▇▇▇▇▇▇▇▇ CAPITAL FUNDS (DELAWARE)
INVESTMENT SUBADVISORY AGREEMENT
SCHRODER INTERNATIONAL FUND
This AGREEMENT dated as of the ____ day of _________, 2004, is entered into
among ▇▇▇▇▇▇▇▇ Capital Funds (Delaware) (the "Trust"), a business trust
organized under the laws of the State of Delaware with its principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇▇
Investment Management North America Limited (the "Subadviser"), a U.K.
corporation with its principal office and place of business at ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇.
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 International 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 and Restated Investment Advisory Agreement, dated as of January 9, 1996,
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 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
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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 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
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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 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 (including without limitation any
custodian), either under common law or statutory law principles applicable to
fiduciary relationships or under the federal securities laws of the United
States.
In addition, nothing in this Agreement shall exclude any liability of the
Subadviser to the Fund arising under the United Kingdom Financial Services and
Markets Act of 2000 ("FSMA"), any regulations made under the FSMA, the Pensions
Act of 1995 or FSA Rules. In accordance with FSA requirements, the Subadviser
has classified the Fund as an Intermediate Customer.
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:
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▇▇▇▇▇▇▇▇ Capital Funds (Delaware)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
if to the Adviser, at:
▇▇▇▇▇▇▇▇ Investment Management North America Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and if to the Subadviser, at:
▇▇▇▇▇▇▇▇ Investment Management North America Limited
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇
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.
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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.
▇▇▇▇▇▇▇▇ CAPITAL FUNDS (DELAWARE),
ON BEHALF OF ITS SCHRODER INTERNATIONAL FUND SERIES
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT
NORTH AMERICA INC.
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ INVESTMENT MANAGEMENT
NORTH AMERICA LIMITED
By: ____________________________________
Name:
Title:
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