malfunctions of utilities; computer (hardware or software) or
communications services; accidents; labor disputes; acts of civil or
military authority or governmental actions; it being understood that the
Local Manager shall use reasonable efforts which are consistent with
accepted practices in the investment management industry to resume
performance as soon as practicable under the circumstances.
5. COMPLAINTS
The Local Manager maintains procedures in accordance with FSA Rules for the
effective consideration and handling of client complaints. Complaints will
be considered promptly by the appropriate supervisory manager who is not
personally involved in the subject matter of the complaint. Where
appropriate, the complaint will be passed to the Compliance Officer.
6. CONFIDENTIALITY AND DISCLOSURE
The Local Manager and Xxxxxx Xxxxxxx Investment Advisors undertake to keep
private and confidential all information acquired in connection with this
Agreement, and not to disclose such information to any person except to the
extent that:
(a) the other party gives prior consent; or
(b) the Local Manager is required to disclose the information by the FSA,
the Bank of England, the London Stock Exchange or any other recognised
investment exchange, the City Panel on Takeovers and Mergers or any
other regulatory authority having jurisdiction over the Local Manager
or the performance by it of its obligations under this Agreement or by
English Law; or
(c) disclosure to a counterparty to a transaction effected for the Fund is
required as a condition to such transaction; or
(d) disclosure is necessary to enable the Local Manager to perform its
obligations under this Agreement.
7. DATA PROTECTION
7.1 The Local Manager will, in connection with the Sub-Advisory Agreement,
comply (where applicable) with the UK Data Protection Xxx 0000 and other
applicable data protection laws and regulations (together, the "Data
Protection Laws").
7.2 Xxxxxx Xxxxxxx Investment Advisors will comply (where applicable) with the
Data Protection Laws and (where applicable) take all reasonable steps to
ensure that it has obtained all necessary consents for the Local Manager to
process any personal data for the purposes of the Agreement.
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