MEMORIAL FUNDS
SUBADVISORY AGREEMENT
AGREEMENT made as of the 1st day of December, 2001, by and among
Memorial Funds, a Delaware business trust, with its principal office and
place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, (the "Trust"); Memorial Investment Advisors, Inc., a Delaware
corporation, with its principal office and place of business at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (the "Adviser") and Eagle Asset
Management, Inc., a wholly-owned subsidiary of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial, a
Florida corporation, with its principal office and place of business at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Subadviser").
WHEREAS, Adviser has entered into an Investment Advisory Agreement
dated the 1stday of January 2001, ("Advisory Agreement") with the Trust;
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended, (the "1940 Act"), as an open-end, management investment
company and may issue its shares of beneficial interest, no par value (the
"Shares"), in separate series;
WHEREAS, pursuant to the Advisory Agreement, and subject to the
direction and control of the Board of Trustees of the Trust (the "Board"),
the Adviser acts as investment adviser for each series of the Trust listed
on Appendix A hereto (each, a "Fund" and, collectively, the "Funds");
WHEREAS, the Trust and Adviser desire to retain the Subadviser to
perform investment advisory services for the Fund and Subadviser is willing
to provide those services on the terms and conditions set forth in this
Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Adviser and the Subadviser hereby agree as
follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust and the Adviser hereby employ Subadviser, subject to the
direction and control of the Board, to manage the investment and
reinvestment of the assets in each Fund and, without limiting the
generality of the foregoing, to provide other services as specified herein.
The Subadviser accepts this employment and agrees to render its services
for the compensation set forth herein.
(b) In connection therewith, the Trust has delivered or will promptly
deliver to the Subadviser copies of (i) the Trust's Trust Instrument and
Bylaws (collectively, as amended from time to time, "Organic Documents"),
(ii) the Trust's Registration Statement and all amendments thereto filed
with the U.S. Securities and Exchange Commission ("SEC") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), or the 1940 Act
(the "Registration Statement"), (iii) the Trust's current Prospectuses and
Statements of Additional Information of each Fund (collectively, as
currently in effect and as amended or supplemented, the "Prospectus"), and
(iv) all procedures adopted by the Trust with respect to any Fund (i.e.,
repurchase agreement procedures) and all written instructions adopted by
the Board with respect to any Fund, and shall promptly furnish the
Subadviser with all amendments of or supplements to the foregoing. The
Trust shall deliver to the Subadviser (x) a certified copy of the
resolution of the Board appointing the Subadviser and authorizing the
execution and delivery of this Agreement, (y) a copy of all proxy
statements and related materials relating to any Fund, and (z) any other
documents, materials or information that the Subadviser shall reasonably
request to enable it to perform its duties pursuant to this Agreement.
(c) The Subadviser has delivered to the Adviser and the Trust a copy
of its (i) Form ADV and (ii) code of ethics complying with the requirements
of Rule 17j-1 under the 1940 Act (the "Code"). If in the opinion of counsel
to the Trust, the code of ethics does not satisfy the requirements of Rule
17j-1, the Subadviser will adopt a code of ethics that does. The Subadviser
shall promptly furnish the Adviser and Trust with all amendments of or
supplements to the code at least annually.
SECTION 2. DUTIES OF THE TRUST AND ADVISER
(a) In order for the Subadviser to perform the services required by
this Agreement, the Trust and the Adviser (i) shall, cause all service
providers to the Trust to furnish information within a reasonable time
relating to any Fund to the Subadviser and assist the Subadviser as may be
required and (ii) shall ensure that the Subadviser has reasonable access to
all records and documents maintained by the Trust, or any service provider
to the Trust.
(b) In order for the Subadviser to perform the services required by
this Agreement, the Adviser shall deliver within a reasonable time to the
Subadviser all material it provides to the Board in accordance with the
Advisory Agreement.
SECTION 3. DUTIES OF THE SUBADVISER
(a) The Subadviser will make decisions with respect to all purchases
and sales of securities and other investment assets in each Fund to the
extent such authority is delegated by the Adviser. 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 Funds. In all purchases, sales and other
transactions in securities and other investments for the Funds, 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.
Consistent with Section 28(e) of the Securities Exchange Act of 1934,
as amended, the Subadviser may allocate brokerage on behalf of the Funds to
broker-dealers who provide research services. The Subadviser may aggregate
sales and purchase orders of the assets of the Funds with similar orders
being made simultaneously for other accounts advised by the Subadviser or
its affiliates. Whenever the Subadviser simultaneously places orders to
purchase or sell the same asset on behalf of a Fund and one or more other
accounts advised by the Subadviser, the orders will be allocated as to
price and amount among all such accounts in a manner believed to be
equitable over time to each account.
(b) The Subadviser will report to the Board at each meeting thereof as
requested by the Adviser or the Board all material changes in each Fund
since the prior report, and will also keep the Board informed of important
developments affecting the Trust, the Funds 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 the Funds' holdings, the industries in which they engage, the economic,
social or political conditions prevailing in each country in which the
Funds maintain investments, or otherwise. The Subadviser will also furnish
the Board with such statistical and analytical information with respect to
investments of the Funds as the Subadviser may believe appropriate or as
the Board reasonably may request. In making purchases and sales of
securities and other investment assets for the Funds, the Subadviser will
bear in mind the policies set from time to time by the Board (to the extent
such policies and limitations have been communicated to the Subadviser), as
well as the limitations imposed by the Organic Documents and Registration
Statement, the limitations in the 1940 Act, the Securities Act, the
Internal Revenue Code of 1986, as amended, and other applicable laws, the
investment objectives, policies and restrictions of the funds.
Notwithstanding the foregoing, Subadviser shall not be responsible for the
Fund's compliance with limitations upon investments by cemetery or funeral
trusts unless such limitations are set forth in the Fund's investment
policies or guidelines provided by Adviser from time to time.
(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 or Adviser's behalf in any such
respect.
(d) The Subadviser will report to the Board all material matters
related to the Subadviser's duties hereunder. On an annual basis, the
Subadviser shall report on compliance by the access persons of the Fund
with its Code to the Adviser and to the Board and upon the written request
of the Adviser or the Trust, the Subadviser shall permit the Adviser and
the Trust, or their respective representatives to examine the reports
required to be made to the Subadviser by the access persons of the Fund
under the Code. The Subadviser will notify the Adviser and the Trust of any
change of control of the Subadviser and any changes in the key personnel
who are either the portfolio manager(s) of the Fund or senior management of
the investment services group of the Subadviser, in each case prior to or
promptly after such change.
(e) The Subadviser will maintain records relating to its portfolio
transactions and placing and allocation of brokerage orders as are required
to be maintained by the Trust under the 1940 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 applicable law. To
the extent required by law, the books and records pertaining to the Trust
which are in possession of the Subadviser shall be the property of the
Trust. The Adviser and the Trust, or their respective representatives,
shall have reasonable access to such books and records at all times during
the Subadviser's normal business hours. Upon the reasonable request of the
Adviser or the Trust, copies of any such books and records shall be
provided promptly by the Subadviser to the Adviser and the Trust, or their
respective representatives.
(f) The Subadviser will cooperate with each Fund's independent public
accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the
accountants' duties.
(g) The Subadviser will provide the Funds' custodian and fund
accountant on each business day with such information relating to all
transactions concerning the Funds' assets under the Subadviser's control as
the custodian and fund accountant may reasonably require. In accordance
with procedures adopted by the Board, the Subadviser is responsible for
assisting in the fair valuation of all Fund assets and will use its
reasonable efforts to arrange for the provision of prices from parties who
are not affiliated persons of the Subadviser for each asset for which the
Funds' fund accountant does not obtain prices in the ordinary course of
business.
(h) Except as otherwise agreed to by the Trust, the Adviser and the
Subadviser, during any period in which a Fund invests all (or substantially
all) of its investment assets in a registered, open-end management
investment company, or separate series thereof, in accordance with Section
12(d)(1)(E) under the 1940 Act, the Subadviser shall have no duties or
obligations pursuant to this Agreement with respect to the Fund.
SECTION 4. COMPENSATION; EXPENSES
(a) In consideration of the foregoing, the Adviser shall pay the
Subadviser, with respect to each Fund, 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. If fees
begin to accrue in the middle of a month or if this Agreement terminates
before the end of any month, all fees for the period from that date to the
end of that month or from the beginning of that month to the date of
termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the
effectiveness or termination occurs. Upon the termination of this Agreement
with respect to a Fund, the Adviser shall pay to the Subadviser such
compensation as shall be payable prior to the effective date of
termination.
(b) The Subadviser may agree to waive all or part of its fees by
separate agreement.
(c) No fee shall be payable hereunder with respect to a Fund during
any period in which the Fund invests all (or substantially all) of its
investment assets in a registered, open-end, management investment company,
or separate series thereof, in accordance with Section 12(d)(1)(E) under
the 1940 Act.
SECTION 5. STANDARD OF CARE
(a) The Trust and Adviser shall expect of the Subadviser, and the
Subadviser will give the Trust and Adviser the benefit of, the Subadviser's
best judgment and efforts in rendering its services hereunder. The
Subadviser shall not be liable to the Adviser or the Trust 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 Adviser or the
Trust 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.
(b) The Subadviser shall not be liable to the Adviser or the Trust for
any action taken or failure to act in good faith reliance upon: (i)
information, instructions or requests, whether oral or written, with
respect to a Fund that the Subadviser reasonably believes were made by a
duly authorized officer of the Adviser or the Trust, (ii) the advice of
counsel to the Trust, and (iii) any written instruction or certified copy
of any resolution of the Board.
(c) The Subadviser shall not be responsible or liable for any failure
or delay in performance of its obligations under this Agreement arising out
of or caused, directly or indirectly, by circumstances beyond its
reasonable control including, without limitation, acts of civil or military
authority, national emergencies, labor difficulties (other than those
related to the Subadviser's employees), fire, mechanical breakdowns, flood
or catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
SECTION 6. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to a Fund
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 Fund.
(b) This Agreement shall remain in effect with respect to a Fund for a
period of two years from the date of its effectiveness and shall continue
in effect for successive annual periods with respect to the Fund; 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 of the Trust); provided further, however,
that if the continuation of this Agreement is not approved as to a Fund,
the Subadviser may continue to render to that Fund the services described
herein in the manner and to the extent permitted by the 1940 Act and the
rules and regulations thereunder.
(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty, (i) by the Board, by a vote of a
majority of the outstanding voting securities of the Fund or by the Adviser
on 60 days' written notice to the Subadviser or (ii) by the Subadviser on
60 days' written notice to the Trust. This Agreement shall terminate
immediately (x) upon its assignment or (y) upon termination of the Advisory
Agreement.
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 directors, officers or employees 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.
SECTION 8. REPRESENTATIONS OF SUBADVISER.
The Subadviser represents and warrants that (i) it is either
registered as an investment adviser under the Investment Advisers Act of
1940, as amended ("Advisers Act") (and will continue to be so registered
for so long as this Agreement remains in effect) or exempt from
registration under the Advisers Act, (ii) is not prohibited by the 1940 Act
or the Advisers Act from performing the services contemplated by this
Agreement, (iii) has met, and will seek to continue to meet for so long as
this Agreement remains in effect, any other applicable federal or state
requirements, or the applicable requirements of any self-regulatory agency,
necessary to be met in order to perform the services contemplated by this
Agreement, and (iv) will promptly notify the Adviser and the Trust of the
occurrence of any event that would disqualify the Subadviser from serving
as an investment adviser of an investment company pursuant to Section 9(a)
of the 1940 Act or otherwise.
SECTION 9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not
be liable for any obligations of the Trust or of the Funds 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 Funds.
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
both parties hereto and approved by the Trust in the manner set forth in
Section 6(b) hereof.
(b) No amendment to this Agreement or the termination of this
Agreement with respect to a Fund shall effect this Agreement as it pertains
to any other Fund, nor shall any such amendment require the vote of the
shareholders of any other Fund.
(c) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(d) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with,
the laws of the State of Delaware.
(e) This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the
subject matter hereof, whether oral or written.
(f) 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.
(g) 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.
(h) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(i) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have
been properly given.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund are separate and
distinct from the assets and liabilities of any other series of the Trust
and that no Fund or other series of the Trust shall be liable or shall be
charged for any debt, obligation or liability of any other Fund or series,
whether arising under this Agreement or otherwise.
(k) No affiliated person, employee, agent, director, officer or
manager of the Subadviser shall be liable at law or in equity for the
Subadviser's obligations under this Agreement.
(l) The terms "vote of a majority of the outstanding voting
securities", "interested person", "affiliated person," "control" and
"assignment" shall have the meanings ascribed thereto in the 1940 Act.
(m) Each of the undersigned warrants and represents that he has full
power and authority to sign this Agreement on behalf of the party indicated
and that his signature will bind the party indicated to the terms hereof
and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding
obligation of the party, enforceable against the party in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
MEMORIAL FUNDS
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
MEMORIAL INVESTMENT ADVISORS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President
EAGLE ASSET MANAGEMENT, INC.
By: /s/
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Name:
Title:
MEMORIAL FUNDS
SUBADVISORY AGREEMENT
Appendix A
FEE AS A % OF THE ANNUAL
FUNDS OF THE TRUST AVERAGE DAILY NET ASSETS OF THE FUND
Government Bond Fund .20
04014.0001 #320343