Exhibit No. EX-99.d.6
SUB-ADVISORY AGREEMENT
AGREEMENT made by and between DELAWARE MANAGEMENT COMPANY, a series of
DELAWARE MANAGEMENT BUSINESS TRUST (the "Investment Manager") and THE XXXXXX
GROUP, INC. (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, OPTIMUM SMALL CAP VALUE 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.
(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.
(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.
(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.
(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.
(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.
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, provided,
however, that routine regulatory examinations shall not be required to be
reported by this provision.
(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.
(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: Xxxxxxx X. Xxxxxx
President, COO
The Xxxxxx Group, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
If to the Fund: Xxxx X.X. Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000;
with a copy to General Counsel
at same address
If to the Investment Manager: Xxxx Xxxxxxxx
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers and duly attested as of the 21st day
of December, 2005.
THE XXXXXX GROUP, INC. DELAWARE MANAGEMENT COMPANY,
a series of DELAWARE MANAGEMENT
BUSINESS TRUST
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. X'Xxxxxx
Name: Name: Xxxxx X. X'Xxxxxx
Title: Title: Sr. Vice President
Attest: /s/ Xxxxx X. Xxxx Attest: /s/ X.X. Xxxxxxxxxx
Agreed to and accepted as of the day and year first above written:
OPTIMUM FUND TRUST
on behalf of Optimum Small Cap Value Fund
By: /s/ Xxxx C.E. Xxxxxxxx
XXXX X.X. XXXXXXXX
PRESIDENT
Attest: /s/ Xxxxxxx X'Xxxxxx
SCHEDULE A
TO
SUB-ADVISORY AGREEMENT
______________
FEE SCHEDULE
______________
The compensation payable to Sub-Adviser for its services to Paragraph 4 of the
Sub-Advisory Agreement shall be calculated and paid as follows in regards to
Optimum Small Cap Value Fund:
The total fee will be the sum of the following percentages (on an annual basis)
of the total assets within the Managed Portion(s) sub-advised by Sub-Adviser:
0.75% (75 basis points) of the first $25 million within the Managed Portion(s)
0.60% (60 basis points) of the next $25 million within the Managed Portion(s)
0.50% (50 basis points) of all assets above $50 million 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 investment management 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.
