Exhibit 23(d-9)
FORM OF SUB ADVISORY AGREEMENT
Pacific Capital New Asia Growth Fund
THIS AGREEMENT is made as of June 29, 2006 among Pacific Capital Funds
of 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx, 00000 XXX (the "Trust"), The Asset
Management Group of Bank of Hawaii of I I I X. Xxxx Street, Honolulu, Hawaii
96813 (the "Adviser"), and First State Investments International Limited, whose
registered office is at 00 Xx Xxxxxx Xxxxxx, Xxxxxxxxx XX00 0XX (the
"Sub-Adviser").
WHEREAS, the Trust is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Adviser has been appointed investment adviser to the
Trust's New Asia Growth Fund (the "Fund");
WHEREAS, the Adviser desires to retain the Sub-Adviser to assist it in
the provision of a continuous investment program for the Fund and the
Sub-Adviser is vviIling to do so; and
WHEREAS, the Sub-Adviser, which is registered in the United States as
an investment advisor under the 1940 Investment Act and is authorized and
regulated in the United Kingdom by the Financial Services Authority, is willing
to furnish such services upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Adviser hereby appoints the Sub-Adviser with effect
from the date of this Agreement to act as the sub-adviser to the Fund as
permitted by the Adviser's Advisory Agreement with the Trust pertaining to the
Fund. Intending to be legally bound, the Sub-Adviser accepts such appointment
and agrees to render the services herein set forth for the compensation herein
provided. The initial composition and value of the Fund will be as agreed
between the Trust and the Sub-Adviser. For the purposes of the rules of the
Financial Services Authority ("FSA"), the Trust is classified by the Sub-Adviser
as an intermediate customer.
The Trust and the Adviser represent and warrant to the Sub-Advisor
that each of them has full capacity and authority to appoint the Sub-Advisor on
the terms of this Agreement; that the Fund is free from all liens, charges and
encumbrances and that all transactions entered into within the scope of this
Agreement will be binding on the Trust in accordance with its or their
respective terms and that neither the entry into this Agreement nor into any
such transaction will breach any law, rule or regulation applicable to the
Trust.
2. Sub-Advisory Services. Subject to the supervision of the Trust's Board
of Trustees and the Adviser, the Sub-Adviser will assist the Adviser in
providing a continuous investment program with respect to the Fund's portfolio,
including investment research and management with respect to all securities and
investments and cash equivalents in the Fund. The
Sub--Adviser will provide services under this Agreement in accordance with the
Fund's investment objectives, policies and restrictions as stated in the
Fund's prospectus and such resolutions of the Trust's Board of Trustees
applicable to the Fund all as are notified to the Sub-Adviser from time to
time.
Without limiting the generality of the foregoing, the Sub-Adviser
further agrees that it will, with respect to the Fund and all in accordance with
the investment objectives and restrictions applicable to the Fund as are
notified to the Sub-Adviser from time to time:
(a) determine from time to time what securities and other investments
will be purchased, retained or sold for the Fund;
(b) place orders pursuant to its investment determinations for the
Fund either directly with-the issuer or with any broker or
dealer;
(c) not purchase shares of the Fund for itself or for accounts with
respect to which it exercises sole investment discretion in
connection with such transactions except as permitted by the
Trust's Board of Trustees or by federal, state and local law;
(d) manage the Fund's overall cash position;
(e) attend business and investment-related meetings with the Trust's
Board of Trustees and the Adviser if requested to do so by the
Trust and/or the Adviser in such locations and at such times as
are agreed between the parties;
(f) ensure all Fund security valuations are reasonable for purposes
of determining whether such securities should be purchased, owned
or sold by the Fund;
(g) ensure that, if required, securities are identified for proper
segregation and collateralization;
(h) vote proxies on behalf of the Fund and on request provide proxy
voting information to the Fund and its agents in relation to the
Fund's annual filing on Form N-PX and as otherwise reasonably
requested by officers of the Fund; and
(i) maintain books and records with respect to the securities
transactions for the Fund, furnish to the Adviser and the Trust's
Board of Trustees such periodic and special reports as they may
request with respect to the Fund, and provide in advance to the
Adviser all reports to the Board of Trustees for examination and
review within a reasonable time prior to such of the Trust's
Board meetings as are notified to the Sub-Adviser in sufficient
time for it to be able to provide such reports.
3. Covenants by the Sub-Adviser. The Sub-Addviser agrees with respect to
the services provided to the Fund that it will:
(a) conform with all Rules and Regulations of the Securities and
Exchange Commission;
(b) telecopy or provide by electronic means trade information to the
Adviser on the first business day following the day of the trade
(c) treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and
prior, present or potential shareholders of the Trust, and not
use such records and information for any purpose other than
performance of its responsibilities and duties hereunder (except
after prior notification to and approval in writing by the Trust,
which approval shall not be unreasonably withheld and may not be
withheld and will be deemed granted where the Sub-Adviser may be
exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust);
(d) notify the Adviser and the Trust immediately upon detection of
(i) any material failure to manage the Fund in accordance with
its investment objectives and policies or any applicable law; or
(ii) any material breach of any of the Fund's or the
Sub-Adviser's policies, guidelines or procedures. The Sub-Adviser
agrees to correct any such failure promptly and to take any
action that the Board may reasonably request in connection with
any such breach;
(e) upon request, provide the Adviser and/or the officers of the
Trust with supporting certifications which pertain to services
being provided by the Sub-Adviser hereunder, in connection with
any filings and certifications made pursuant to the Sarbanes
Oxley Act of 2002; and
(f) promptly notify the Adviser and the Trust in the event (i) the
Sub-Adviser is served or otherwise receives notice of any action,
suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court, public board, or body, involving the
affairs of the Trust (excluding class action suits in which the
Fund is a member of the plaintiff class by reason of the Fund's
ownership of shares in the defendant) or the compliance by the
Sub-Adviser with the federal or state securities laws or(ii) an
actual change in control of the Sub-Adviser resulting in an
"assignment" (as defined in the 1940 Act) has occurred or is
otherwise proposed to occur.
4. Services Not Exclusive. Except as provided herein, the services
furnished by the Sub-Adviser hereunder are deemed not to be exclusive, and
nothing in this Agreement shall (i) prevent the Sub-Adviser from acting as
investment adviser or manager for any other person or persons, including other
management investment companies, or (ii) limit or restrict the Sub-Adviser from
buying, selling or trading any securities or other investments (including any
securities or other investments which the Funds are eligible to buy) for its or
their own accounts or for the accounts of others for whom it or they may be
acting.
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5. Portfolio Transactions. Investment decisions for the Fund shall be made
by the Sub-Adviser independently from those for any other investment companies
and accounts advised or managed by the Sub-Adviser. The Fund and such investment
companies and accounts may, however, invest in the same securities. When a
purchase or sale of the same security is made at substantially the same time on
behalf of the Fund and/or another investment company or account, the transaction
will be averaged as to price, and available investments allocated as to amount,
in a manner which the Sub-Adviser believes to be equitable to the Fund and such
other investment company or account. The Fund acknowledges that in some
instances, this investment procedure may adversely affect the price paid or
received by the Fund or the size of the position obtained or sold by the Fund.
To the extent permitted by law, the Sub-Adviser may aggregate the securities to
be sold or purchased for the Fund with those to be sold or purchased for other
investment companies or accounts in order to obtain best execution: The Fund and
Adviser understand that the Sub-Adviser may give advice and take action with
respect to any of its other clients or for its- own account which may differ
from the timing or nature of action taken by the Sub-Adviser, with respect to
the Fund.
The Sub-Adviser shall place orders for the purchase and sale of
portfolio securities and shall solicit broker-dealers to execute transactions in
accordance with the Fund's policies and restrictions regarding brokerage
allocations. The Sub-Adviser shall place orders pursuant to its investment
determination for the Fund either directly with the issuer or with any broker or
dealer selected by the Sub-Adviser. In executing portfolio transactions and
selecting brokers or dealers, the Sub Adviser shall use its reasonable best
efforts to seek the most favorable execution of orders, after taking into
account all factors the Sub-Adviser deems relevant, including the breadth of the
market in the security, the price of the security, the financial condition and
execution capability of the broker or dealer, and the reasonableness of the
commission, if any, both for the specific transaction and on a continuing basis.
Consistent with this obligation, the Sub-Adviser may, to the extent
permitted by law, purchase and sell portfolio securities to and from brokers and
dealers who provide brokerage and research services (within the meaning of
Section 28(e) of the Securities Exchange Act of 1934) to or for the benefit
of the Fund and/or other accounts over which the Sub-Adviser or any of its
affiliates exercises investment discretion. 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 the Sub-Adviser determines in good faith that such
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Sub-Adviser's overall responsibilities to the
Fund. In no instance will portfolio securities be purchased from or sold to the
Sub-Adviser, or the Fund's principal underwriter, or any affiliated person
thereof except as permitted by the 1940 Act or the rules of the Securities and
Exchange Commission thereunder.
6. Books and Records. In compliance with the requirements of Rule 31a 3
under the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Sub-Adviser further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records required to be maintained by Rule 31 a I
under the 1940 Act.
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7. Ex eases. During the term of this Agreement, the Sub-Adviser shall pay
all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities; commodities and other investments
(including brokerage commissions and other transaction charges, if any)
purchased for the Fund.
8. Compensation. For the services provided and the expenses assumed with
respect to the Fund pursuant to this Agreement, the Sub-Adviser shall be
entitled to a fee, computed daily and payable quarterly directly from the Fund,
calculated at the annual rate of 0.5 per cent of the Fund's daily net assets.
9. Standard of Care; Limitation of Liability. The Sub-Adviser shall
exercise due care and diligence and use the same skill and care in providing its
services hereunder as it uses in providing services to other investment
companies =I accounts, but shall not be liable for any action taken or omitted
by it in the performance of services rendered hereunder in the absence of its
bad faith, willful misconduct, gross negligence or reckless disregard of its
duties. No warranty or representation of any kind is given by the Sub-Adviser as
to the performance or profitability of the Fund's portfolio or any part of it.
Neither the Sub-Adviser, nor any of its directors, officers, agents or employees
shall be liable or responsible to the Trust, its shareholders or the Adviser for
any error of judgment, or any loss arising out of any investment, or for any
other act or omission in the performance by the Sub-Adviser of its duties under
this Agreement, except for liability resulting from bad faith, willful
misconduct, gross negligence or reckless disregard of its duties under this
Agreement.
10. Reference to the Sub-Adviser. Neither the Adviser nor any of its
affiliates or agents shall make reference to or use the name of the Sub-Adviser
or any of its affiliates, or any of their clients, except references concerning
the identity of and services provided by the Sub Adviser to the Fund, which
references shall not differ in substance from those included in the current
registration statement pertaining to the Fund, this Agreement and the Advisory
Agreement between the Adviser and the Trust with respect to the Fund, in any
advertising or promotional materials without the prior approval of the
Sub-Adviser, which approval shall not be unreasonably withheld or delayed.
11. Duration and Termination. Unless sooner terminated, this Agreement
shall continue for a period of two years from the date first set forth above,
and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually by the
Trust's Board of Trustees or vote of the lesser of (a) 67% of the shares of the
Fund represented at a meeting if holders of more than 50% of the outstanding
shares of the Fund are present in person or by proxy, or (b) more than 50% of
the outstanding shares of the Fund, provided that in either event its
continuance also is approved by a majority of the Trust's Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of any party to this Agreement
(the "Disinterested Trustees"), by vote cast in person at a meeting called for
the purpose of voting on such approval. This Agreement is terminable at any time
without penalty, with respect to the Fund, on 60 days' notice, by the Adviser,
the Sub-Adviser or the Trust's Board of Trustees or by vote of the lesser of (a)
67% of the shares of the Fund represented at a meeting if holders of more than
50% of the outstanding shares of the Fund are present in person or by proxy, or
(b) more than 50% of the outstanding shares of the Fund. This Agreement will
terminate automatically in the event of its assignment (as defined in the 1940
Act). In relation to all communications of any nature by the Trust to the
Sub-Adviser, the Sub-Adviser shall be
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entitled to assume, in the absence of explicit instructions to the contrary,
that any decisions communicated to it as being by the Trust's Board of Trustees
are by such members of that board as are Disinterested Trustees.
Termination will be without prejudice to the completion of transactions
already initiated which will be completed expeditiously by the Sub-Adviser.
Termination of this Agreement shall not prejudice or affect the rights and
liabilities of the Parties which have accrued prior to the date of termination.
Upon termination the Trust shall pay to the Sub-Adviser its accrued amount of
fees and charges pro rata to the date of termination; pay to the Sub-Adviser any
additional expenses necessarily incurred in terminating this Agreement; and bear
any losses necessaily realised in settling or concluding outstanding
obligations.
12. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Agreement shall be
effective until approved by the vote of (i) a majority of the outstanding voting
securities of the Fund, if required by the 1940 Act or the rules of the
Securities and Exchange Commission thereunder, and (ii) a majority of the
Disinterested Trustees cast in person at a meeting called for the purpose of
voting on such approval.
13. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be delivered or mailed by registered post:
To The Sub-Adviser at:
First State Investments International limited
00 Xx Xxxxxx Xxxxxx
Xxxxxxxxx
XX XXX
Scotland
Attention: company secretarial department
With a copy to:
Xxxx Xxxxxxx
First State Investments International Limited
00 Xx Xxxxxx Xxxxxx
Xxxxxxxxx
XX0 I BB
Scotland
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To the Adviser at:
The Asset Management Group of Rank of Hawaii
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
To the Trust at:
c/o BISYS Fund Services
0000 Xxxxxxx Xxxx Xxxxxxxx,
Xxxx 00000-0000
14. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement shall be finding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by the laws of the
Commonwealth of Massachusetts (without regard to conflict of law principles). If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. In the event of any conflict between the law governing this
contract and the rules of the FSA, the law governing this contract shall
prevail.
Any complaint relating to the Sub-Adviser should, in the first instance, be
made in writing to the Head of Institutional Business of the Sub-Adviser (with a
copy to the Company Secretary of the Sub-Adviser) at the address notified by the
Sub-Adviser to the Fund pursuant to Clause 14. Where required by FSA Rules, a
copy of the Sub-Adviser's complaints handling procedure will be available on
request.
A statement is available from the Sub-Adviser describing the Fund's rights
to compensation (if any) in the event that the Sub-Adviser is unable to meet its
liabilities.
Subject to the prior written consent of the Trust and the Adviser, the
Sub-Adviser may delegate or outsource any of the functions which are the subect
of this Agreement to any affiliated person of the Sub-Adviser (each a "Delegated
Firm") and may provide information about the Adviser and the Fund to any
Delegated Firm in order that such delegation or outsourcing may be carried out
but the Sub-Adviser's liability to the Adviser or the Fund for all matters so
delegated or outsourced shall not be affected thereby. References in this
Agreement to the Sub-Adviser shall apply also to any Delegated Firm.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Personal Liability. The names "Pacific Capital Funds" and "Trustees" refer
respectively to the Trust created and to the Trustees, as trustees but not
individually or personally, acting from time to time under an Agreement and
Declaration of Trust dated as of October 30, 1992, as amended, to which
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reference is hereby made and a copy of which is on file at the office of the
Secretary of State of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "Pacific Capital Funds" entered into in the name or on
behalf hereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, shareholders or representatives of the Trust personally, but bind only
the assets of the Trust and all persons dealing with any series of shares of the
Trust must look solely to the assets of the Trust belonging to such series for
the enforcement of any claims against the Trust.
[Signature Page Follows]
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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.
THE ASSET MANAGEMENT GROUP OF
BANK OF HAWAII
/s/ Jordan T. Ige
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Jordan T. Ige
Senior Vice President
FIRST STATE INVESTMENTS
INTERNATIONAL LIMITED
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Director
PACIFIC CAPITAL FUNDS
/s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Xxxxxxx X. Xxxxx, Xx.
President
