SUB-ADVISORY AGREEMENT
EX-99.d.2
AGREEMENT made by and between DELAWARE MANAGEMENT COMPANY, a series of DELAWARE MANAGEMENT BUSINESS
TRUST (the “Investment
Manager”) and [NAME OF SUB-ADVISER] (the “Sub-Adviser”).
WITNESSETH:
WHEREAS, OPTIMUM FUND TRUST
(the “Trust”) is an investment company registered under the Investment Company
Act of 1940, as amended (the “1940 Act”), and is organized as a statutory trust
under the laws of the State of Delaware; and
WHEREAS, [NAME OF FUND] (the
“Fund”) is a series of the Trust; and
WHEREAS, the Investment Manager and the Trust,
on behalf of the Fund, have entered into an agreement (the “Investment
Management Agreement”) whereby the Investment Manager will provide investment
advisory services to the Trust with respect to the Fund; and
WHEREAS, the Investment Manager has the
authority under the Investment Management Agreement to retain one or more
sub-advisers to assist the Investment Manager in providing investment advisory
services to the Trust with respect to the Fund; and
WHEREAS, the Investment Manager and the
Sub-Adviser are registered investment advisers under the Investment Advisers Act
of 1940, as amended (the “Advisers Act”), and engage in the business of
providing investment advisory services; and
WHEREAS, the Board of Trustees (the “Board” or
the “Trustees”) of the Trust and the Investment Manager desire that the
Investment Manager retain the Sub-Adviser to render investment advisory and
other services with respect to that portion of the Fund as the Investment
Manager shall from time to time allocate to the Sub-Adviser (the “Managed
Portion”) in the manner, for the period, and on the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual
covenants herein contained, and each of the parties hereto intending to be
legally bound, it is agreed as follows:
1. (a) The Sub-Adviser will
supervise and direct the investments of the assets of the Managed Portion of each Fund listed on
Schedule A attached hereto in accordance with the Fund's investment objectives,
policies, and restrictions as provided in the Fund's Prospectus and Statement of
Additional Information, as currently in effect and as the same may be hereafter
modified, amended and/or supplemented from time to time (hereinafter referred to
as the “Prospectus and SAI”), and such other limitations as the Fund may
impose by notice in writing to the Sub-Adviser, subject always to the
supervision and control of the Investment Manager and the Board.
(b) As part of the services it will provide
hereunder, the Sub-Adviser is authorized and directed, in its discretion and
without prior consultation with the Fund or the Investment Manager to:
(i) obtain and evaluate information relating
to investment recommendations, asset allocation advice, industries, businesses,
securities markets, research, economic analysis, and other investment services with respect to the
securities that are included in the Managed Portion or that are under
consideration for inclusion in the Managed Portion and invest the Managed
Portion in accordance with the Investment Manager's and the Board's written
direction as more fully set forth herein and as otherwise directed;
(ii) regularly make decisions as to what
securities to purchase and sell on behalf of the Fund with respect to the
Managed Portion, effect the purchase and sale of such investments in furtherance
of the Fund’s objectives and policies, and furnish the Board with such
information and reports regarding the Sub-Adviser’s activities in the
performance of its duties and obligations under this Agreement as the Investment
Manager deems appropriate or as the Board may reasonably request, including such
reports, information, and certifications as the officers of the Trust may
reasonably require in order to comply with applicable federal and state laws and
regulations and Trust policies and procedures;
(iii) provide any and all material composite
or other performance information, records and supporting documentation about
accounts or funds the Sub-Adviser manages, if appropriate, that are relevant to
the Managed Portion and that have investment objectives, policies, and
strategies substantially similar to those employed by the Sub-Adviser in
managing the Managed Portion that may be reasonably necessary, under applicable
laws, to allow the Fund or its agent to present information concerning the
Sub-Adviser’s prior performance in the Fund’s Prospectus and SAI, and any
permissible reports and materials prepared by the Fund or its agent;
(iv) provide information as reasonably
requested by the Investment Manager or the Board to assist them or their
delegate in the determination of the fair value of certain portfolio securities
when market quotations are not readily available for the purpose of calculating
the Fund’s net asset value in accordance with procedures and methods established
by the Board;
(v) vote proxies, exercise conversion or
subscription rights, and respond to tender offers and other consent
solicitations (“Corporate Actions”) with respect to the issuers of securities
in which Fund assets may be invested, provided materials relating to such
Corporate Actions have been forwarded to the Sub-Adviser in a timely fashion by
the Fund's custodian or otherwise known to the Sub-Adviser, and to submit
reports regarding such Corporate Actions, including a copy of any policies
regarding such Corporate Actions, in a form reasonably satisfactory to the
Investment Manager and the Fund in order to comply with any applicable federal
or state reporting requirements;
(vi) provide performance and other information
as reasonably requested by the Investment Manager or the Board to assist them or
their delegate in conducting ongoing due diligence and performance monitoring;
and
(vii) except as the Investment Manager and the
Sub-Adviser may agree in writing from time to time, maintain all accounts,
books, and records with respect to the Managed Portion as are required of an
investment adviser of a registered investment company pursuant to the 1940 Act
and the Advisers Act and the rules thereunder. The Sub-Adviser shall furnish to
the Investment Manager copies of all such accounts, books, and records as the
Investment Manager may reasonably request. The Sub-Adviser agrees that such
accounts, books, and records are the property of the Trust, and will be
surrendered to the Trust promptly upon request, with the understanding that the
Sub-Adviser may retain its own copy of all records.
(c) The Sub-Adviser shall not consult with any
other sub-adviser of the Fund or of any fund that is an “affiliated person” of
the Fund concerning transactions for the Fund in securities or other assets. In
no instance will any portfolio securities of the Fund be purchased from, or sold
to, the Investment Manager, the Sub-Adviser, the Trust’s principal underwriter,
or any affiliated persons of the Trust, the Investment Manager, the Sub-Adviser
or the Trust’s principal underwriter, acting as principal in the transaction,
except to the extent permitted by the Securities and Exchange Commission (the
“SEC”) and the 1940 Act, including Rule 17a-7 thereunder. The Sub-Adviser
acknowledges that the Investment Manager and the Trust may rely on Rule 17a-7,
Rule 17a-10, Rule 10f-3, Rule 12d3-1 and Rule 17e-1 under the 1940 Act.
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(d) In furnishing services hereunder, the
Sub-Adviser shall be subject to, and shall perform in accordance with, the
following: (i) the Trust’s Agreement and Declaration of Trust, as the same may
be hereafter modified, amended, and/or supplemented from time to time; (ii) the
Trust’s By-Laws, as the same may be hereafter modified, amended, and/or
supplemented from time to time; (iii) the Fund’s Prospectus and SAI; (iv) the
1940 Act and the Advisers Act and the rules under each and all other federal and
state securities laws or regulations applicable to the Trust and the Fund; (v)
the Trust’s compliance policies and procedures adopted from time to time by the
Board for compliance by the Trust with the Federal Securities Laws (as that term
is defined in Rule 38a-1(e)(1) under the 0000 Xxx) (together, the “Trust
Compliance Procedures”) and any other Trust policies and procedures adopted from
time to time by the Board; and (vi) the written instructions of the Investment
Manager. The Investment Manager agrees to provide the Sub-Adviser with current
copies of the Trust’s and the Fund’s documents mentioned above and all changes
made to such documents.
(e) In order to assist the Trust and the
Trust’s chief compliance officer (the “Trust CCO”) and the Investment Manager
and the Investment Manager’s Chief Compliance Officer (the “IM CCO”) in
satisfying the requirements contained in Rule 38a-1 under the 1940 Act and Rule
206(4)-7 under the Adviser Act, respectively, the Sub-Adviser shall provide to
the Trust CCO and/or IM CCO: (i) direct access to the Sub-Adviser’s chief
compliance officer (the “Sub-Adviser CCO”) and its officers and employees, as
reasonably requested by the Trust CCO and/or IM CCO; (ii) quarterly reports
confirming that the Sub-Adviser has complied with the Trust Compliance
Procedures in managing the Managed Portion; and (iii) quarterly certifications
with respect to Material Compliance Matters (as that term is defined in Rule
38a-1(e)(2) under the 0000 Xxx) related to the Sub-Adviser’s management of the
Managed Portion.
The Sub-Adviser shall promptly provide the
Trust CCO and IM CCO with copies and summaries of: (i) the Sub-Adviser’s
policies and procedures for compliance by the Sub-Adviser with the Federal
Securities Laws and to prevent violation of the Advisers Act (together, the
“Sub-Adviser Compliance Procedures”); and (ii) any material changes to the
Sub-Adviser Compliance Procedures. The Sub-Adviser shall cooperate fully with
the Trust CCO and IM CCO so as to facilitate the Trust CCO’s and IM CCO’s
performance of their respective responsibilities under Rule 38a-1 and Rule
206(4)-7, including to review, evaluate and report to the Board on the operation
of the Sub-Adviser Compliance Procedures, and shall promptly report to the Trust
CCO and IM CCO any Material Compliance Matter arising under the Sub-Adviser
Compliance Procedures involving the Managed Portion. The Sub-Adviser shall allow
the Trust CCO and/or the IM CCO, as reasonably requested from time to time,
access to examine and review the Sub-Adviser’s Compliance Procedures and the
Sub-Adviser’s adherence thereto. The Sub-Adviser shall provide to the Trust CCO
and IM CCO: (i) quarterly reports confirming the Sub-Adviser’s compliance with
the Sub-Adviser Compliance Procedures in managing the Managed Portion; and (ii)
certifications that there were no Material Compliance Matters involving the
Sub-Adviser that arose under the Sub-Adviser Compliance Procedures that affected
the Managed Portion. At least annually, the Sub-Adviser shall provide a
certification to the Trust CCO and IM CCO to the effect that the Sub-Adviser has
in place and has implemented policies and procedures that are reasonably
designed to ensure compliance by the Sub-Adviser with the Federal Securities
Laws, including the conduct and results of our annual review for adequacy and
effectiveness.
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(f) The Sub-Adviser shall assist the Fund in
the preparation of the Trust’s registration statement, the Prospectus and SAI,
shareholder reports and other regulatory filings, or any amendment or supplement
thereto (collectively, “Regulatory Filings”), and shall provide the Fund with
disclosure for use in the Fund’s Regulatory Filings, including, without
limitation, disclosure related to the Sub-Adviser’s investment management
personnel, portfolio manager compensation, investment management strategies and
techniques, and proxy voting policies. The Sub-Adviser shall provide such
certifications regarding the Fund as the Trust’s officers may reasonably request
for purposes of the preparation of any Regulatory Filings.
(g) The Sub-Adviser hereby agrees during the
period hereinafter set forth to render the services and assume the obligations
herein set forth for the compensation herein provided. The Sub-Adviser shall for
all purposes herein be deemed to be an independent contractor, and shall, unless
otherwise expressly provided and authorized, have no authority to act for or
represent the Trust in any way, or in any way be deemed an agent of the Trust.
2. (a) Under the terms of the Investment Management Agreement, the Trust
shall conduct its own business and affairs and shall bear the expenses and
salaries necessary and incidental thereto including, but not in limitation of
the foregoing, the costs incurred in: the maintenance of its existence as a
statutory trust organized under the laws of the State of Delaware; the
maintenance of its own books, records, and procedures; dealing with its own
shareholders; the payment of dividends; transfer of shares, including issuance
and repurchase of shares; preparation of share certificates, if any; reports and
notices to shareholders; calling and holding of shareholders’ meetings;
miscellaneous office expenses; brokerage commissions; custodian fees; legal and
accounting fees; taxes; and federal and state registration fees.
(b) Directors, officers and employees of the
Sub-Adviser may be directors, officers and employees of other funds that have
employed the Sub-Adviser as sub-adviser or investment manager. Directors,
officers and employees of the Sub-Adviser who are Trustees, officers and/or
employees of the Trust, shall not receive any compensation from the Trust for
acting in such dual capacity.
(c) In the conduct of the respective business
of the parties hereto and in the performance of this Agreement, the Trust, the
Investment Manager, and the Sub-Adviser may share facilities common to each,
which may include legal and accounting personnel, with appropriate proration of
expenses between and among them.
3. (a) The Sub-Adviser will select brokers and dealers to effect all Fund
transactions subject to the conditions set forth herein. The Sub-Adviser will
place all necessary orders with brokers, dealers, or issuers, and will negotiate
brokerage commissions, if applicable. The Sub-Adviser is directed at all times
to seek to execute transactions for the Managed Portion (i) in accordance with
any written policies, practices or procedures that may be established by the
Board or the Investment Manager from time to time, and (ii) as described in the
Fund’s Prospectus and SAI. In placing any orders for the purchase or sale of
investments for the Fund, with respect to the Managed Portion, the Sub-Adviser
shall use its best efforts to obtain for the Managed Portion “best execution,”
considering all of the circumstances, and shall maintain records adequate to
demonstrate compliance with this requirement.
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(b) Subject to the appropriate policies and
procedures approved by the Board, the Sub-Adviser may, to the extent authorized
by Section 28(e) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), cause the Managed Portion to pay a broker or dealer that
provides brokerage or research services to the Investment Manager, the
Sub-Adviser and the Managed Portion an amount of commission for effecting a Fund
transaction in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if the Sub-Adviser determines, in
good faith, that such amount of
commission is reasonable in relation to the value of such brokerage or research
services provided viewed in terms of that particular transaction or the
Sub-Adviser’s overall responsibilities to the Fund or its other advisory clients
for which the Investment Manager or the Sub-Adviser exercises investment
discretion. To the extent authorized by Section 28(e) and the Board, the
Sub-Adviser shall not be deemed to have acted unlawfully or to have breached any
duty created by this Agreement or otherwise solely by reason of such action.
Subject to seeking best execution and compliance with applicable federal and
state securities laws and regulations, the Board or the Investment Manager may
direct the Sub-Adviser to effect transactions in Fund securities through
broker-dealers in a manner that will help generate resources to pay the cost of
certain expenses that the Trust is required to pay or for which the Trust is
required to arrange payment.
(c) Any entity or person associated with the
Investment Manager or the Sub-Adviser that is a member of a national securities
exchange is authorized to effect any transaction on such exchange for the
account of the Fund to the extent and as permitted by Section 11(a)(1)(H) of the
Exchange Act.
4. As compensation for the services to be rendered to the Trust for the
benefit of the Fund by the Sub-Adviser under the provisions of this Agreement,
the Investment Manager shall pay to the Sub-Adviser a fee as provided in
Schedule A attached hereto.
5. The services to be rendered by the Sub-Adviser to the Trust for the
benefit of the Fund under the provisions of this Agreement are not to be deemed
to be exclusive, and the Sub-Adviser shall be free to render similar or
different services to others so long as its ability to render the services
provided for in this Agreement shall not be impaired thereby.
6. (a) Subject to the limitation set forth in Paragraph 5, the
Sub-Adviser, its directors, officers, employees, agents, and shareholders may
engage in other businesses, may render investment advisory services to other
investment companies, or to any other corporation, association, firm or
individual, and may render underwriting services to the Trust or to any other
investment company, corporation, association, firm or individual.
(b) Neither the
Investment Manager, the Trust nor the Fund shall use the Sub-Adviser’s actual or
fictitious name(s), xxxx, derivative and/or logo (or that of any affiliate of
the Sub-Adviser, other than that of the Fund, the Trust, or any affiliate of the
Investment Manager that is an affiliate of the Sub-Adviser solely by reason of
the Sub-Adviser’s provision of services pursuant to this Agreement) or otherwise
refer to the Sub-Adviser in any materials distributed to third parties,
including the Fund’s shareholders, without prior review and written approval by
the Sub-Adviser, which may not be unreasonably withheld or delayed. Upon
termination of this Agreement, the Investment Manager, the Trust and the Fund,
shall, to the extent applicable and as soon as is reasonably possible, cease to
use the Sub-Adviser's actual or fictitious name(s), xxxx, derivative and/or
logo.
(c) The
Sub-Adviser shall not use the Investment Manager’s name (or that of any
affiliate of the Investment Manager) or otherwise refer to the Investment
Manager in any materials distributed to third parties, including the Fund’s
shareholders, without prior review and written approval by the Investment
Manager, which may not be unreasonably withheld or delayed. Upon termination of
this Agreement, the Sub-Adviser, shall, to the extent applicable and as soon as
is reasonably possible, cease to use the actual or fictitious name(s), xxxx,
derivative and/or logo of the Investment Manager, the Trust and the Fund.
7. (a) In the absence of willful misfeasance, bad faith, gross
negligence, or reckless disregard in the performance of its duties as
Sub-Adviser to the Trust on behalf of the Fund, the Sub-Adviser shall not be liable to the Trust, the
Fund, the Investment Manager or any shareholder of the Trust for any action or
omission in the course of, or connected with, rendering services hereunder or
for any losses that may be sustained in the purchase, holding or sale of any
security, or otherwise. The Sub-Adviser makes no representation or warranty,
express or implied, that any level of performance or investment results will be
achieved by the Managed Portion or the Fund, or that the Managed Portion or the
Fund will perform comparably with any standard or index, including other clients
of Sub-Adviser, whether public or private.
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(b) The Investment Manager shall indemnify the
Sub-Adviser and its affiliates and its or their controlling persons, officers,
directors, employees, agents, legal representatives and persons controlled by it
(which shall not include the Trust or the Fund) (collectively, “Sub-Adviser
Related Persons”) to the fullest extent permitted by law against any and all
loss, damage, judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys’ fees, (collectively “Losses”) incurred by the
Sub-Adviser or Sub-Adviser Related Persons arising from or in connection with
this Agreement or the performance by the Sub-Adviser or Sub-Adviser Related
Persons of its or their duties hereunder so long as such Losses arise out of the
Investment Manager’s willful misfeasance, bad faith, gross negligence, or
reckless disregard in performing its responsibilities hereunder, including,
without limitation, such Losses arising under any applicable law or that may be
based upon any untrue statement of a material fact contained in the Trust’s
Registration Statement, or any amendment thereof or any supplement thereto, or
the omission to state therein a material fact that was known or that should have
been known and was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in
reasonable reliance upon information furnished to the Investment Manager or the
Trust by the Sub-Adviser or a Sub-Adviser Related Person specifically for
inclusion in the Registration Statement or any amendment thereof or supplement
thereto, except to the extent any such Losses referred to in this paragraph (b)
result from willful misfeasance, bad faith, gross negligence or reckless
disregard on the part of the Sub-Adviser or a Sub-Adviser Related Person in the
performance of any of its duties under, or in connection with, this Agreement.
(c) The Sub-Adviser shall indemnify the Investment Manager and its
affiliates and its or their controlling persons, officers, directors, employees,
agents, legal representatives and persons controlled by it (collectively,
“Investment Manager Related Persons”) to the fullest extent permitted by law
against any and all Losses incurred by the Investment Manager or Investment
Manager Related Persons arising from or in connection with this Agreement or the
performance by the Investment Manager or Investment Manager Related Persons of
its or their duties hereunder so long as such Losses arise out of the
Sub-Adviser’s willful misfeasance, bad faith, gross negligence, or reckless
disregard in performing its responsibilities hereunder, including, without
limitation, such Losses arising under any applicable law or that may be based
upon any untrue statement of a material fact contained in the Trust’s
Registration Statement, or any amendment thereof or any supplement thereto, or
the omission to state therein a material fact that was known or that should have
been known and was required to be stated therein or necessary to make the
statements therein not misleading, if such statement or omission was made in
reasonable reliance upon information furnished to the Investment Manager or the
Trust by the Sub-Adviser or a Sub-Adviser Related Person specifically for
inclusion in the Registration Statement or any amendment thereof or supplement
thereto, except to the extent any such Losses referred to in this paragraph (c)
result from willful misfeasance, bad faith, gross negligence or reckless
disregard on the part of the Investment Manager or an Investment Manager Related
Person in the performance of any of its duties under, or in connection with,
this Agreement.
8. (a) This Agreement shall be executed and
become effective as of the date written below; provided, however, that this Agreement shall not become
effective with respect to the Fund unless it has first been approved in the
manner required by the 1940 Act and the rules thereunder or in accordance with
exemptive or other relief granted by the SEC or its staff. This Agreement shall
continue in effect for a period
of two (2) years and may be renewed thereafter only so long as such renewal and
continuance is specifically approved at least annually by the Board or by the
vote of a majority of the outstanding voting securities of the Fund and only if
the terms and the renewal hereof have been approved by the vote of a majority of
those Trustees of the Trust who are not parties hereto or “interested persons”
of the Trust, the Fund, or any party hereto, cast in person at a meeting called
for the purpose of voting on such approval.
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(b) No amendment to this Agreement shall be
effective unless approved in the manner required by the 1940 Act and the rules
thereunder or in accordance with exemptive or other relief granted by the SEC or
its staff.
(c) This Agreement may be terminated by the
Investment Manager or the Trust at any time, without the payment of a penalty,
on written notice to the Sub-Adviser of the Investment Manager’s or the Trust’s
intention to do so, in the case of the Trust pursuant to action by the Board or
pursuant to the vote of a majority of the outstanding voting securities of the
Fund. The Sub-Adviser may terminate this Agreement at any time, without the
payment of a penalty, on sixty (60) days’ written notice to the Investment
Manager and the Trust of its intention to do so. Upon termination of this
Agreement, the obligations of all the parties hereunder shall cease and
terminate as of the date of such termination, except for (i) any obligation to
respond for a breach of this Agreement committed prior to such termination, (ii)
the obligation of the Investment Manager to pay to the Sub-Adviser the fee
provided in Paragraph 4 hereof, prorated to the date of termination, and (iii)
any indemnification obligation provided in Paragraph 7 hereof. This Agreement
shall automatically terminate in the event of its assignment. This Agreement
shall automatically terminate upon the termination of the Investment Management
Agreement.
9. Any information and advice furnished by any
party to this Agreement to the other party or parties, including material
non-public information with respect to the Fund (which includes the portfolio
holdings of the Fund), shall be treated as confidential and shall not be
disclosed to third parties without the consent of the other party hereto except
as required by law, rule or regulation. Notwithstanding the foregoing,
information shall not be subject to such confidentiality obligations if it:
| (i) | is already known to the receiving party at the time it is obtained; | ||
| (ii) | is or becomes publicly known or available through no wrongful act of the receiving party; | ||
| (iii) | is rightfully received from a third party who, to the best of the receiving party's knowledge, is not under a duty of confidentiality; | ||
| (iv) | is released by the protected party to a third party without restriction; | ||
| (v) | is required to be disclosed by the receiving party pursuant to a requirement of a court order, subpoena, governmental or regulatory agency or law (provided the receiving party will provide the other party written notice of such requirement, to the extent such notice is permitted); | ||
| (vi) | is relevant to the defense of any claim or cause of action asserted against the receiving party; or | ||
| (vii) | has been or is independently developed or obtained by the receiving party. | ||
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The Sub-Adviser shall
not disclose any “nonpublic personal information” (as such term is defined in
Regulation S-P, including any amendments thereto) pertaining to the customers of
the Trust or a client of the Investment Manager to any third party or use such
information other than for the purpose of providing the services contemplated by
this Agreement.
10. The Sub-Adviser represents, warrants and agrees that:
(a) The Sub-Adviser: (i) is registered as an
investment adviser under the Advisers Act and will continue to be so registered
for so long as this Agreement remains in effect; (ii) is not prohibited by the
1940 Act, the Advisers Act or other law, regulation or order from performing the
services contemplated by this Agreement; (iii) to the best of its knowledge, 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 regulatory or industry self-regulatory agency necessary to
be met in order to perform the services contemplated by this Agreement; (iv) has
the authority to enter into and perform the services contemplated by this
Agreement; and (v) will promptly notify the Investment Manager of the occurrence
of any event that would disqualify the Sub-Adviser from serving as an investment
adviser of an investment company pursuant to Section 9(a) of the 1940 Act or
otherwise. The Sub-Adviser will also promptly notify the Fund and the Investment
Manager if it 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.
(b) The Sub-Adviser has adopted policies and
procedures and a written code of ethics complying with the requirements of Rule
17j-1 under the 1940 Act and Rule 204A-1 under the Advisers Act, and will
provide the Investment Manager and the Board with copies of such policies and
procedures and code of ethics, together with evidence of its adoption. In
accordance with the requirements of Rule 17j-1, the Sub-Adviser shall certify to
the Investment Manager that the Sub-Adviser has complied in all material
respects with the requirements of Rule 17j-1 during the previous year and that
there has been no material violation of the Sub-Adviser’s code of ethics
relating to the services the Sub-Adviser performs under this Agreement or, if
such a material violation has occurred, that appropriate action was taken in
response to such violation. Upon the written request of the Investment Manager,
the Sub-Adviser shall provide to the Investment Manager, its employees or its
agents all information required by Rule 17j-1(c)(1) relating to the approval by
the Fund's Board of Trustees of the Sub-Adviser’s code of ethics relating to the
services the Sub-Adviser performs under this Agreement.
(c) The Sub-Adviser has provided the Trust and
the Investment Manager with a copy of its Form ADV at least forty-eight (48)
hours prior to execution of this Agreement, which as of the date of this
Agreement is its Form ADV as most recently filed with the SEC and promptly will
furnish a copy of all amendments to the Trust and the Investment Manager at
least annually. Such amendments shall reflect all changes in the Sub-Adviser’s
organizational structure, professional staff or other significant developments
affecting the Sub-Adviser, as required by the Advisers Act.
(d) The Sub-Adviser will notify the Trust and
the Investment Manager of any assignment of this Agreement or change of control
of the Sub-Adviser, as applicable, and any changes in the key personnel who are
the portfolio manager(s) of the Managed Portion prior to or promptly after such
change. The Sub-Adviser agrees to bear all reasonable expenses of the Fund, if
any, arising out of an assignment or change in control of the Sub-Adviser. In
the event that there is a proposed change in control of the Sub-Adviser that
would act to terminate this Agreement, and if a vote of shareholders to approve
continuation of this Agreement is at that time deemed by counsel to the Trust to
be required by the 1940 Act or any rule or regulation thereunder, the
Sub-Adviser agrees to assume all reasonable costs associated with soliciting
shareholders of the Fund to approve continuation of this Agreement. Such
expenses include the costs of preparation and mailing of a proxy statement, and
of soliciting proxies. In the
event that such proposed change in control of the Sub-Adviser shall occur
following either: (i) receipt by the Investment Manager and the Trust of an
exemptive order issued by the SEC with respect to the appointment of
sub-advisers absent shareholder approval, or (ii) the adoption of proposed Rule
15a-5 under the 1940 Act, the Sub-Adviser agrees to assume all reasonable costs
and expenses (including the costs of mailing) associated with the preparation of
a statement, required by the exemptive order or Rule 15a-5, containing all
information that would be included in a proxy statement (an “Information
Statement”). In addition, if the Sub-Adviser shall resign, the Sub-Adviser
agrees to assume all reasonable costs and expenses (including the costs of
mailing) associated with the preparation of a proxy statement and soliciting
materials or an Information Statement, as applicable.
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(e) The Sub-Adviser agrees to maintain an
appropriate level of errors and omissions or professional liability insurance
coverage.
(f) The Sub-Adviser has implemented policies
and procedures that will prevent the disclosure by the Sub-Adviser, its
employees or agents of the Fund’s portfolio holdings to any person or entity
other than the Investment Manager, the Trust’s custodian, or other persons
expressly designated by the Investment Manager.
11. This Agreement shall extend to and bind the successors of the parties
hereto.
12. 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.
13. All written notices,
requests or other communications to any party hereunder shall be given to the
following addresses and telecopy numbers, or such other address and telecopy
number communicated to the other parties from time to time:
| If to the Sub-Adviser: | [ ] | ||
| If to the Fund: | Xxxxxxxx X. Xxxxx | ||
| 0000 Xxxxxx Xxxxxx | |||
| Xxxxxxxxxxxx, XX 00000; | |||
| with a copy to General Counsel at same address | |||
| If to the Investment Manager: | Xxxxxxx X. Xxxxx | ||
| 0000 Xxxxxx Xxxxxx | |||
| Xxxxxxxxxxxx, XX 00000; | |||
| with a copy to General Counsel at same address | |||
14. For the purposes of this Agreement, the terms “vote of a majority of
the outstanding voting securities,” “interested person,” “affiliated person,”
and “assignment” shall have the meanings given them in the 1940 Act.
9
IN WITNESS
WHEREOF, the parties
hereto have caused this Agreement to be signed by their duly authorized officers
and duly attested as of the _____ day of __________, 2009.
| [NAME OF SUB-ADVISER] | DELAWARE MANAGEMENT COMPANY, | |||
| a series of DELAWARE MANAGEMENT | ||||
| BUSINESS TRUST | ||||
| By: | By: | |||
| Name: | Name: | |||
| Title: | Title: | |||
| Attest: | Attest: | |||
| Agreed to and accepted as of the day and year first above written: | ||||
| OPTIMUM FUND TRUST | ||||
| on behalf of [Name of Fund] | ||||
| By: | ||||
| Attest: | ||||
10
FEE SCHEDULE
______________
______________
The compensation
payable to Sub-Adviser for its services hereunder, pursuant to Paragraph 4 of
the Sub-Advisory Agreement, shall be calculated and paid as follows in regards
to [Name of Fund]:
The total fee will be
the sum of the following percentages (on an annual basis) of the average daily
net assets within the Managed Portion(s) sub-advised by Sub-Adviser:
[____% (___ basis points) of the first $____
within the Managed Portion(s)
____% (___ basis points) of the next $____ within the Managed Portion(s)
____% (___ basis points) of all assets above $____ within the Managed Portion(s)]
____% (___ basis points) of the next $____ within the Managed Portion(s)
____% (___ basis points) of all assets above $____ within the Managed Portion(s)]
The fee shall be
payable on the Managed Portion’s average daily net assets monthly to the
Sub-Adviser on or before the tenth (10th) day of the next succeeding calendar
month. If this Agreement becomes effective or terminates before the end of any
month, the sub-advisory fee for the period from the effective date to the end of
such month or from the beginning of such month to the date of termination, as
the case may be, shall be prorated according to the proration which such period
bears to the full month in which such effectiveness or termination occurs. Each
month, the Investment Manager will provide the Sub-Adviser with a worksheet
accompanying payment of the sub-advisory fee that sets forth the computation of
such sub-advisory fee.
11
