Exhibit (5)(i)
SCHRODER CAPITAL FUNDS
INVESTMENT SUBADVISORY AGREEMENT
June 15, 1998
AGREEMENT made this 15th day of June, 1998, among Xxxxxxxx Capital
Funds (the "Trust"), a business trust organized under the laws of the State of
Delaware with its principal place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxx 00000, Xxxxxxxx Capital Management International Inc. (the "Adviser"), a
corporation organized under the laws of the State of New York with its principal
place of business at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and Xxxxxxxx
Investment Management, Ltd. with its principal office and place of business at
00 Xxxxxxx Xxxxxx, Xxxxxx, X.X. XX0X 0XX (the "Subadviser").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Act"), as an open-end management investment company and
is authorized to issue its shares of beneficial interest, no par value, in
separate series and classes;
WHEREAS, the Subadviser provides investment advice and is registered
with the Securities and Exchange Commission (the "SEC") as an investment adviser
under the Investment Advisers Act of 1940, as amended (the "Advisers Act"), and
is registered with the United Kingdom Investment Management Regulatory
Organization ("IMRO");
WHEREAS, the Trust and the Adviser desire that the Subadviser perform
investment advisory services for Schroder International Smaller Companies
Portfolio (the "Portfolio") 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 to the Portfolio; and
NOW THEREFORE, in consideration for the promises and covenants
contained herein, the Trust, the Adviser and the Subadviser hereby agree as
follows:
SECTION 1. THE TRUST; DELIVERY OF DOCUMENTS
The Trust is engaged in the business of investing and reinvesting its
assets in securities of the type and in accordance with the limitations
specified in its Trust Instrument, By-Laws and Registration Statement filed with
the Securities and Exchange Commission (the "Commission") under the Act and the
Securities Act of 1933 (the "Securities Act"), including any representations
made in the prospectus and statement of additional information relating to the
Portfolio contained therein and as may be supplemented from time to time, all in
such manner and to such extent as may from time to time be authorized by the
Trust's Board of Trustees (the "Board"). The Trust is currently authorized to
issue thirty-one series of shares and the Board is authorized to issue any
unissued shares in any number of additional classes or series. The Trust has
delivered to the
Adviser copies of the documents listed in this Section 1 and will from time to
time furnish Subadviser with any amendments thereof.
SECTION 2. INVESTMENT SUBADVISER; APPOINTMENT
Subject to the direction and control of the Board, the Adviser manages
the investment and reinvestment of the assets of the Portfolio and provides for
certain management and services as specified in the Investment Advisory
Agreements between the Trust and the Adviser with respect to the Portfolio.
The Adviser hereby employs Subadviser, subject to the direction and
control of the Adviser and the Board, to manage the investment and reinvestment
of the assets in each Portfolio and, without limiting the generality of the
foregoing, to provide other services as specified herein, all in such manner and
to such extent as may be directed from time to time by the Adviser. The
Subadviser accepts this employment and agrees to render its services for the
compensation set forth herein.
SECTION 3. DUTIES OF THE SUBADVISER
(a) The Subadviser is authorized to make decisions with respect to
purchases and sales of securities and other investment assets in the Portfolio.
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 Portfolio. In all purchases, sales and other transactions in
securities for the Portfolio, 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) The Subadviser will report to the Board at each meeting thereof all
changes in the Portfolio since the prior report, and will also keep the Board
informed of important developments affecting the Trust, the Portfolio and the
Subadviser, and on its own initiative, will furnish the Board 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 a Portfolio's holdings, the industries in which they engage, or the
economic, social or political conditions prevailing in each country in which the
Portfolio maintains investments. The Subadviser will also furnish the Board with
such statistical and analytical information with respect to securities in the
Portfolio as the Subadviser may believe appropriate or as the Board reasonably
may request. In making purchases and sales of securities for a Portfolio, the
Subadviser will bear in mind the policies set from time to time by the Board as
well as the limitations imposed by the Trust's Trust Instrument, By-Laws and
Registration Statement under the Act and the Securities Act, 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 Portfolio.
(c) The Subadviser will from time to time employ or associate with such
persons as the Subadviser believes to be particularly fitted to assist in the
execution of the Subadviser's duties hereunder, the cost of performance of such
duties to be borne and paid by the Subadviser. No obligation may be incurred on
the Trust's behalf in any such respect.
(d) The Subadviser shall maintain records for each Portfolio 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 Trust
pursuant to the rules and regulations of any national, state, or local
government entity with jurisdiction over the Trust, including the Securities and
Exchange 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 to the Trust
or the Trust's authorized representatives.
SECTION 4. EXPENSES
Subject to any expense reimbursement arrangements between the Adviser
or others and the Trust, the Trust shall be responsible and shall assume the
obligation for payment of all of the Trust's expenses. The Subadviser shall pay
for maintaining its staff and personnel necessary to perform its obligations
under this Agreement and shall, at its own expense maintain the office space,
facilities, equipment and personnel that are reasonably necessary to carry out
its obligations hereunder.
SECTION 5. STANDARD OF CARE
The Trust shall expect of the Subadviser, and the Subadviser will give
the Trust the benefit of, the Subadviser's best judgment and efforts in
rendering its services to the Trust, 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 liability to the Trust or to the Trust's interest
holders 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 affiliates of the Subadviser performing
services for the Portfolio contemplated hereby and directors, officers and
employees of the Subadviser as well as the Subadviser itself.
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
the Subadviser 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).
The presence of exculpatory language in this Agreement shall not be
deemed by the Trust, the Portfolio, 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 Portfolio either under common
law or statutory law principles applicable to fiduciary relationships or under
the Federal securities laws.
SECTION 6. COMPENSATION
In consideration of the foregoing, the Adviser shall pay the
Subadviser, with respect to the Portfolio, a fee at an annual rate as listed in
Appendix A hereto. 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 7. EFFECTIVENESS, DURATION, AND TERMINATION
(a) This Agreement shall become effective with respect to the Portfolio
immediately upon the later of approval 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 of the Trust) and, if required by applicable law, by a vote of
a majority of the outstanding voting securities of the Portfolio.
(b) This Agreement shall remain in effect with respect to the Portfolio
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) with respect to the Portfolio; 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 Portfolio,
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 of the Trust); provided further, however, that if this Agreement or the
continuation of this Agreement is not approved as to a Portfolio, the Subadviser
may continue to render to that Portfolio the services described herein in the
manner and to the extent permitted by the Act and the rules and regulations
thereunder.
(c) 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 interests of a Portfolio on 60 days' written notice to the Subadviser;
(ii) by the Adviser on 60 days' written notice to the Subadvisor; or (iii) by
the Subadviser on 60 days' written notice to the Trust. This Agreement shall
terminate upon assignment.
SECTION 8. 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 Portfolio, such purchases and sales will, to the
extent feasible, be allocated among the Portfolio and such clients in a manner
believed by the Subadviser to be equitable to the Portfolio and such clients.
SECTION 9. LIMITATION OF INTERESTHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the interestholders of the Portfolio
shall not be liable for any obligations of the Trust or of the Portfolio 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 Portfolio 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
interestholders of the Portfolio.
SECTION 10. 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:
Schroder Capital Funds (Delaware)
Two Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
if to the Adviser, at:
Xxxxxxxx Capital Management International Inc.,
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
and if to the Subadviser, at:
Xxxxxxxx Investment Management International, Ltd.
00 Xxxxxxx Xxxxxx
Xxxxxx, X.X. XX0X 0XX
SECTION 11. 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 and, if required by applicable law, by a vote of a majority of
the outstanding voting securities of the Portfolio.
(b) This Agreement shall be governed by and shall be construed in
accordance with the laws of the State of Delaware.
(c) This Agreement may be executed by the parties hereto on 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 Subadviser confirms that the Portfolio is a "Non-private
customer" as defined in the rules of the IMRO.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXXXXX CAPITAL FUNDS
__________________________
XXXXXXXX CAPITAL MANAGEMENT
INTERNATIONAL, INC.
__________________________
XXXXXXXX INVESTMENT MANAGEMENT
INTERNATIONAL, LTD
__________________________
