Exhibit (d)(vi)
XXXXXXXX CAPITAL FUNDS (DELAWARE)
INVESTMENT SUBADVISORY AGREEMENT
SCHRODER EMERGING MARKETS FUND
This AGREEMENT dated as of the ____ day of _________, 2003, is entered into
among Xxxxxxxx Capital Funds (Delaware) (the "Trust"), a business trust
organized under the laws of the State of Delaware with its principal place of
business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Xxxxxxxx
Investment Management North America Inc. (the "Adviser"), a corporation
organized under the laws of the State of Delaware with its principal place of
business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx 00000, and Xxxxxxxx
Investment Management North America Limited (the "Subadviser"), a U.K.
corporation with its principal office and place of business at 00 Xxxxxxx
Xxxxxx, Xxxxxx, X.X. XX0X 0XX.
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as
amended (the "Act"), as an open-end management investment company;
WHEREAS, the Subadviser is registered with the Securities and Exchange
Commission (the "Commission") as an investment adviser under the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and is regulated by the
United Kingdom's Financial Services Authority ("FSA") in the conduct of any
investment business the Subadviser performs in the United Kingdom;
WHEREAS, the Trust and the Adviser desire that the Subadviser perform investment
advisory services for the Schroder Emerging Markets Fund series of the Trust
(the "Fund") and the Subadviser is willing to provide those services on the
terms and conditions set forth in this Agreement; and
WHEREAS, the Subadviser is willing to render such investment advisory services
on behalf of the Fund;
NOW THEREFORE, in consideration for the promises and covenants contained herein,
the Trust, the Adviser and the Subadviser hereby agree as follows:
SECTION 1. INVESTMENT SUBADVISER; APPOINTMENT
Subject to the oversight of the Board of Trustees of the Trust (the "Board"),
the Adviser manages the investment and reinvestment of the assets of the Fund
and otherwise provides management and certain other services as specified in the
Amended Investment Advisory Agreement, dated as of September 15, 1999, between
the Adviser and the Trust on behalf of the Fund (the "Investment Advisory
Agreement").
The Adviser hereby employs the Subadviser, subject to the direction and control
of the Adviser and the oversight of the Board, to manage the investment and
reinvestment of the assets in the Fund and, without limiting the generality of
the foregoing, to provide other investment management services required of the
Adviser under and in accordance with the Investment Advisory Agreement. The
Subadviser hereby accepts such employment and agrees to provide such services
for the consideration herein provided, all subject to and in accordance with the
terms and conditions of this Agreement.
SECTION 2. DUTIES OF THE SUBADVISER
(a) Subject to the direction and control of the Adviser and the
oversight of the Board, the Subadviser shall make decisions with
respect to all purchases and sales of securities and other investment
assets in the Fund. To carry out such decisions, the Subadviser is
hereby authorized, as agent and attorney-in-fact for the Trust, for the
account of, at the risk of and in the name of the Trust, to place
orders and issue instructions with respect to those transactions of the
Fund. In all purchases, sales and other transactions in securities for
the Fund, the Subadviser is authorized to exercise full discretion and
act for the Trust in the same manner and with the same force and effect
as the Trust might or could do with respect to such purchases, sales or
other transactions, as well as with respect to all other things
necessary or incidental to the furtherance or conduct of such
purchases, sales or other transactions.
(b) Upon request, the Subadviser will report to the Board (either
directly or through the Adviser) all changes in the Fund since the
prior report, and will keep the Board informed (either directly or
through the Adviser) of important developments affecting the Trust, the
Fund and the Subadviser, and on its own initiative, will furnish the
Board (either directly or through the Adviser) from time to time with
such information as the Subadviser may believe appropriate for this
purpose, whether concerning the individual companies whose securities
are included in the Fund's holdings, the industries in which they
engage, or the economic, social or political conditions prevailing in
each country in which the Fund maintains investments. The Subadviser
will also furnish the Board (either directly or through the Adviser)
with such statistical and analytical information with respect to
securities in the Fund as the Subadviser may believe appropriate or as
the Adviser or the Board reasonably may request. In making purchases
and sales of securities for the Fund the Subadviser will comply with
the policies set from time to time by the Board as well as the
limitations imposed by the Trust's Trust Instrument and Registration
Statement under the Act and the Securities Act of 1933, as amended, the
limitations in the Act and in the Internal Revenue Code of 1986, as
amended, in respect of regulated investment companies, and the
investment objectives, policies and restrictions of the Fund.
(c) The Subadviser shall maintain records for the Fund relating to
portfolio transactions and the placing and allocation of brokerage
orders as are required to be maintained by the Trust under the Act. The
Subadviser shall prepare and maintain, or cause to be prepared and
maintained, in such form, for such periods and in such locations as may
be required by applicable law, all documents and records relating to
the services provided by the Subadviser pursuant to this Agreement
required to be prepared and maintained by the
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Subadviser or the Trust pursuant to the rules and regulations of any
national, state, or local government entity with jurisdiction over the
Subadviser or the Trust, including the Commission and the Internal
Revenue Service. The books and records pertaining to the Trust which
are in possession of the Subadviser shall be the property of the Trust.
The Trust, or the Trust's authorized representatives, shall have access
to such books and records at all times during the Subadviser's normal
business hours. Upon the reasonable request of the Trust, copies of any
such books and records shall be provided promptly by the Subadviser
(either directly or through the Adviser) to the Trust or its authorized
representatives.
(d) The Subadviser acknowledges and agrees that the Adviser is
ultimately responsible for providing to the Fund the services required
of it under the Investment Advisory Agreement. Accordingly, the
Subadviser shall discharge its duties and responsibilities specified in
this Section 2 and elsewhere in this Agreement subject at all times to
the direction, control and oversight of the Adviser. In furtherance
thereof, the Subadviser shall, without limitation, (i) make its offices
available to representatives of the Adviser for on-site inspections and
consultations with the officers and applicable portfolio managers of
the Subadviser responsible for the day-to-day management of the Fund,
(ii) upon request, provide the Adviser with copies of all records it
maintains regarding its management of the Fund and (iii) report to the
Adviser each calendar quarter and at such other times as the Adviser
may reasonably request regarding (A) the Subadviser's implementation of
the Fund's investment program and the Fund's portfolio composition and
performance, (B) any policies and procedures implemented by the
Subadviser to ensure compliance with United States securities laws and
regulations applicable to the Subadviser and the Fund, (C) the Fund's
compliance with the investment objectives, policies and limitations set
forth in the Fund's then current prospectus and Statement of Additional
Information and any additional operating policies or procedures that
the Trust communicates to the Subadviser in writing (either directly or
through the Adviser) and (D) such other matters as the Adviser may
reasonably request.
SECTION 3. EXPENSES
The Subadviser agrees to provide, at its own expense, the office space,
facilities, furnishings and equipment, and the staff and personnel necessary for
the Subadviser to perform the services required of it under this Agreement.
Except as provided in this Agreement, the Subadviser shall have no
responsibility or obligation to pay any costs or expenses of the Trust, the Fund
or the Adviser.
SECTION 4. STANDARD OF CARE
(a) The Trust and the Adviser shall expect of the Subadviser, and the
Subadviser will give the Trust and the Adviser the benefit of, the
Subadviser's best judgment and efforts in rendering its services on
behalf of the Fund, and as an inducement to the Subadviser's
undertaking these services the Subadviser shall not be liable hereunder
for any mistake of judgment or in any event whatsoever, except for lack
of good faith, provided that nothing herein shall be deemed to protect,
or purport to protect, the Subadviser against any
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liability to the Trust, the Trust's shareholders or the Adviser to
which the Subadviser would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of the
Subadviser's duties hereunder, or by reason of the Subadviser's
reckless disregard of its obligations and duties hereunder. As used in
this Section 5, the term "Subadviser" shall include any affiliated
person of the Subadviser (other than the Adviser) performing services
on behalf of the Fund contemplated hereby and directors, officers and
employees of the Subadviser as well as the Subadviser itself.
(b) The Subadviser shall not be liable for any losses caused by
disturbances of its operations by virtue of force majeure, war, riot,
or damage caused by nature or due to other events for which it is not
responsible (e.g., strike, lock-out or losses caused by the imposition
of foreign exchange controls, expropriation of assets or other acts of
domestic or foreign authorities) except under circumstances provided
for in Section 5(a).
The presence of exculpatory language in this Agreement shall not in any way
limit or be deemed by anyone to limit the Trust, the Trustees of the Trust, the
Fund, the Adviser, the Subadviser, or any other party appointed pursuant to this
Agreement, including without limitation any custodian, as in any way limiting
causes of action and remedies which may, notwithstanding such language, be
available to the Trust, the Trustees of the Trust, the Fund, the Adviser, the
Subadviser or any other party appointed pursuant to this Agreement, either under
common law or statutory law principles applicable to fiduciary relationships or
under the federal securities laws of the United States.
SECTION 5. COMPENSATION
For the services to be rendered by the Subadviser as provided in this Agreement,
the Adviser (and not the Trust or the Fund) will pay to the Subadviser a monthly
fee in an amount equal to twenty-five percent (25%) of all fees actually paid by
the Fund to the Adviser for such month under Section 6 of the Investment
Advisory Agreement; provided, however, that the Subadviser's fee payable
hereunder for any period shall be reduced such that the Subadviser bears
twenty-five percent (25%) of any voluntary fee waiver observed or expense
reimbursement borne by the Adviser with respect to the Fund for such period. For
clarity, the Adviser shall be obligated to pay the Subadviser fees hereunder for
any period only out of and following the Adviser's receipt from the Fund of
advisory fees pursuant to Section 6 of the Investment Advisory Agreement for
such period. Subject to the foregoing, such fees shall be accrued by the Adviser
daily and shall be payable monthly in arrears on the first day of each calendar
month for services performed hereunder during the prior calendar month.
SECTION 6. EFFECTIVENESS, DURATION, AND TERMINATION
(a) This Agreement shall become effective on the date first written
above and shall remain in effect for a period of one year from the date
of its effectiveness and shall continue in effect for successive
twelve-month periods (computed from each anniversary date of the
approval); provided that such continuance is specifically approved at
least annually (i) by the Board or by the vote of a majority of the
outstanding voting securities of the Fund, and, in either case, (ii) by
a majority of the Trust's Trustees who are not parties to this
Agreement or interested persons of any such party (other than as
Trustees
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of the Trust); provided further, however, that if this Agreement or the
continuation of this Agreement is not approved, the Subadviser may
continue to render to the Fund the services described herein in the
manner and to the extent permitted by the Act and the rules and
regulations thereunder.
(b) This Agreement may be terminated at any time, without the payment
of any penalty (i) by the Board or by a vote of a majority of the
outstanding voting securities of the Fund on 60 days' written notice to
the Subadviser; (ii) by the Adviser on 60 days' written notice to the
Subadviser; or (iii) by the Subadviser on 60 days' written notice to
the Adviser and the Trust. This Agreement shall terminate automatically
upon assignment as defined in the Act.
SECTION 7. ACTIVITIES OF THE SUBADVISER
Except to the extent necessary to perform its obligations hereunder, nothing
herein shall be deemed to limit or restrict the Subadviser's right, or the right
of any of the Subadviser's officers, directors or employees who may also be a
Trustee, officer or employee of the Trust, or persons otherwise affiliated
persons of the Trust to engage in any other business or to devote time and
attention to the management or other aspects of any other business, whether of a
similar or dissimilar nature, or to render services of any kind to any other
corporation, trust, firm, individual or association. It is specifically
understood that officers, directors and employees of the Subadviser and its
affiliates may continue to engage in providing portfolio management services and
advice to other investment companies, whether or not registered, and to other
investment advisory clients. When other clients of the Subadviser desire to
purchase or sell a security at the same time such security is purchased or sold
for the Fund, such purchases and sales will, to the extent feasible, be
allocated among the Fund and such clients in a manner believed by the Subadviser
to be equitable to the Fund and such clients.
SECTION 8. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of the Fund shall not be liable
for any obligations of the Trust or of the Fund under this Agreement, and the
Subadviser agrees that, in asserting any rights or claims under this Agreement,
it shall look only to the assets and property of the Trust or the Fund to which
the Subadviser's rights or claims relate in settlement of such rights or claims,
and not to the Trustees of the Trust or the shareholders of the Fund.
SECTION 9. NOTICE
Any notice or other communication required to be given pursuant to this
Agreement shall be in writing or by telex and shall be effective upon receipt.
Notices and communications shall be given, if to the Trust, at:
Xxxxxxxx Capital Funds (Delaware)
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
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if to the Adviser, at:
Xxxxxxxx Investment Management North America Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxx X. Xxxxx
and if to the Subadviser, at:
Xxxxxxxx Investment Management North America Limited
00 Xxxxxxx Xxxxxx
Xxxxxx, X.X. XX0X 0XX
Attention: Legal Department
SECTION 10. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed
by all parties hereto.
(b) This Agreement shall be governed and shall be construed in
accordance with the laws of the State of Delaware.
(c) This Agreement may be executed by the parties hereto in any number
of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(d) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and
enforced as if the Agreement did not contain the particular part, term
or provision held to be illegal or invalid.
(e) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(f) The terms "vote of a majority of the outstanding voting
securities," "interested person," affiliated person" and "assignment"
shall have the meanings ascribed thereto in the Act.
(g) The Fund will be treated as an Intermediate Customer under rules of
the FSA.
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IN WITNESS WHEREOF, the parties hereto have caused this Investment Subadvisory
Agreement to be duly executed on its behalf by its duly authorized
representative, all as of the day and year first written above.
XXXXXXXX CAPITAL FUNDS (DELAWARE),
ON BEHALF OF ITS SCHRODER EMERGING MARKETS FUND SERIES
By: ____________________________________
Name:
Title:
XXXXXXXX INVESTMENT MANAGEMENT
NORTH AMERICA INC.
By: ____________________________________
Name:
Title:
XXXXXXXX INVESTMENT MANAGEMENT
NORTH AMERICA LIMITED
By: ____________________________________
Name:
Title:
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