DRAFT 02/18/02
▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERIES
▇▇▇▇ ▇▇▇▇▇▇▇ U.S. Global Leaders Growth Fund
Sub-Investment Management Contract
Dated May 13, 2002
▇▇▇▇ ▇▇▇▇▇▇▇ ADVISERS, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERIES
|▇▇▇▇ ▇▇▇▇▇▇▇ U.S. Global Leaders Growth Fund
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, INCORPORATED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Sub-Investment Management Contract
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Ladies and Gentlemen:
▇▇▇▇ ▇▇▇▇▇▇▇ Capital Series (the "Trust") has been organized
as a business trust under the laws of The Commonwealth of Massachusetts to
engage in the business of an investment company. The Trust's shares of
beneficial interest may be classified into series, each series representing the
entire undivided interest in a separate portfolio of assets. Series may be
established or terminated from time to time by action of the Board of Trustees
of the Trust. The Board of Trustees has established several series of the Trust,
including ▇▇▇▇ ▇▇▇▇▇▇▇ U.S. Global Leaders Growth Fund (the "Fund").
The Trustees have selected ▇▇▇▇ ▇▇▇▇▇▇▇ Advisers LLC (the
"Adviser") to provide overall investment advice and management for the Fund, and
to provide certain other services, under the terms and conditions provided in
the Investment Management Contract, dated as of the date hereof, between the
Trust, the Fund and the Adviser (the "Investment Management Contract").
The Adviser and the Trustees have selected ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇, Incorporated (the "Sub-Adviser") to provide the Adviser and the Fund
with the advice and services set forth below, and the Sub-Adviser is willing to
provide such advice and services, subject to the review of the Trustees and
overall supervision of the Adviser, under the terms and conditions set forth in
this agreement (the "Agreement"). The Sub-Adviser hereby represents and warrants
that it is registered as an investment adviser under the Investment Advisers Act
of 1940, as amended (the "Advisers Act"). Accordingly, the Trust, on behalf of
the Fund, and the Adviser agree with the Sub-Adviser as follows:
1. Investment Services. The Sub-Adviser will use its best efforts to
provide to the Fund continuing and suitable investment advice with respect to
investments, consistent with the investment policies, objectives and
restrictions of the Fund as set forth in the Fund's Prospectus and Statement of
Additional Information. In the performance of the Sub-Adviser's duties
hereunder, subject always to the Trust's and the Fund's organizational documents
as amended from time to time and the limitations set forth in the Registration
Statement of the Trust, on behalf of the Fund, as in effect from time to time
under the Securities Act of 1933, as amended (the "1933 Act"), and the
Investment Company Act of 1940, as amended (the "1940 Act"), the Sub-Adviser
will, have investment discretion with respect to the Fund. In performing the
Sub-Adviser's obligations hereunder, the Sub-Adviser shall comply with the
provisions of the Declaration of Trust and By-laws, the 1940 Act, Advisers Act,
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the Commodity Exchange Act and the rules and regulations promulgated under such
statutes and the investment objective, policies and restrictions of the Fund, as
each of the same shall be from time to time in effect as set forth in the Fund's
then current Prospectus and Statement of Additional Information. The Sub-Adviser
shall use its best efforts to cause the Fund to comply with the requirements of
Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"), for
qualification as a regulated investment company. The Sub-Adviser shall also
comply with such policies, guidelines, procedures and instructions as the
Adviser or the Trustees may from time to time establish and deliver to the
Sub-Adviser. No supervisory activity undertaken by the Adviser shall limit the
Sub-Adviser's responsibility for the foregoing. The Sub-Adviser will, at its own
expense:
(a) furnish the Adviser and the Fund with advice and recommendations, consistent
with the investment policies, objectives and restrictions of the Fund as set
forth in the Fund's Prospectus and Statement of Additional Information, with
respect to the purchase, holding and disposition of portfolio securities;
(b) furnish the Adviser and the Fund with advice as to the manner in which
voting rights, subscription rights, rights to consent to corporate action and
any other rights pertaining to the Fund's assets shall be exercised, the Fund
having the responsibility to exercise such voting and other rights;
(c) furnish the Adviser and the Fund with research, economic and statistical
data in connection with the Fund's investments and investment policies, which
are consistent with the past practices of the Sub-Advisor with respect to the
Fund regarding research, economics and statistical data;
(d) submit such reports relating to the valuation of the Fund's securities as
the Trustees may reasonably request and to monitor the value of any security
that is priced at fair value in accordance with the Fund's valuation procedures
and immediately report to the Adviser any change in such fair value;
(e) from time to time or at any time as reasonably requested by the Adviser or
the Trustees, make reports to the Adviser or the Trust of the Sub-Adviser's
performance of the foregoing services and the compliance by the Fund with
applicable statutory and regulatory requirements relating to the management of
the Fund's assets and the Fund's investment objectives, policies and
restrictions and upon request, which may be without notice, to make the
Sub-Adviser's records and premises available for compliance audits by the
Adviser or the Fund's accountants or counsel;
(f) subject to the supervision of the Adviser, maintain all books and records
with respect to the Fund's securities transactions required by the 1940 Act, and
preserve such records for the periods prescribed therefor by the 1940 Act (the
Sub-Adviser agrees that such records are the property of the Trust and copies
will be surrendered to the Trust promptly upon request therefor);
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(g) cooperate with and provide reasonable assistance to the Adviser, the Fund,
the Fund's custodian and foreign sub-custodians, the Fund's pricing agents and
all other agents and representatives of the Fund and the Adviser, furnish such
information with respect to the Fund as they may reasonably request from time to
time in the performance of their obligations, provide prompt responses to
reasonable requests made by such persons and establish appropriate interfaces
with each so as to promote the efficient exchange of information and compliance
with applicable laws and regulations; and
(h) cooperate generally with the Fund and the Adviser to provide information
reasonably requested by the Adviser which is necessary for the preparation of
registration statements and periodic reports to be filed with the Securities and
Exchange Commission, including Form N-1A, periodic statements, shareholder
communications and proxy materials furnished to holders of shares of the Fund,
filings with state "blue sky" authorities and with United States agencies
responsible for tax matters, and other reports and filings of like nature.
(i) The Sub-Adviser shall place all trades for the Fund through the Adviser's
trading desk. The Adviser shall have complete authority to determine the brokers
or dealers through which any trade by the Fund is placed and as to the timing
and manner of the execution of any such trade.
2. Expenses Paid by the Sub-Adviser. The Sub-Adviser will pay the cost of
maintaining the staff and personnel necessary for it to perform its obligations
under this Agreement, the expenses of office rent, telephone, telecommunications
and other facilities it is obligated to provide in order to perform the services
specified in Section 1, and any other expenses incurred by it in connection with
the performance of its duties hereunder.
3. Expenses of the Fund Not Paid by the Sub-Adviser. The Sub-Adviser will not be
required to pay any expenses of the Fund which this Agreement does not expressly
make payable by the Sub-Adviser. In particular, and without limiting the
generality of the foregoing but subject to the provisions of Section 2, the
Sub-Adviser will not be required to pay under this Agreement:
(a) the compensation and expenses of Trustees and of independent advisers,
independent contractors, consultants, managers and other agents employed by the
Trust or the Fund other than through the Sub-Adviser;
(b) legal, accounting and auditing fees and expenses of the Trust or
the Fund;
(c) the fees and disbursements of custodians and depositories of the
Trust or the Fund's assets, transfer agents, disbursing agents, plan agents and
registrars;
(d) taxes and governmental fees assessed against the Trust or the
Fund's assets and payable by the Trust or the Fund;
(e) the cost of preparing and mailing dividends, distributions,
reports, notices and proxy materials to shareholders of the Trust or the Fund,
except that the Sub-Adviser shall bear the costs of providing the information
referred to in Section 1(i) to the Adviser;
(f) brokers' commissions and underwriting fees; and
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(g) the expense of periodic calculations of the net asset value of the
shares of the Fund.
4. Compensation of the Sub-Adviser. (a) Subject to Sections 4(b) and (c), for
all services to be rendered, facilities furnished and expenses paid or assumed
by the Sub-Adviser as herein provided for the Fund, the Adviser will pay the
Sub-Adviser quarterly, in arrears, within 5 business days after the end of each
quarter, a fee equal on an annual basis to the following percentages of the
Fund's average daily net assets: (i) 0.3375% with respect to the first
$500,000,000 of the average daily net asset value of the Fund; (ii) 0.3000% with
respect to the average daily net asset value of the Fund in excess of
$500,000,000 up to $1,000,000,000; (iii) 0.2625% with respect to the average
daily net asset value of the Fund in excess of $1,000,000,000 up to
$1,500,000,000; (iv) 0.2250% of the average daily net asset value of the Fund in
excess of $1,500,000,000 up to $2,000,000,000; and (v) 0.1875% of the average
daily net asset value of the Fund in excess of $2,000,000,000.
The "average daily net assets" of the Fund shall be determined
on the basis set forth in the Fund's Prospectus or otherwise consistent with the
1940 Act and the regulations promulgated thereunder. The Sub-Adviser will
receive a pro rata portion of such fee for any periods in which the Sub-Adviser
advises the Fund less than a full quarter. The Fund shall not be liable to the
Sub-Adviser for the Sub-Adviser's compensation hereunder. Calculations of the
Sub-Adviser's fee will be based on average net asset values as provided by the
Adviser.
(b) In the event that, and each time that, prior to the fifth anniversary of the
Effective Date, a member of the Sub-Adviser's portfolio management team ceases
employment with the Sub-Adviser, the quarterly fee paid to the Sub-Adviser shall
be reduced by 20% of the fee that the Sub-Adviser would otherwise earn for such
quarterly period under the this Agreement until the Sub-Adviser retains a new
member of its portfolio management team as a substitute for the departed
portfolio manager. No such substitute portfolio manager shall be selected
without the written consent of the Adviser, which consent shall not be
unreasonably withheld. A pro rata adjustment shall be made with respect to any
quarter during which such condition existed only for a portion of such quarter.
(c) (i) For the period from the Effective Date until the first anniversary of
the Effective Date, the minimum fee payable to the Sub-Adviser pursuant to
Section 4(a) shall be $750,000, which shall be payable in cash. If the
Sub-Adviser shall be entitled to a Sub-Advisory fee for such annual period in
excess of $750,000, the payment of such excess shall be deferred until the third
anniversary of the Effective Date and subject to the condition set forth in (vi)
below.
(ii) For the period from the first anniversary of the Effective Date until the
second anniversary of such Effective Date, the fee payable to the Sub-Adviser
pursuant to Section 4(a) shall be paid in cash up to $1,000,000 (it being
understood that the $1,000,000 is not a minimum fee). If the Sub-Adviser shall
be entitled to a Sub-Advisory fee for such annual period in excess of
$1,000,000, the payment of such excess shall be deferred until the third
anniversary of the Effective Date and subject to the condition set forth in (vi)
below.
(iii) For the period from the second anniversary of the Effective Date until the
third anniversary of the Effective Date, the fee payable to the Sub-Adviser
pursuant to Section 4(a) shall be paid in cash up to $1,500,000 (it being
understood that the $1,500,000 is not a minimum fee). If the Sub-Adviser shall
be entitled to a Sub-Advisory fee for such annual period in excess of
$1,500,000, the payment of such excess shall be deferred until the third
anniversary of the Effective Date and subject to the condition set forth in (vi)
below.
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(iv) ▇▇▇ shall withhold any deferred amount pursuant to (i), (ii) or (iii) of
this Section 4(c) after the cash payment has been made in full to the
Sub-Adviser.
(v) Notwithstanding anything to the contrary herein, the aggregate amount of
Sub-Advisory fees deferred during the three year period after the Effective Date
shall not exceed $3,250,000.
(vi) If at any time prior to the third anniversary of the Effective Date, ▇▇▇▇▇▇
▇▇▇▇▇▇ is not employed by the Sub-Adviser for any reason or is not an active
member of the Fund's portfolio management team (other than due to the
termination of this Agreement by the Adviser or the Trust without "cause" (as
defined in the Agreement among the Adviser, the Sub-Adviser and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
dated as of February __, 2002 (the "YWM" Agreement"), the amounts deferred
pursuant to this Section 4(c) shall no longer be payable to the Sub-Adviser.
(vii) At the end of each calendar quarter during which a portion of the
Sub-Advisory fee is deferred, the Adviser shall invest the deferred amount in,
at the Adviser's option, either commercial paper or other money market
instruments (including a money market fund managed by the Adviser) (the "Money
Market Instruments") or in shares of the Fund. The amount of each deferred
payment of Sub-Advisory fee shall be increased or decreased to reflect the
return of the Money Market Instruments or the Fund, as the case may be, during
the period from the date each such investment is made until the third
anniversary of the Effective Date. Except as provided in the preceding sentence
and in Section 4(b)(vi), any deferred amount of Sub-Advisory fee shall be
payable to the Sub-Adviser within 30 days after the third anniversary of the
Effective Date.
(viii) If this Agreement terminates automatically in the event of its assignment
pursuant to Section 10 hereof and the Advisor continues the subadvisory
relationship with the Sub-Adviser or its successor by entering into a new
subadvisory agreement, any and all deferred amounts of the Sub-Advisory fee
being held by Adviser pursuant to this Section 4 shall continue to be payable to
the Sub-Adviser within 30 days after the third anniversary of the Effective Date
in accordance with the terms of this Section 4.
(d) The Adviser shall provide to the Sub-Adviser, promptly following request
therefor, all information reasonably requested by the Sub-Adviser to support the
calculation of the Sub-Advisory fee (including any deferrals thereof) and shall
permit the Sub-Advisor or its agents, upon reasonable notice and at reasonable
times and at Sub-Adviser's cost to inspect the books and records of the Adviser
pertaining to such calculation. The Sub-Adviser may dispute the Adviser's
calculation of the Sub-Adviser's compensation provided for under this Section 4
via binding arbitration by a panel of three (3) arbitrators consisting of three
(3) accountants. Each side shall select one (1) accountant. The selected
accountants shall appoint a third accountant. The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. ss.ss.1-16, and any court having
jurisdiction thereof may enter judgment upon the award rendered by the
arbitrator. The place of arbitration shall be Boston, Massachusetts. The
arbitration shall begin within thirty (30) days of the Sub-Adviser's notice of
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its intent to arbitrate unless the Adviser and Sub-Adviser agree in writing to
an extension. The fees and expenses of the arbitration itself shall be borne
equally by the parties to such arbitration; provided, however, that the
arbitrator shall be empowered to award reimbursement of fees and expenditures of
the prevailing party by the non-prevailing party. Each party shall bear its own
expenses and its own costs incidental to each arbitration. The procedures
specified in this paragraph shall be the sole and exclusive procedures for the
resolution of disputes between the parties relating to the calculation of the
compensation of the Sub-Adviser under this Agreement.
5. Other Activities of the Sub-Adviser and Its Affiliates. Nothing herein
contained shall prevent the Sub-Adviser or any associate of the Sub-Adviser from
engaging in any other business or from acting as investment adviser or
investment manager for any other person or entity. It is understood that
officers, directors and employees of the Sub-Adviser or its affiliates may
continue to engage in providing portfolio management services and advice to
other investment companies, whether or not registered, to other investment
advisory clients of the Sub-Adviser or its affiliates and to said affiliates
themselves.
6. Avoidance of Inconsistent Position. In connection with purchases or sales of
portfolio securities for the account of the Fund, neither the Sub-Adviser nor
any of its investment management subsidiaries nor any of such investment
management subsidiaries' directors, officers or employees will act as principal
or agent or receive any commission, except as may be permitted by the 1940 Act
and rules and regulations promulgated thereunder. The Sub-Adviser shall not
knowingly recommend that the Fund purchase, sell or retain securities of any
issuer in which the Sub-Adviser has a financial interest without obtaining prior
approval of the Adviser prior to the execution of any such transaction.
Nothing herein contained shall limit or restrict the Sub-Adviser or any of its
officers, affiliates or employees from buying, selling or trading in any
securities for its or their own account or accounts. The Trust and Fund
acknowledge the Sub-Adviser and its officers, affiliates, and employees, and its
other clients may at any time have, acquire, increase, decrease or dispose of
positions in investments which are at the same time being acquired or disposed
of hereunder. The Sub-Adviser shall have no obligation to acquire with respect
to the Fund, a position in any investment which the Sub-Adviser, its officers,
affiliates or employees may acquire for its or their own accounts or for the
account of another client, if in the sole discretion of the Sub-Adviser, it is
not feasible or desirable to acquire a position in such investment on behalf of
the Fund. Nothing herein contained shall prevent the Sub-Adviser from purchasing
or recommending the purchase of a particular security for one or more funds or
clients while other funds or clients may be selling the same security.
7. No Partnership or Joint Venture. The Trust, the Fund, the Adviser and the
Sub-Adviser are not partners of or joint venturers with each other and nothing
herein shall be construed so as to make them such partners or joint venturers or
impose any liability as such on any of them.
8. Name of the Trust and the Fund. The Trust and the Fund may use the name "▇▇▇▇
▇▇▇▇▇▇▇" or any name or names derived from or similar to the names "▇▇▇▇ ▇▇▇▇▇▇▇
Advisers, Inc." or "▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company" only for so long as the
Investment Management Contract remains in effect. At such time as such agreement
shall no longer be in effect, the Trust and the Fund will (to the extent that
they lawfully can) cease to use such a name or any other name indicating that
the Fund is advised by or otherwise connected with the Adviser. The Fund
acknowledges that it has adopted the name ▇▇▇▇ ▇▇▇▇▇▇▇ U.S. Global Leaders
Growth Fund through permission of ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company, a
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Massachusetts insurance company, and agrees that ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance
Company reserves to itself and any successor to its business the right to grant
the nonexclusive right to use the name "▇▇▇▇ ▇▇▇▇▇▇▇" or any similar name or
names to any other corporation or entity, including but not limited to any
investment company of which ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company or any
subsidiary or affiliate thereof shall be the investment adviser.
9. Limitation of Liability of Sub-Adviser. The Sub-Adviser shall not be liable
for any losses, claims, damages, liabilities or litigation (including legal and
other expenses) incurred or suffered by the Adviser, the Trust, the Fund or any
of their affiliates as a result of any error of judgment or mistake of law by
the Sub-Adviser with respect to the Fund, except that nothing in this Agreement
shall operate or purport to operate in any way to exculpate, waive or limit the
liability of the Sub-Adviser for, and the Sub-Adviser shall indemnify and hold
harmless the Adviser, the Trust, the Fund and all affiliated persons thereof
(within the meaning of Section 2(a)(3) of the 1940 Act) and all controlling
persons (as described in Section 15 of the 1933 Act) (collectively, the "Adviser
Indemnitees") against any and all losses, claims, damages, liabilities or
litigation (including reasonable legal and other expenses) to which any of the
Adviser Indemnities may become subject under the 1933 Act, the 1940 Act, the
Advisers Act, or under any other statute, at common law or otherwise arising out
of or based on (a) the Sub-Adviser's causing the Fund to be in violation of any
applicable federal or state law, rule or regulation or any investment policy or
restriction set forth in the Fund's Prospectus or Statement of Additional
Information or any written policies, procedures, guidelines or instructions
provided in writing to the Sub-Adviser by the Trustees or the Adviser, (b) the
Sub-Adviser's causing the Fund to fail to satisfy the requirements of Subchapter
M of the Code for qualification as a regulated investment company, or (c) the
Sub-Adviser's willful misfeasance, bad faith or gross negligence generally in
the performance of its duties hereunder or its reckless disregard of its
obligations and duties under this Agreement.
10. Duration and Termination of this Agreement. This Agreement shall remain in
force until June 30, 2007; provided that this Agreement shall terminate unless
its continuance is approved prior to June 30, 2003 and annually thereafter in
the manner required by the 1940 Act or the rules and interpretive positions of
the Securities and Exchange Commission under the 1940 Act. This Agreement may,
on 10 days' written notice, be terminated at any time without the payment of any
penalty by the Trust or the Fund by vote of a majority of the outstanding voting
securities of the Fund, by the Trustees or the Adviser and may be terminated
upon 30 days written notice by the Sub-Adviser. Termination of this Agreement
with respect to the Fund shall not be deemed to terminate or otherwise
invalidate any provisions of any contract between the Sub-Adviser and any other
series of the Trust. This Agreement shall automatically terminate in the event
of its assignment or upon termination of the Investment Management Contract. In
interpreting the provisions of this Section 10, the definitions contained in
Section 2(a) of the 1940 Act (particularly the definitions of "assignment,"
"interested person" or "voting security"), shall be applied.
11. 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, and no amendment, transfer, assignment, sale,
hypothecation or pledge of this Agreement shall be effective until approved in
the manner required by the 1940 Act or the rules and interpretive positions of
the Securities and Exchange Commission under the 1940 Act.
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12. Provision of Certain Information by the Sub-Adviser. The Sub-Adviser will
promptly notify the Adviser in writing of the occurrence of any of the following
events:
(a) the Sub-Adviser fails to be registered as an investment adviser under the
Advisers Act or under the laws of any jurisdiction in which the Sub-Adviser is
required to be registered as an investment adviser in order to perform its
obligations under this Agreement;
(b) 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 Fund (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;
(c) the controlling stockholder or senior management of the Sub-Adviser changes,
there is otherwise an actual change in control (whether through sale of all or
substantially all the assets of the Sub-Adviser or a material change in
management of the Sub-Adviser) or an "assignment" (as defined in the 1940 Act)
has or is proposed to occur;
(d) any occurrence of any event that would disqualify the Sub-Adviser from
serving as a Sub-Adviser with respect to the Fund; or
(e) any representation of the Sub-Adviser under this Agreement is no longer true
in all material respects.
13. Representations and Acknowledgements of Sub-Adviser. The Sub-Adviser hereby
warrants and represents to the Adviser that (a) it has obtained all applicable
licenses, permits, registrations and approvals that may be required in order to
serve in its designated capacities with respect to the Fund, including, but not
limited to registration under the Advisers Act, and shall continue to keep
current such license, permits, registrations and approvals for so long as this
Agreement is in effect; (b) it is not prohibited by the Advisers Act or other
applicable laws and regulations from performing the services contemplated by
this Agreement; and (c) this Agreement has been duly and validly authorized,
executed and delivered on behalf of the Sub-Adviser and is a valid and binding
agreement of the Sub-Adviser enforceable against it in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and limitations on the availability of equitable remedies.
14. Representations and Acknowledgements of Adviser. (a) The Adviser hereby
warrants and represents to the Sub-Adviser that (i) it has obtained all
applicable licenses, permits, registrations and approvals that may be required
in order to serve in its designated capacities with respect to the Fund,
including, but not limited to registration under the Advisers Act, and shall
continue to keep current such license, permits, registrations and approvals for
so long as this Agreement is in effect; and (ii) this Agreement has been duly
and validly authorized, executed and delivered on behalf of the Adviser and is a
valid and binding agreement of the Adviser enforceable against it in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and limitations on the availability of equitable remedies.
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(b) The Adviser represents that it has provided the Sub-Adviser with a complete
copy of its Form ADV as currently in effect and will promptly provide the
Sub-Adviser with copies of all amendments and supplements thereto. Such ADV, as
amended and supplemented from time to time, does not and shall not contain a
material misstatement of the information required to be stated therein.
(c) The Adviser has reviewed the Registration Statement, and any amendments or
supplements thereto, of the Fund as filed with the Securities and Exchange
Commission and represents and warrants that with respect to disclosure about the
Adviser or information relating directly or indirectly to the Adviser, such
Registration Statement, amendment and/or supplement contain, as of the date
thereof, no untrue statement of any material fact and does not omit any
statement of material fact that was required to be stated therein or necessary
to make the statements contained therein not misleading.
15. Insurance. The Sub-Adviser will maintain at all times insurance coverage for
errors and omissions in an amount of coverage not less than $2 million and other
terms to which the Adviser shall not reasonably object.
16. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the Commonwealth of Massachusetts.
17. Severability. The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be deemed invalid or unenforceable in whole or in part.
18. Miscellaneous. (a) The captions in this Agreement are included for
convenience of reference only and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously 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. The name ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Series is the
designation of the Trustees under the Amended and Restated Declaration of Trust
dated February 28, 1992, as amended from time to time. The Declaration of Trust
has been filed with the Secretary of The Commonwealth of Massachusetts. The
obligations of the Trust and the Fund are not personally binding upon, nor shall
resort be had to the private property of, any of the Trustees, shareholders,
officers, employees or agents of the Fund, but only the Fund's property shall be
bound. The Trust or the Fund shall not be liable for the obligations of any
other series of the Trust.
(b) Any information supplied by the Sub-Adviser, which is not otherwise in the
public domain, in connection with the performance of its duties hereunder is to
be regarded as confidential and for use only by the Fund and/or its agents, and
only in connection with the Fund and its investments.
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(c) As used herein, Effective Date means the date on which the Trust's
post-effective amendment to its Registration Statement on Form N-1A with respect
to the Fund becomes effective under the 1933 Act.
(d) This Agreement represents the entire agreement between the parties hereto
with respect to the subject matter hereof and supercedes all prior oral and
written negotiations, commitments and understandings between the parties;
provided that this Agreement shall not supercede or modify the obligations of
the Adviser and the Sub-Adviser under the YWM Agreement, which obligations shall
remain in full force and effect.
Yours very truly,
▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL SERIES on behalf
of ▇▇▇▇ ▇▇▇▇▇▇▇ U.S. Global Leaders Growth Fund
By: ___________________________________
The foregoing contract is hereby agreed to as of the date hereof.
▇▇▇▇ ▇▇▇▇▇▇▇ ADVISERS, LLC
By: ______________________________________
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, INCORPORATED
By: ____________________________
Name:
10