Exhibit 22 (d-9)
SUB-ADVISORY AGREEMENT
PACIFIC CAPITAL INTERNATIONAL STOCK FUND
THIS AGREEMENT is made as of June 1, 2004 among Pacific
Capital Funds (the "Trust"), The Asset Management Group of Bank of Hawaii (the
"Adviser"), and Xxxxxxxxxx Global Investors, Inc. (the "Sub-Adviser").
WHEREAS, the Trust is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act");
WHEREAS, the Adviser has been appointed investment adviser to
the Trust's International Stock Fund (the "Fund");
WHEREAS, the Adviser desires to retain the Sub-Adviser to
assist it in the provision of a continuous investment program for the Fund and
the Sub-Adviser is willing to do so; and
WHEREAS, the Sub-Adviser is willing to furnish such services
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Adviser hereby appoints the Sub-Adviser to act as
the sub-adviser to the Fund as permitted by the Adviser's Advisory Agreement
with the Trust pertaining to the Fund. Intending to be legally bound, the
Sub-Adviser accepts such appointment and agrees to render the services herein
set forth for the compensation herein provided.
2. Sub-Advisory Services. Subject to the supervision of the Trust's
Board of Trustees and the Adviser, the Sub-Adviser will assist the Adviser in
providing a continuous investment program with respect to the Fund's portfolio,
including investment research and management with respect to all securities and
investments and cash equivalents in the Fund. The Sub-Adviser will provide
services under this Agreement in accordance with the Fund's investment
objectives, policies and restrictions as stated in the Fund's prospectus and
resolutions of the Trust's Board of Trustees applicable to the Fund, and as
amended from time-to-time.
Without limiting the generality of the foregoing, the
Sub-Adviser further agrees that it will, with respect to the Fund:
(a) determine from time to time what securities and other
investments will be purchased, retained or sold for
the Fund;
(b) place orders pursuant to its investment
determinations for the Fund either directly with the
issuer or with any broker or dealer;
(c) not purchase shares of the Fund for itself or for
accounts with respect to which it exercises sole
investment discretion in connection with such
transactions except as permitted by the Trust's Board
of Trustees or by federal, state and local law;
(d) manage the Fund's overall cash position;
(e) attend regular business and investment-related
meetings with the Trust's Board of Trustees and the
Adviser if requested to do so by the Trust and/or the
Adviser;
(f) ensure all Fund security valuations are reasonable
for purposes of determining whether such securities
should be purchased, owned or sold by the Fund;
(g) ensure that, if required, securities are identified
for proper segregation and collateralization;
(h) vote proxies on behalf of the Fund and provide proxy
voting information to the Fund and its agents in
relation to the Fund's annual filing on Form N-PX and
as otherwise reasonably requested by officers of the
Fund; and
(i) maintain books and records with respect to the
securities transactions for the Fund, furnish to the
Adviser and the Trust's Board of Trustees such
periodic and special reports as they may request with
respect to the Fund, and provide in advance to the
Adviser all reports to the Board of Trustees for
examination and review within a reasonable time prior
to the Trust's Board meetings.
3. Covenants by the Sub-Adviser. The Sub-Adviser agrees with respect to
the services provided to the Fund that it will:
(a) conform with all applicable rules and regulations of
the U.S. Securities and Exchange Commission;
(b) telecopy or provide by electronic means, trade
information to the Adviser on the first business day
following the day of the trade and cause broker
confirmations to be sent directly to the Adviser;
(c) treat confidentially and as proprietary information
of the Trust all records and other information
relative to the Trust and prior, present or potential
shareholders, and not use such records and
information for any purpose other than performance of
its responsibilities and duties hereunder (except
after prior notification to and approval in writing
by the Trust, which approval shall not be
unreasonably withheld and may not be withheld and
will be deemed granted where the Sub-Adviser may be
exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such
information by duly constituted authorities, or when
so requested by the Trust);
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(d) notify the Adviser and the Trust immediately upon
detection of (i) any material failure to manage the
Fund in accordance with its investment objectives and
policies or any applicable law; or (ii) any material
breach of any of the Fund's or the Sub-Adviser's
policies, guidelines or procedures. The Sub-Adviser
agrees to correct any such failure promptly and to
take any action that the Board may reasonably request
in connection with any such breach;
(e) upon request, provide the Adviser and/or the officers
of the Trust with supporting certifications which
pertain to services being provided by the Sub-Adviser
hereunder, in connection with any filings and
certifications made pursuant to the Xxxxxxxx-Xxxxx
Act of 2002; and
(f) promptly notify the Adviser and the Trust in the
event (i) the Sub-Adviser is served or otherwise
receives notice of any action, suit, proceeding,
inquiry or investigation, at law or in equity, before
or by any court, public board, or body, involving the
affairs of the Trust (excluding class action suits in
which the Fund is a member of the plaintiff class by
reason of the Fund's ownership of shares in the
defendant) or the compliance by the Sub-Adviser with
the federal or state securities laws or (ii) an
actual change in control of the Sub-Adviser resulting
in an "assignment" (as defined in the 1940 Act) has
occurred or is otherwise proposed to occur.
4. Services Not Exclusive. Except as provided herein, the services
furnished by the Sub-Adviser hereunder are deemed not to be exclusive, and
nothing in this Agreement shall (i) prevent the Sub-Adviser from acting as
investment adviser or manager for any other person or persons, including other
management investment companies, or (ii) limit or restrict the Sub-Adviser from
buying, selling or trading any securities or other investments (including any
securities or other investments which the Fund is eligible to buy) for its or
their own accounts or for the accounts of others for whom it or they may be
acting; provided, however, that the Sub-Adviser agrees that it will not
undertake any activities which, in its reasonable judgment, will adversely
affect the performance of its obligations to the Fund under this Agreement.
5. Portfolio Transactions. Investment decisions for the Fund shall be
made by the Sub-Adviser independently from those for any other investment
companies and accounts advised or managed by the Sub-Adviser. The Fund and such
investment companies and accounts may, however, invest in the same securities.
When a purchase or sale of the same security is made at substantially the same
time on behalf of the Fund and/or another investment company or account, the
transaction will be averaged as to price, and available investments allocated as
to amount, in a manner which the Sub-Adviser believes to be equitable to the
Fund and such other investment company or account. The Fund acknowledges that in
some instances, this investment procedure may adversely affect the price paid or
received by the Fund or the size of the position obtained or sold by the Fund.
To the extent permitted by law, the Sub-Adviser may aggregate the securities to
be sold or purchased for the Fund with those to be sold or purchased for other
investment companies or accounts in order to seek to obtain best execution. The
Fund and Adviser understand that the Sub-Adviser may give advice and take action
with respect to any of its other clients or for its own account which may differ
from the timing or nature of action taken by the Sub-Adviser, with respect to
the Fund.
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The Sub-Adviser shall place orders for the purchase and sale
of portfolio securities and shall solicit broker-dealers to execute transactions
in accordance with the Fund's policies and restrictions regarding brokerage
allocations. The Sub-Adviser shall place orders pursuant to its investment
determination for the Fund either directly with the issuer or with any broker or
dealer selected by the Sub-Adviser. In executing portfolio transactions and
selecting brokers or dealers, the Sub-Adviser shall use its reasonable best
efforts to seek the most favorable execution of orders, after taking into
account all factors the Sub-Adviser deems relevant, including the breadth of the
market in the security, the price of the security, the financial condition and
execution capability of the broker or dealer, and the reasonableness of the
commission, if any, both for the specific transaction and on a continuing basis.
Consistent with this obligation, the Sub-Adviser may, to the
extent permitted by law, purchase and sell portfolio securities from and to
brokers and dealers who provide brokerage and research services (within the
meaning of Section 28(e) of the Securities Exchange Act of 1934) to or for the
benefit of the Fund and/or other accounts over which the Sub-Adviser or any of
its affiliates exercises investment discretion. The Sub-Adviser is authorized to
pay to a broker or dealer who provides such brokerage and research services a
commission for executing a portfolio transaction for the Fund which is 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
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker or dealer, viewed in terms of either that
particular transaction or the Sub-Adviser's overall responsibilities to the
Fund. In no instance will portfolio securities be purchased from or sold to the
Sub-Adviser, or the Fund's principal underwriter, or any affiliated person
thereof except as permitted by the 1940 Act or the rules of the Securities and
Exchange Commission thereunder.
6. Books and Records. In compliance with the requirements of Rule 3la-3
under the 1940 Act, the Sub-Adviser hereby agrees that all records which it
maintains for the Trust are the property of the Trust and further agrees to
surrender promptly to the Trust any of such records upon the Trust's request.
The Sub-Adviser shall be entitled to maintain a copy of such records for its
files in order to meet its obligations under the 1940 Act. The Sub-Adviser
further agrees to preserve for the periods prescribed by Rule 31a-2 under the
1940 Act the records required to be maintained by Rule 31a-1 under the 1940 Act.
7. Expenses. During the term of this Agreement, the Sub-Adviser shall
pay all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other investments
(including brokerage commissions and other transaction charges, if any)
purchased for the Fund.
8. Compensation. For the services provided and the expenses assumed
with respect to the Fund pursuant to this Agreement, the Sub-Adviser will be
entitled to a fee, computed daily and payable quarterly directly from the Fund,
calculated at the annual rate of 0.60% on the first $75 million of the Fund's
average daily net assets and 0.35% on average daily net assets in excess of $75
million.
9. Standard of Care; Limitation of Liability. The Sub-Adviser shall
exercise due care and diligence and use the same skill and care in providing its
services hereunder as it uses in providing services to other investment
companies and accounts. Neither the Sub-Adviser, nor
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any of its directors, officers, agents or employees shall be liable or
responsible to the Trust, its shareholders or the Adviser for any error of
judgment, or any loss arising out of any investment, or for any other act or
omission in the performance by the Sub-Adviser of its duties under this
Agreement, except for liability resulting from bad faith, willful misconduct,
gross negligence or reckless disregard of its duties under this Agreement.
10. Reference to the Sub-Adviser. Neither the Adviser nor any of its
affiliates or agents shall make reference to or use the name of the Sub-Adviser
or any of its affiliates, or any of their clients, except references concerning
the identity of and services provided by the Sub-Adviser to the Fund, which
references shall not differ in substance from those included in the current
registration statement pertaining to the Fund, this Agreement and the Advisory
Agreement between the Adviser and the Trust with respect to the Fund, in any
advertising or promotional materials without the prior approval of the
Sub-Adviser, which approval shall not be unreasonably withheld or delayed.
11. Duration and Termination. Unless sooner terminated, this Agreement
shall continue for a period of two years from the date first set forth above,
and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually by the
Trust's Board of Trustees or vote of the lesser of (a) 67 % of the shares of the
Fund represented at a meeting if holders of more than 50% of the outstanding
shares of the Fund are present in person or by proxy, or (b) more than 50% of
the outstanding shares of the Fund, provided that in either event its
continuance also is approved by a majority of the Trust's Trustees who are not
"interested persons "(as defined in the 0000 Xxx) of any party to this Agreement
(the "Disinterested Trustees"), by vote cast in person at a meeting called for
the purpose of voting on such approval. This Agreement is terminable at any time
without penalty, with respect to the Fund, on 60 days' notice, by the Adviser,
the Sub-Adviser or the Trust's Board of Trustees or by vote of the lesser of (a)
67% of the shares of the Fund represented at a meeting if holders of more than
50% of the outstanding shares of the Fund are present in person or by proxy, or
(b) more than 50% of the outstanding shares of the Fund. This Agreement will
terminate automatically in the event of its assignment (as defined in the 1940
Act).
12. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No amendment of this Agreement shall be
effective until approved by the vote of (i) a majority of the outstanding voting
securities of the Fund, if required by the 1940 Act or the rules of the
Securities and Exchange Commission thereunder, and (ii) a majority of the
Disinterested Trustees cast in person at a meeting called for the purpose of
voting on such approval.
13. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be delivered or mailed:
To The Sub-Adviser at:
Xxxxxxxxxx Global Investors, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
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Attention : President
To the Adviser at:
The Asset Management Group of
Bank of Hawaii
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
To the Trust at:
c/o BISYS Fund Services
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
14. Miscellaneous. The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and shall be governed by the laws of the
Commonwealth of Massachusetts (without regard to conflict of law principles). If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
15. Counterparts. This Agreement may be executed 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.
16. Personal Liability. The names "Pacific Capital Funds" and
"Trustees" refer respectively to the Trust created and to the Trustees, as
trustees but not individually or personally, acting from time to time under an
Agreement and Declaration of Trust dated as of October 30, 1992, as amended, to
which reference is hereby made and a copy of which is on file at the office of
the Secretary of State of The Commonwealth of Massachusetts and elsewhere as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of "Pacific Capital Funds" entered into in the name or on
behalf hereof by any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, shareholders or representatives of the Trust personally, but bind only
the assets of the Trust and all persons dealing with any series of shares of the
Trust must look solely to the assets of the Trust belonging to such series for
the enforcement of any claims against the Trust.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
THE ASSET MANAGEMENT GROUP OF
BANK OF HAWAII
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx Xxxxx
Title: Exec. Vice President
XXXXXXXXXX GLOBAL INVESTORS, INC.
By: /s/ J. Xxxxxxxxxxx Xxxxxxx
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: Sr. V.P.
PACIFIC CAPITAL FUNDS
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President
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