SUB-ADVISORY AGREEMENT DIMENSIONAL FUND ADVISORS LP
EX99_DXX
DIMENSIONAL FUND ADVISORS LP
THIS SUB-ADVISORY AGREEMENT is made as of the 12th day of March, 2012, among Wilmington Funds, a Delaware business trust (the “Trust”), Wilmington Funds Management Corporation (the “Adviser”), a corporation organized under the laws of the state of Delaware and Dimensional Fund Advisors LP, a limited partnership organized under the laws of the state of Delaware (the “Sub-Adviser”).
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 offers for public sale distinct series of shares of beneficial interest; and
WHEREAS, the Wilmington Multi-Manager International Fund (the “Fund”) is a series of the Trust; and
WHEREAS, the Adviser acts as the investment adviser for the Fund pursuant to the terms of an Investment Advisory Contract between the Trust and the Adviser under which the Adviser is responsible for the coordination of investment of the Fund’s assets in portfolio securities; and
WHEREAS, the Adviser is authorized under the Investment Advisory Contract to delegate its investment responsibilities to one or more persons or companies;
NOW THEREFORE, in consideration of the promises and mutual covenants herein contained, the Trust, the Adviser and the Sub-Adviser agree as follows:
1. Appointment of Sub-Adviser. The Adviser and the Trust hereby appoint and employ the Sub-Adviser as a discretionary portfolio manager, on the terms and conditions set forth herein, of those assets of the Fund which the Adviser determines to assign to the Sub-Adviser (those assets being referred to as the “Fund Account”). The Adviser may, from time to time with notice to the Sub-Adviser, make additions to and withdrawals, including cash and cash equivalents, from the Fund Account.
2. Acceptance of Appointment. The Sub-Adviser accepts its appointment as a discretionary portfolio manager and agrees to use its professional judgment to make investment decisions for the Fund with respect to the investments of the Fund Account and to implement such decisions on a timely basis in accordance with the provisions of this Agreement.
3. Delivery of Documents. The Adviser has furnished the Sub-Adviser with copies properly certified or authenticated of each of the following and will promptly provide the Sub-Adviser with copies properly certified or authenticated of any amendment or supplement thereto:
a. The Fund’s Investment Advisory Contract;
b. The Trust’s most recent effective registration statement and financial statements as filed with the Securities and Exchange Commission;
c. The Trust’s Amended and Restated Agreement and Declaration of Trust and Amended and Restated By-Laws; and
d. Any policies, procedures or instructions adopted or approved by the Trust’s Board of Trustees relating to obligations and services provided by the Sub-Adviser.
4. Fund Management Services of the Sub-Adviser. The Sub-Adviser is hereby employed and authorized to select portfolio securities for investment by the Fund, to purchase and to sell securities for the Fund Account, and upon making any purchase or sale decision, to place orders for the execution of such portfolio transactions in accordance with Sections 6 and 7 hereof and Schedule A hereto (as amended from time to time). The Sub-Adviser will provide advice only with respect to the securities, cash and other investments held in the Fund Account and, in making recommendations with respect to the Fund Account, the Sub-Adviser will not consider any other securities, cash or other investments owned by the Fund. In providing portfolio management services to the Fund Account, the Sub-Adviser shall be subject to and shall conform to such investment restrictions as are set forth in the 1940 Act and the rules thereunder, the Internal Revenue Code, the supervision and control of the Board of Trustees of the Trust, such specific instructions as the Board of Trustees may adopt and communicate to the Sub-Adviser, the investment objective, policies and restrictions of the Trust applicable to the Fund furnished pursuant to Section 5 of this Agreement, the provisions of Schedule A and Schedule B hereto and other instructions communicated in writing to the Sub-Adviser by the Adviser. In addition, the Sub-Adviser is authorized to exchange, convert and otherwise respond to tender offers and other voluntary corporate actions. The Sub-Adviser may (a) delegate any of its duties under this Agreement to any of its affiliates and may provide information about the Trust, the Adviser and the Fund to any of its affiliates; and (b) delegate operational support services required under this Agreement to a third party service provider and may provide information about the Trust, the Adviser and the Fund to such third-party service provider, provided in each case, however, that the Sub-Adviser’s liability to the Trust and the Adviser will be unaffected by any such delegation. The Sub-Adviser is not authorized by the Trust to take any action, including the purchase or sale of securities for the Fund Account, in contravention of any restriction, limitation, objective, policy or instruction described in this Section. The Sub-Adviser shall maintain on behalf of the Trust the records listed in Schedule B hereto (as amended from time to time). At the Trust’s reasonable request, the Sub-Adviser will consult with the Trust or with the Adviser with respect to any decision made by it with respect to the investments of the Fund Account.
5. Investment Objective, Policies and Restrictions. The Trust will provide the Sub-Adviser with the statement of investment objective, policies and restrictions applicable to the Fund as contained in the Fund’s Prospectus and Statement of Additional Information, all amendments or supplements to the Prospectus and Statement of Additional Information, and any instructions adopted by the Board of Trustees supplemental thereto. The Trust agrees, on an ongoing basis, to notify the Sub-Adviser in writing of each change in the fundamental and non-fundamental investment policies of the Fund and will provide the Sub-Adviser with such further information concerning the investment objective, policies, restrictions and such other information applicable thereto as the Sub-Adviser may from time to time reasonably request for performance of its obligations under this Agreement. The Trust retains the right, on written notice to the Sub-Adviser or the Adviser, to modify any such objective, policies or restrictions in accordance with applicable laws, at any time.
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6. Transaction Procedures. All transactions will be consummated by payment to or delivery by the custodian designated by the Trust (the “Custodian”), or such depositories or agents as may be designated by the Custodian in writing, of all cash and/or securities due to or from the Fund Account, and the Sub-Adviser shall not have possession or custody thereof. The Sub-Adviser shall advise the Custodian and confirm in writing to the Trust and to the administrator designated by the Trust or any other designated agent of the Trust, all investment orders for the Fund Account placed by it with brokers and dealers at the time and in the manner set forth in Schedule B hereto (as amended from time to time). The Trust and the Sub-Adviser shall issue to the Custodian such instructions as may be appropriate in connection with the settlement of any transaction initiated by the Sub-Adviser. The Trust shall be responsible for all custodial arrangements and the payment of all custodial charges and fees, and, upon giving proper instructions to the Custodian, the Sub-Adviser shall have no responsibility or liability with respect to custodial arrangements or the acts, omissions or other conduct of the Custodian, except that it shall be the responsibility of the Sub-Adviser to take appropriate action if the Custodian fails to confirm in writing proper execution of the instructions.
7. Allocation of Brokerage. The Sub-Adviser shall have authority and discretion to select brokers and dealers (including brokers that may be affiliates of the Adviser or Sub-Adviser) to execute portfolio transactions initiated by the Sub-Adviser.
a. In executing portfolio transactions, the Sub-Adviser will give primary consideration to securing best execution. Consistent with this policy, the Sub-Adviser may consider the financial responsibility, research and investment information and other services provided by brokers or dealers who may effect or be a party to any such transaction or other transactions to which other clients of the Adviser or Sub-Adviser may be a party. Without limiting the generality of the foregoing, the Sub-Adviser is authorized to cause the Fund Account to pay brokerage commissions which may be in excess of the lowest rates available to brokers who execute transactions for the Fund Account or who otherwise provide brokerage and research services utilized by the Sub-Adviser, provided that the Sub-Adviser determines in good faith that the amount of each such commission paid to a broker is reasonable in relation to the value of the brokerage and research services provided by such broker viewed in terms of either the particular transaction to which the commission relates or the Sub-Adviser’s overall responsibilities with respect to accounts as to which the Sub-Adviser exercises investment discretion.
b. The Sub-Adviser agrees that it will not execute any portfolio transactions for the Fund Account with a broker or dealer which is (i) an affiliated person of the Trust, the Adviser or any sub-adviser for any Fund of the Trust; (ii) a principal underwriter of the Fund’s shares; or (iii) an affiliated person of such an affiliated person or principal underwriter, unless such transactions are (x) exempt under Rules 10f-3(b) or 17a-10, (y) executed in accordance with Rule 17e-l of the 1940 Act and the Trust’s Rule 17e-l procedures, or (z) executed in accordance with Rule 10f-3(c) of the 1940 Act and the Trust’s Rule 10f-3(c) procedures. The Adviser agrees that it will provide the Sub-Adviser with a list of such affiliated brokers and dealers; and
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c. The Sub-Adviser acknowledges and agrees that in connection with the exemptions provided under Rules 10f-3(b), 12d3-l, and 17a-10 under the 1940 Act, the Sub-Adviser (i) will not consult with any other sub-adviser of the Fund, which is advising the Fund, concerning the Sub-Adviser or its affiliated persons’ transactions with the Fund in securities or other assets of the Fund, and (ii) will be limited to providing investment advice with respect to the Fund Account.
d. On occasions when the Sub-Adviser deems the purchase or sale of a security to be in the best interest of the Fund Account as well as other clients of the Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be sold or purchased in order to obtain the best price and execution. In such event, allocation of the securities so purchased or sold, as well as expenses incurred in the transaction, will be made by the Sub-Adviser in a manner it considers to be equitable and consistent with its fiduciary obligations to the Trust in respect of the Fund and to such other clients.
e. Consistent with its fiduciary obligations to the Trust in respect of the Fund and the requirements of best price and execution, the Sub-Adviser may, under certain circumstances, arrange to have purchase and sale transactions effected directly between the Fund Account and another account managed by the Sub-Adviser (“cross transactions”). The Sub-Adviser will effect cross transactions in accordance with applicable law and the Trust’s procedures adopted under Rule 17a-7 under the 1940 Act, which procedures the Adviser agrees to provide to the Sub-Adviser.
8. Proxies. Except as otherwise agreed in writing by the parties, the Adviser will vote all proxies solicited by or with respect to issuers of securities in which the assets of the Fund Account may be invested from time to time. At the request of the Adviser, the Sub-Adviser shall provide the Adviser with its recommendations as to voting of such proxies.
9. Other Legal Actions. The Sub-Adviser shall not advise or act for the Fund, the Trust or the Adviser in any legal proceedings, including bankruptcies or class actions, involving securities held or previously held by the Fund Account or the issuers of such securities (“Legal Proceedings”).
10. Reports to the Sub-Adviser. The Trust will provide the Sub-Adviser with such periodic reports concerning the status of the Fund Account as the Sub-Adviser may reasonably request.
11. Fees for Services. For the services to be provided hereunder, the Fund shall pay the Sub-Adviser out of the assets of the Fund a sub-advisory fee calculated at the annual rates listed on the attached Schedule C. The fee shall be payable monthly as soon as practicable after the last day of each month based on the Fund Account’s average daily net assets.
12. Other Investment Activities of the Sub-Adviser. The Trust acknowledges that the Sub-Adviser or one or more of its affiliated persons may have investment responsibilities or render investment advice to or perform other investment advisory services for other individuals or entities and that the Sub-Adviser, its affiliated persons or any of its or their directors, officers,
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agents or employees may buy, sell or trade in any securities for its or their own respective accounts (“Affiliated Accounts”). The Trust agrees that the Sub-Adviser or its affiliated persons may give advice or exercise investment responsibility and take such other action with respect to other Affiliated Accounts which may differ from the advice given or the timing or nature of action taken with respect to the Fund Account, provided that the Sub-Adviser acts in good faith, and provided further, that it is the Sub-Adviser’s policy to allocate, within its reasonable discretion, investment opportunities to the Fund Account over a period of time on a fair and equitable basis relative to the Affiliated Accounts, taking into account the investment objective and policies of the Fund and any specific investment restrictions applicable thereto. The Trust acknowledges that one or more of the Affiliated Accounts may at any time hold, acquire, increase, decrease, dispose of or otherwise deal with positions in investments in which the Fund Account may have an interest from time to time, whether in transactions which involve the Fund Account or otherwise. The Sub-Adviser shall have no obligation to acquire for the Fund Account a position in any investment which any Affiliated Account may acquire, and the Trust shall have no first refusal, co-investment or other rights in respect of any such investment, either for the Fund Account or otherwise.
13. Certificate of Authority. The Trust, the Adviser and the Sub-Adviser shall furnish to each other from time to time certified copies of the resolutions of their Boards of Trustees/Directors or executive committees, as the case may be, evidencing the authority of officers and employees who are authorized to act on behalf of the Trust, a Fund Account, the Adviser and/or the Sub-Adviser.
14. Limitation of Liability. The Sub-Adviser shall not be liable for any action taken, omitted or suffered to be taken by it in its reasonable judgment, in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement, or in accordance with (or in the absence of) specific directions or instructions from the Trust or the Adviser, provided, however, that such acts or omissions shall not have resulted from the Sub-Adviser’s willful misfeasance, bad faith, gross negligence or a reckless disregard of duty. Except as may otherwise be required by law or as otherwise stated in this Agreement, the Sub-Adviser will not be liable for any act or failure to act by the Custodian, any broker or dealer to which the Sub-Adviser directs transactions for the Fund Account, or by any other third party including the Adviser. Nothing in this Section 14 shall be construed in a manner inconsistent with Section 17(i) of the 1940 Act.
15. Confidentiality. Subject to the duty of the Sub-Adviser, the Adviser and the Trust to comply with applicable law, including any demand of any judicial, regulatory or taxing authority having jurisdiction, and except as necessary to enable the Sub-Adviser to carry out its obligations under this Agreement or as otherwise agreed, the parties hereto shall treat as confidential all material non-public information pertaining to the Fund Account and the actions of the Sub-Adviser, the Adviser and the Trust in respect thereof. The Trust and the Adviser agree that the Sub-Adviser may from time to time, at its discretion, disclose to third parties that the Fund and the Trust are the Sub-Adviser’s clients, but the Sub-Adviser agrees that such disclosure will be limited to supplying the name of the Fund and the Trust and not the nature or extent of the Fund Account’s investments or any other information concerning the Fund or the Trust.
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16. Assignment. This Agreement shall terminate automatically in the event of its assignment. The Sub-Adviser shall notify the Trust and the Adviser in writing sufficiently in advance of any proposed change of control within the meaning of the 1940 Act to enable the Trust and the Adviser to take the steps necessary to enter into a new contract with the Sub-Adviser.
17. Acknowledgement of Disclosure. The Trust and the Adviser hereby acknowledge receipt of Part II of the Sub-Adviser’s Form ADV as required pursuant to Rule 204-3 under the Advisers Act prior to the date of this Agreement.
18. Representations, Warranties and Agreements of the Trust. The Trust represents, warrants and agrees that:
a. The Sub-Adviser has been duly appointed by the Board of Trustees of the Trust in accordance with the relevant requirements of the 1940 Act to provide investment services to the Fund Account as contemplated hereby.
b. The Trust will deliver to the Sub-Adviser a true and complete copy of its then current Prospectus and Statement of Additional Information as effective from time to time and such other documents or instruments governing the investment of the Fund Account and such other information as is necessary for the Sub-Adviser to carry out its obligations under this Agreement.
c. The Trust is currently in material compliance and shall at all times continue to so comply with the requirements imposed upon the Trust by applicable law and regulations.
19. Representations, Warranties and Agreements of the Adviser. The Adviser represents, warrants and agrees that:
a. The Adviser has been duly authorized by the Board of Trustees of the Trust to delegate to the Sub-Adviser the provision of investment services to the Fund Account as contemplated hereby.
b. The Adviser is currently in compliance and shall at all times continue to comply with the requirements imposed upon the Adviser by applicable law and regulations.
20. Representations. Warranties and Agreements of the Sub-Adviser. The Sub-Adviser represents, warrants and agrees that:
a. The Sub-Adviser is registered as an “investment adviser” under the Investment Advisers Act of 1940 (“Advisers Act”) or is a “bank” as defined in Section 202(a) (2) of the Advisers Act.
b. The Sub-Adviser will maintain, keep current and preserve on behalf of the Trust, in the manner required or permitted by the 1940 Act, the records identified in Schedule B. The Sub-Adviser agrees that such records (unless otherwise indicated on Schedule B) are the property of the Trust, and will be surrendered to the Trust promptly upon request. The Sub-Adviser
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will be entitled to retain copies (or originals if so indicated on Schedule B) of such records in its sole discretion. The Sub-Adviser agrees to keep confidential all records of the Trust and information relating to the Trust, unless the release of such records or information is otherwise consented to in writing by the Trust or the Adviser. The Trust and the Adviser agree that such consent shall not be unreasonably withheld and may not be withheld where the Sub-Adviser may be exposed to civil or criminal contempt proceedings or when required to divulge such information or records to duly constituted authorities.
c. The Sub-Adviser will complete such reports concerning purchases or sales of securities on behalf of the Fund Account as the Adviser or the Trust may from time to time require to ensure compliance with the 1940 Act, the Internal Revenue Code, applicable state securities laws and applicable statutes and regulations of foreign jurisdictions.
d. The Sub-Adviser has adopted a written code of ethics complying with the requirements of Rule 17j-l under the 1940 Act and Section 204A of the Advisers Act and has provided the Trust with a copy of the code of ethics and evidence of its adoption. Within forty-five (45) days of the end of the last calendar quarter of each year while this Agreement is in effect, the president or a vice president or general partner of the Sub-Adviser shall certify to the Trust that the Sub-Adviser has complied with the requirements of Rule 17j-l and Section 204A during the previous year and that there has been no material violation of the Sub-Adviser’s code of ethics or, if such a material violation has occurred, that appropriate action was taken in response to such violation. Upon the written request of the Trust, the Sub-Adviser shall permit the Trust, its employees or its agents to examine the reports required to be made to the Sub-Adviser by Rule 17j-1(d)(1).
e. The Sub-Adviser will promptly after updating, or filing with the Securities and Exchange Commission an amendment to, its Form ADV furnish a copy of such amendment to the Trust and the Adviser.
f. The Sub-Adviser will immediately notify the Trust and the Adviser of the occurrence of any event which would disqualify the Sub-Adviser from serving as an investment adviser of an investment company pursuant to Section 9 of the 1940 Act or otherwise. The Sub-Adviser will also immediately notify the Trust and the Adviser 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 Account.
g. To the extent required by the Advisers Act and interpretations thereunder, the Sub-Adviser will notify the Trust and the Adviser in the event of any change in the membership of the Sub-Adviser’s partnership within a reasonable time after such change.
21. Amendment. This Agreement may be amended at any time, but only by written agreement among the Sub-Adviser, the Adviser and the Trust, which amendment, other than amendments to Schedules A and B, is subject to the approval of the Board of Trustees and, to the extent required by the 1940 Act, the shareholders of the Fund in the manner required by the 1940 Act and the rules thereunder, subject to any applicable orders of exemption issued by the U.S. Securities and Exchange Commission.
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22. Effective Date: Term. This Agreement shall become effective on the date first written above and shall remain in force for a period of time of two years from such date, and from year to year thereafter but only so long as such continuance is specifically approved at least annually by the vote of a majority of the Trustees who are not interested persons of the Trust, the Adviser or the Sub-Adviser, cast in person at a meeting called for the purpose of voting on such approval, and by a vote of the Board of Trustees or of a majority of the outstanding voting securities of the Fund. The aforesaid requirement that this Agreement may be continued “annually” shall be construed in a manner consistent with the 1940 Act and the rules and regulations thereunder.
23. Termination.
a. This Agreement may be terminated by the Trust (by a vote of the Board of Trustees of the Trust or by a vote of a majority of the outstanding voting securities of the Fund), without the payment of any penalty, immediately upon written notice to the other parties hereto, in the event of a material breach of any provision thereof by the party so notified or otherwise by the Trust, upon sixty (60) days’ written notice to the other parties hereto, but any such termination shall not affect the obligations or liabilities of any party hereto to the others to the extent that such obligations or liabilities have accrued prior to or as of the time of termination. Any fees due to the Sub-Adviser will be prorated to date of termination.
b. This Agreement may also be terminated by the Adviser or the Sub-Adviser, without the payment of any penalty immediately upon written notice to the other parties hereto, in the event of a material breach of any provision thereof by the party so notified if such breach shall not have been cured within a 20-day period after notice of such breach or otherwise by the Adviser or the Sub-Adviser upon sixty (60) days’ written notice to the other parties hereto, but any such termination shall not affect the obligations or liabilities of any party hereto to the others to the extent that such obligations or liabilities have accrued prior to or as of the time of termination. Any fees due to the Sub-Adviser will be prorated to date of termination.
24. Definitions. As used in this Agreement, the terms “affiliated person,” “assignment,” “control,” “interested person,” “principal underwriter” and “vote of a majority of the outstanding voting securities” shall have the meanings set forth in the 1940 Act and the rules and regulations thereunder, subject to any applicable orders of exemption issued by the U.S. Securities and Exchange Commission.
25. Notice. Any notice under this Agreement shall be given in writing addressed and delivered or mailed, postage prepaid, to the other parties to this Agreement at their principal place of business.
26. Severability. 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.
27. Construction. Headings used in this Agreement are for convenience only and shall not affect the construction or interpretation of any of its provisions.
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28. Governing Law. To the extent that state law is not preempted by the provisions of any law of the United States heretofore or hereafter enacted, as the same may be amended from time to time, this Agreement shall be administered, construed and enforced according to the laws of the State of Delaware.
29. Entire Agreement. This Agreement and the Schedules attached hereto collectively embody the entire agreement and understanding between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, as of the day and year first written above.
| WILMINGTON FUNDS, on behalf of the Wilmington Multi-Manager International Fund | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Chief Operating Officer |
| DIMENSIONAL FUND ADVISORS LP | ||
| By: | Dimensional Holdings Inc., General Partner | |
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Vice President | |
| WILMINGTON FUNDS MANAGEMENT CORPORATION | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | President |
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SCHEDULE A
OPERATING PROCEDURES
From time to time the Adviser shall issue written Operating Procedures which shall govern reporting of transactions and other matters so as to facilitate (i) the monitoring of the Fund’s compliance with the restrictions and limitations applicable to the operations of a registered investment company and (ii) the preparation of reports to the Board of Trustees, regulatory authorities and shareholders.
SUBSTANTIVE LIMITATIONS
| A. | The Sub-Adviser will manage the Fund Account as if the Fund Account were a registered investment company subject to the investment objective, policies and limitations applicable to the Fund stated in the Trust’s Prospectus and Statement of Additional Information, as from time to time in effect, included in the Trust’s registration statement or a supplement thereto under the Securities Act of 1933 and the Investment Company Act of 1940 (the “1940 Act”), as each may be amended from time to time; provided, however, that if a more stringent restriction or limitation than any of the foregoing is stated in Section B of this Schedule, the more stringent restriction or limitation shall apply to the Fund Account. |
| B. | The Sub-Adviser shall not, without the written approval of the Adviser, on behalf of the Fund Account: |
| 1. | purchase securities of any issuer if such purchase would cause more than 10% of the voting securities of such issuer to be held in the Fund Account (1940 Act Section 5(b)(1); IRC Section 851(b)(4)(a)(ii)); |
| 2. | purchase securities if such purchase would cause: |
| a. | more than 3% of the outstanding voting stock of any other investment company to be held in the Fund Account (1940 Act Section 12(d)(l)(A)(i), |
| b. | securities issued by any other investment company having an aggregate value in excess of 5% of the value of the total assets in the Fund Account to be held in the Fund Account (1940 Act Section 12(d)(l)(A)(ii)), |
| c. | securities issued by all other investment companies (other than Treasury Stock) having an aggregate value in excess of 10% of the value of the total assets of the Fund Account to be held in the Fund Account (1940 Act Section 12(d)(l)(A)(iii)), |
| d. | more than 10% of the outstanding voting stock of any registered closed-end investment company to be held in the Fund Account, and by any other investment company having as its investment adviser any of the Sub-Advisers, the Adviser, or any other investment adviser to the Fund (1940 Act Section 12(d)(1)(C)); |
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| 3. | purchase securities of any insurance company if such purchase would cause more than 10% of the outstanding voting securities of any insurance company to be held in the Fund Account (1940 Act Section 12(d)(2)); or |
| 4. | purchase securities of or any interest in any person who is a broker, a dealer, is engaged in the business of underwriting, is an investment adviser to an investment company or is a registered investment adviser under the Investment Advisers Act of 1940 unless |
| a. | such purchase is of a security of any issuer that, in its most recent fiscal year, derived 15% or less of its gross revenues from securities-related activities (1940 Act Rule 12d3-l(a)), or |
| b. | despite the fact that such purchase is of any security of any issuer that derived more than 15% of its gross revenues from securities-related activities: |
| (1) | immediately after the purchase of any equity security, the Fund Account would not own more than 5% of outstanding securities of that class of the issuer’s equity securities (1940 Act Rule 12d3-1(b)(1)); |
| (2) | immediately after the purchase of any debt security, the Fund Account would not own more than 10% of the outstanding principal amount of the issuer’s debt securities (1940 Act Rule 12d3-l(b)(2)); and |
| (3) | immediately after the purchase, not more than 5% of the value of the Fund Account’s total assets would be invested in the issuer’s securities (1940 Act Rule 12d3-l(b)(3)). |
| C. | The Sub-Adviser will manage the Fund Account so that no more than 10% of the gross income of the Fund Account is derived from any source other than dividends, interest, payments with respect to securities loans (as defined in IRC Section 512(a)(5)), and gains from the sale or other disposition of stock or securities (as defined in the 1940 Act Section 2(a)(36)) or foreign currencies, or other income (including, but not limited to, gains from options, futures, or forward contracts) derived with respect to the Fund’s business of investing in such stock, securities, or currencies (IRC Section 851(b)(2)). |
Dated: March , 2012
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SCHEDULE B
RECORD KEEPING REQUIREMENTS
Records To Be Maintained by the Sub-Adviser:
| A. | (Rule 31 a-l(b)(5) and (6)). A record of each brokerage order, and all other portfolio purchases and sales, given by the Sub-Adviser on behalf of the Fund Account for, or in connection with, the purchase or sale of securities, whether executed or unexecuted. Such records shall include: |
| 1. | the name of the broker; |
| 2. | the terms and conditions of the order and of any modification or cancellation thereof; |
| 3. | the time of entry or cancellation; |
| 4. | the price at which executed; |
| 5. | the time of receipt of a report of execution; and |
| 6. | the name of the person who placed the order on behalf of the Fund Account. |
| B. | (Rule 31a-l(b)(9)). A record for each fiscal quarter, completed within ten (10) days after the end of the quarter, showing specifically the basis or bases (e.g. execution ability, execution and research) upon which the allocation of orders for the purchase and sale of portfolio securities to named brokers or dealers was effected, and the division of brokerage commissions or other compensation on such purchase and sale orders. Such record: |
| 1. | shall include the consideration given to: |
| a. | the sale of shares of the Fund by brokers or dealers; |
| b. | the supplying of services or benefits by brokers or dealers to: |
| (1) | the Trust, |
| (2) | the Adviser, |
| (3) | the Sub-Adviser, and |
| (4) | any person other than the foregoing; and |
| c. | any other consideration other than the technical qualifications of the brokers and dealers as such; |
| 2. | shall show the nature of the services or benefits made available; |
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| 3. | shall describe in detail the application of any general or specific formula or other determinant used in arriving at such allocation of purchase and sale orders and such division of brokerage commissions or other compensation; and |
| 4. | shall show the name of the person responsible for making the determination of such allocation and such division of brokerage commissions or other compensation. |
| C. | (Rule 3la-l(b)(10)). A record in the form of an appropriate memorandum identifying the person or persons, committees or groups authorizing the purchase or sale of portfolio securities. Where an authorization is made by a committee or group, a record shall be kept of the names of its members who participate in the authorization. There shall be retained as part of this record: any memorandum, recommendation or instruction supporting or authorizing the purchase or sale of portfolio securities and such other information as is appropriate to support the authorization. However, any records that relate to client accounts in addition to the Fund Account shall be and remain the property of the Sub-Adviser, and the Trust shall be entitled to receive certified copies rather than originals of any such records relating to securities held or previously held by the Fund Account, redacted only to maintain the confidentiality of the Sub-Adviser’s other clients. Minutes of any Investment Committee meetings shall not be included under this requirement unless required by applicable law or regulation, as determined by the SEC staff or Fund counsel and to the extent so determined shall include only the relevant excerpts necessary to comply with the applicable law or regulation. |
| D. | (Rule 31a-1(f)). Such accounts, books and other documents as are required to be maintained by registered investment advisers by rule adopted under Section 204 of the Investment Advisers Act of 1940, to the extent such records are necessary or appropriate to record the Sub-Adviser’s transactions with respect to the Fund Account. However, such records shall be and remain the property of the Sub-Adviser, and the Trust shall be entitled to receive certified copies of such records. |
Dated: March , 2012
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SCHEDULE C
FEE SCHEDULE
For the services to be provided to the Fund pursuant to the attached Sub-Advisory Agreement, the Trust shall pay the Sub-Adviser out of the assets of the Fund an annual fee in accordance with the following formula:
0.45% on the first $50 million; and
0.30% on assets over $50 million.
The fee shall be payable monthly as soon as practicable after the last day of each month based on the average daily net assets of the Fund Account. Solely for the purposes of calculating the breakpoint, the assets of the Fund Account will be combined with any assets of Wilmington International Equity Fund Select, L.P. that are being managed by the Sub-Adviser.
Dated: March , 2012
C-1
