MASTERS’ SELECT INTERNATIONAL FUND MASTERS’ SELECT FUNDS TRUST INVESTMENT SUB- ADVISORY AGREEMENT
MASTERS’
SELECT INTERNATIONAL FUND
MASTERS’
SELECT FUNDS TRUST
THIS INVESTMENT SUB-ADVISORY AGREEMENT
is made as of the____day of December 2007 by and between XXXXXX/XXXXXXX FUND
ADVISORS, LLC (the “Advisor”) and XXXXXXX CAPITAL MANAGEMENT, LLC (the
“Sub-Advisor”).
WITNESSETH:
WHEREAS,
the Advisor has been retained as the investment adviser to the Masters’ Select
International Fund (the “Fund”), a series of the Masters’ Select Funds Trust
(the “Trust”), an open-end management investment company, registered as such
under the Investment Company Act of 1940, as amended (the “Investment Company
Act”); and
WHEREAS,
the Advisor has been authorized by the Trust to retain one or more investment
advisers (each an “investment manager”) to serve as portfolio managers for a
specified portion of the Fund’s assets (the “Allocated Portion”);
and
WHEREAS,
the Sub-Advisor is registered as an investment adviser under the Investment
Advisers Act of 1940, as amended (the “Investment Advisers Act”), and is engaged
in the business of supplying investment advisory services as an independent
contractor; and
WHEREAS,
the Fund and the Advisor desire to retain the Sub-Advisor as an investment
manager to render portfolio advice and services to the Fund pursuant to the
terms and provisions of this Agreement, and the Sub-Advisor desires to furnish
said advice and services; and
WHEREAS,
the Trust and the Fund are third party beneficiaries of such
arrangements;
NOW,
THEREFORE, in consideration of the covenants and the mutual promises hereinafter
set forth, the parties to this Agreement, which shall include the Trust on
behalf of the Fund for purposes of the indemnification provisions of section 11
hereof, intending to be legally bound hereby, mutually agree as
follows:
1. Appointment
of Sub-Advisor.
(a) The
Advisor hereby employs the Sub-Advisor, and the Sub-Advisor hereby accepts such
employment, to render investment advice and related services with respect to the
Allocated Portion of the assets of the Fund for the period and on the terms set
forth in this Agreement, subject to the supervision and direction of the Advisor
and the Trust’s Board of Trustees.
(b) The
Sub-Advisor’s employment shall be solely with respect to an Allocated Portion of
the Fund’s assets, such Allocated Portion to be specified by the Advisor and
subject to periodic increases or decreases at the Advisor’s sole
discretion.
(c) Nature of
Fund. The Sub-Advisor and the Advisor both acknowledge that
the Fund is a mutual fund that operates as a series of an open-end series
investment company under the plenary authority of the Trust’s Board of Trustees.
In managing the Allocated Portion, the Sub-Advisor shall do so subject always to
the plenary authority of the Board of Trustees.
2. Duties of
Sub-Advisor.
(a) General
Duties. The Sub-Advisor shall act as one of several investment
managers to the Fund and shall invest the Sub-Advisor’s Allocated Portion of the
assets of the Fund in accordance with the investment objectives, policies and
restrictions of the Fund as set forth in the Fund’s and the Trust’s governing
documents (as provided to Sub-Advisor), including, without limitation, the
Trust’s Agreement and Declaration of Trust and By-Laws; the Fund’s prospectus,
statement of additional information and undertakings; and such other
limitations, policies and procedures as the Advisor or the Trustees of the Trust
may impose from time to time in writing to the Sub-Advisor. In providing such
services, the Sub-Advisor shall at all times adhere to the provisions and
restrictions contained in the federal securities laws, applicable state
securities laws, the Internal Revenue Code, and other applicable
law. Advisor shall provide to the Sub-Advisor such information with
respect to the Fund such that the Sub-Advisor will be able to maintain
compliance with applicable regulations, laws, policies, and restrictions with
respect to the Sub-Advisor’s Allocated Portion.
Without
limiting the generality of the foregoing, the Sub-Advisor shall: (i) furnish the
Fund with advice and recommendations with respect to the investment of the
Sub-Advisor’s Allocated Portion of the Fund’s assets; (ii) effect the purchase
and sale of portfolio securities for the Sub-Advisor’s Allocated Portion; (iii)
determine that portion of the Sub-Advisor’s Allocated Portion that will remain
uninvested, if any; (iv) manage and oversee the investments of the Sub-Advisor’s
Allocated Portion, subject to the ultimate supervision and direction of the
Trust’s Board of Trustees; (v) vote proxies as discussed in Section 2(c)
below, and take other actions with respect to the securities in the
Sub-Advisor’s Allocated Portion; (vi) maintain the books and records required to
be maintained with respect to the securities in the Sub-Advisor’s Allocated
Portion as discussed in Section 2(d) below; (vii) furnish reports, statements
and other data on the Allocated Portion and other matters related to
the investment of the Fund’ assets which the Advisor, the Trustees, or the
officers of the Trust may reasonably request; and (viii) render to the Trust’s
Board of Trustees such periodic and special reports with respect to the
Sub-Advisor’s Allocated Portion as the Board may reasonably
request.
(b) Brokerage. With
respect to the Sub-Advisor’s Allocated Portion, the Sub-Advisor shall be
responsible for broker-dealer selection and for negotiation of brokerage
commission rates. The Sub-Advisor may direct orders to an affiliated person of
the Sub-Advisor or to any other broker-dealer who has been identified by the
Advisor to the Sub-Advisor as an affiliate of any other investment manager
without prior authorization to use such affiliated broker or dealer by the
Trust’s Board of Trustees, provided that the Sub-Advisor does so in a manner
consistent with Sections 17(a) and 17(e) of the Investment Company Act, Rule
17e-1 thereunder and the Rule 17e-1 procedures adopted by the Trust (a copy of
which shall by provided by the Advisor). If any other brokers (not
including those that are affiliated persons of the Sub-Advisor) are deemed to be
affiliated persons of the Fund, Adviser shall provide a list of all such
broker-dealers to the Sub-Advisor. The Sub-Advisor’s primary
consideration in effecting a securities transaction will be best
execution. In selecting a broker-dealer to execute each particular
transaction, the Sub-Advisor may take into account, among other considerations,
the following: the best net price available; the reliability, integrity,
capability, and financial condition of the broker-dealer; the size of and
difficulty in executing the order; and the value of the expected contribution of
the broker-dealer to the investment performance of the Fund or other accounts
through research or brokerage services on a continuing basis. The
price to the Fund in any transaction may be less favorable than that available
from another broker-dealer if the difference is reasonably justified by other
aspects of the portfolio execution or research or brokerage services
offered.
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Subject
to such policies as the Advisor and the Board of Trustees of the Trust may
determine and provide to the Sub-Advisor, the Sub-Advisor shall not be deemed to
have acted unlawfully or to have breached any duty created by this Agreement or
otherwise solely by reason of its having caused the Fund to pay a broker or
dealer that provides (directly or indirectly) brokerage or research services to
the Sub-Advisor an amount of commission for effecting a portfolio transaction in
excess of the amount of commission another broker or dealer would have charged
for effecting that transaction, if the Sub-Advisor determines in good faith that
such amount of 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-Advisor’s overall
responsibilities with respect to the Fund. The Trust or the Advisor
may direct Sub-Advisor to seek to allocate the orders placed by it on behalf of
the Fund to brokers or dealers who also provide research or statistical
material, or other services, to the Trust or the Advisor, provided that the
Advisor determines that such direction is in accordance with applicable law and
other applicable restrictions on directed brokerage, including any reasonable
limitations that the Sub-Advisor may impose after receiving such a
direction. Such allocation shall be in such amounts and proportions
as the Sub-Advisor shall determine, and the Sub-Advisor shall report on such
allocations regularly to the Advisor and the Trust, indicating the
broker-dealers to whom such allocations have been made and the basis
therefor.
On
occasions when the Sub-Advisor deems the purchase or sale of a security to be in
the best interest of the Fund as well as other clients of the Sub-Advisor, the
Sub-Advisor, to the extent permitted by applicable laws and regulations, may
aggregate the securities to be so purchased or sold in order to obtain the most
favorable price or lower brokerage commissions and the most efficient
execution. In such event, Sub-Advisor will seek to ensure that the
allocation of the securities so purchased or sold, as well as the expenses
incurred in the transaction, will be effected in a manner it considers to be the
most equitable and consistent with its Portfolio Management and Trade Management
Policies and Procedures, as well as its fiduciary obligations to the Fund and to
such other clients.
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(c) Proxy Voting. The
Advisor hereby delegates to the Sub-Advisor, the Advisor’s discretionary
authority to exercise voting rights with respect to the securities and other
investments in the Allocated Portion. Sub-Advisor will seek to vote
such proxies consistent with its Proxy Voting Policies and
Procedures. The Sub-Advisor’s proxy voting policies shall comply with
any rules or regulations promulgated by the SEC. The Sub-Advisor shall maintain
and preserve a record, in an easily-accessible place for a period of not less
than three (3) years (or longer, if required by law), of the Sub-Advisor’s
voting procedures, of the Sub-Advisor’s actual votes, and such other information
relating to the voting of proxies as required for the Fund to comply with any
rules or regulations promulgated by the SEC. The Sub-Advisor, or a
designated service provider, shall supply updates of this record to the Advisor
or any authorized representative of the Advisor, or to the Fund on a quarterly
basis (or more frequently, if required by law). The Sub-Advisor shall
provide the Advisor and the Fund with a copy of its current Proxy Voting
Policies and Procedures. On written notice to the Sub-Advisor,
the Fund or the Advisor may retain for themselves the responsibility for voting
proxies.
(d) Books and Records. In
compliance with the requirements of Rule 31a-3 under the Investment Company Act,
the Sub-Advisor hereby agrees that all records which it maintains as Sub-Advisor
to the Fund are the property of the Fund and further agrees to surrender
promptly to the Fund any such records upon the Fund’s request; provided,
however, that Sub-Advisor shall be entitled to keep a copy of any such records
surrendered to the Fund. The Sub-Advisor further agrees to preserve
for the periods prescribed by Rule 31a-2 under the Investment Company Act the
records required to be maintained by a sub-adviser to a fund by Rule 31a-1 under
the Investment Company Act with respect to the Fund and to preserve the records
required to be maintained by a sub-adviser to a fund by Rule 204-2 under the
Advisers Act with respect to the Fund for the period specified in the
Rule.
(e) Custody. Title to all
investments shall be made in the name of the Fund, provided that for convenience
in buying, selling, and exchanging securities (stocks, bonds, commercial paper,
etc.), title to such securities may be held in the name of the Fund’s custodian
bank, or its nominee or as otherwise provided in the Fund’s custody
agreement. The Fund shall notify the Sub-Advisor of the identity of
its custodian bank and shall give the Sub-Advisor fifteen (15) days’ written
notice of any changes in such custody arrangements. Neither the
Sub-Advisor, nor any parent, subsidiary or related firm, shall take possession
of or handle any cash or securities, mortgages or deeds of trust, or other
indicia of ownership of the Fund’s investments, or otherwise act as custodian of
such investments. All cash and the indicia of ownership of all other
investments shall be held by the Fund’s custodian bank. The Fund shall instruct
its custodian bank to (a) carry out all investment instructions as may be
directed by the Sub-Advisor with respect thereto (which may be orally given if
confirmed in writing); and (b) provide the Sub-Advisor with all operational
information necessary for the Sub-Advisor to trade on behalf of the
Fund.
(f) (1) Consulting with Certain
Affiliated Sub-Advisors. The Sub-Advisor shall not consult
with any other person that the Advisor has identified to the Sub-Advisor as a
sub-adviser to the Fund (or a sub-adviser to any fund that is an “affiliated
person” of the Fund) concerning transactions for the Fund in securities or other
assets.
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(2) Transactions Among
Sub-Advisors of the Fund. In any case in which there are two
or more sub-advisors responsible for providing investment advice to different
portions of the Fund, the Sub-Advisor may enter into a transaction on behalf of
the Fund with another sub-advisor of the Fund (or an affiliated person of such
sub-advisor) in reliance on Rule 10f-3, Rule 17a-10 or Rule 12d3-1 under the
Investment Company Act.
3. Representations
of Sub-Advisor.
(a) Sub-Advisor
shall use its best judgment and efforts in rendering the advice and services to
the Fund as contemplated by this Agreement.
(b) Sub-Advisor
shall seek to maintain all licenses and registrations necessary to perform its
duties hereunder in good order, provided, however, that if Sub-Advisor fails to
maintain such licenses and registrations, Sub-Advisor shall notify the Advisor
as soon as practicable.
(c) Sub-Advisor
shall seek to conduct its operations at all times in conformance with the
Investment Advisers Act, the Investment Company Act and any other applicable
state and/or self-regulatory organization regulations.
(d) Sub-Advisor
shall be covered by errors and omissions insurance. The company
self-retention or deductible shall not exceed reasonable and customary
standards, and Sub-Advisor agrees to notify Advisor in the event the aggregate
coverage of such insurance in any annual period is reduced below
$10,000,000.
(e) The
Sub-Advisor represents and warrants to the Advisor and the Fund that (i) the
retention of the Sub-Advisor as contemplated by this Agreement is not restricted
by the Sub-Advisor’s governing documents; (ii) the execution, delivery and
performance of this Agreement does not violate any obligation by which the
Sub-Advisor or its property is bound, whether arising by contract, operation of
law or otherwise; and (iii) this Agreement has been duly authorized by
appropriate action of the Sub-Advisor and when executed and delivered by the
Sub-Advisor will be the legal, valid and binding obligation of the Sub-Advisor,
enforceable against the Sub-Advisor in accordance with its terms hereof,
subject, as to enforcement, to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally and to general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or
law).
4. Independent
Contractor. The Sub-Advisor
shall, for all purposes herein, be deemed to be an independent contractor, and
shall, unless otherwise expressly provided and authorized to do so, have no
authority to act for or represent the Trust, the Fund, or the Advisor in any
way, or in any way be deemed an agent for the Trust, the Fund, or the
Advisor. It is expressly understood and agreed that the services to
be rendered by the Sub-Advisor to the Fund under the provisions of this
Agreement are not to be deemed exclusive, and the Sub-Advisor 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.
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5. Sub-Advisor's
Personnel. The Sub-Advisor
shall, at its own expense, maintain such staff and employ or retain such
personnel and consult with such other persons as it shall from time to time
determine to be necessary to the performance of its obligations under this
Agreement. Without limiting the generality of the foregoing, the
staff and personnel of the Sub-Advisor shall be deemed to include persons
employed or retained by the Sub-Advisor to furnish information, including
semi-annual and annual commentaries, advice, and assistance as the Sub-Advisor,
the Advisor or the Trust's Board of Trustees may desire and reasonably
request.
6. Expenses.
(a) The
Sub-Advisor shall be responsible for providing the personnel, office space, and
equipment reasonably necessary to fulfill its obligations under this
Agreement.
(b) In the
event this Agreement is terminated by an assignment in the nature of a change of
control of Sub-Advisor as contemplated by Section 14(b) hereof, and the parties
agree to enter into a new agreement, the Sub-Advisor shall be responsible for
the costs of any special notifications to the Fund’s shareholders and any
special meetings of the Trust’s Board of Trustees if the notifications or
meetings were sent or convened for the primary benefit of the
Sub-Advisor.
(c) To
the extent the Sub-Advisor incurs any costs such as portfolio transaction costs
or other expenses which are an obligation of the Advisor or the Fund, the
Advisor or the Fund shall promptly reimburse the Sub-Advisor for such reasonable
costs and expenses.
7. Investment
Sub-Advisory Fee.
(a) The
Advisor shall pay to the Sub-Advisor, and the Sub-Advisor agrees to accept, as
full compensation for all investment advisory services furnished or provided to
the Fund pursuant to this Agreement, an annual sub-advisory fee based on the
Sub-Advisor’s Allocated Portion, as such Allocated Portion may be adjusted from
time to time. Such fee shall be paid at the annual rate of 0.50% of
the net assets of the Fund attributable to the Sub-Advisor’s Allocated Portion,
computed on the value of such net assets as of the close of business each
day.
(b) The
sub-advisory fee shall be calculated and accrued daily by the Fund accountant
and paid monthly, in arrears, by the Advisor to Sub-Advisor by the tenth
business day of each month.
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(c) The
initial fee under this Agreement shall be payable on the tenth business day of
the first month following the effective date of this Agreement and shall be
prorated as set forth below. If this Agreement is terminated prior to
the end of any month, the fee to the Sub-Advisor shall be prorated for the
portion of any month in which this Agreement is in effect which is not a
complete month according to the proportion which the number of calendar days in
the month during which the Agreement is in effect bears to the number of
calendar days in the month, and shall be payable within ten (10) days after the
date of termination.
8. No
Shorting; No Borrowing. The Sub-Advisor
represents that, pursuant to its Code of Ethics, no officer or employee of the
Sub-Adviser may take any position, long or short, in the shares of the
Fund. The Sub-Advisor agrees that neither it nor any of its officers
or employees shall borrow from the Fund or pledge or use Fund assets in
connection with any borrowing not directly for the Fund’s benefit.
9. Conflicts
with Trust’s Governing Documents and Applicable Laws. Nothing
herein contained shall be deemed to require the Trust or the Fund to take any
action contrary to the Trust’s Agreement and Declaration of Trust, By-Laws, or
any applicable statute or regulation, or to relieve or deprive the Board of
Trustees of the Trust of its responsibility for and control of the conduct of
the affairs of the Trust and the Fund. In this connection, the
Sub-Advisor acknowledges that the Advisor and the Trust’s Board of Trustees
retain ultimate plenary authority over the Fund, including the Allocated
Portion, and may take any and all actions necessary and reasonable to protect
the interests of shareholders.
10. Reports
and Access. The Sub-Advisor agrees to supply such information
to the Advisor and to permit such compliance inspections by the Advisor or the
Fund as shall be reasonably necessary to permit the Advisor or the Fund to
satisfy its obligations with respect to the Allocated Portion and respond to the
reasonable requests of the Trustees.
11. Standard
of Care, Liability and Indemnification.
(a) The
Sub-Advisor shall exercise reasonable care and prudence in fulfilling its
obligations under this Agreement.
(b) The
Sub-Advisor shall have responsibility for the accuracy and completeness (and
liability for the lack thereof) of any statements furnished by the Sub-Advisor
for use by the Advisor in the Fund’s offering materials (including the
prospectus, the statement of additional information, advertising and sales
materials) that pertain to the Sub-Advisor and the investment of the
Sub-Advisor’s Allocated Portion of the Fund. The Sub-Advisor shall
have no responsibility or liability with respect to other
disclosures.
(c) The
Sub-Advisor shall be liable to the Fund for any loss (including brokerage
charges) incurred by the Fund as a result of the Sub-Advisor’s negligence in
connection with any investment in the Allocated Portion in violation of Section
2 (a) and (b) above, provided, however, that the Sub-Advisor shall
not be liable under this Section 11(c) to the Advisor, the Trust, the Fund, or
any shareholder of the Fund for any matter relating to the investment
performance of the Allocated Portion.
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(d) Except
as otherwise provided in this Agreement, in the absence of willful misfeasance,
bad faith, gross negligence, or reckless disregard of the obligations or duties
hereunder on the part of the Sub-Advisor, the Sub-Advisor shall not be subject
to liability to the Advisor, the Trust, or the Fund or to any shareholder of the
Fund for any act 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 by the Fund.
(e) Except
as otherwise provided in this Agreement, including without limitation paragraphs
(c) and (d) above, each, party to this Agreement (as an “Indemnifying Party”),
including the Trust on behalf of the Fund, shall indemnify and hold harmless the
other party and the shareholders, directors, officers, and employees of the
other party (any such person, an “Indemnified Party”) against any loss,
liability, claim, damage, or expense (including the reasonable cost of
investigating and defending any alleged loss, liability, claim, damage, or
expense and reasonable counsel fees incurred in connection therewith) arising
out of the Indemnifying Party’s performance or non-performance of any duties
under this Agreement provided, however, that nothing herein shall be deemed to
protect any Indemnified Party against any liability to which such Indemnified
Party would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties under this Agreement.
If
indemnification is to be sought hereunder, then the Indemnified Party shall
promptly notify the Indemnifying Party of the assertion of any claim or the
commencement of any action or proceeding in respect thereof; provided, however,
that the failure so to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability that it may otherwise have to the
Indemnified Party provided such failure shall not affect in a material adverse
manner the position of the Indemnifying Party or the Indemnified Party with
respect to such claim. Following such notification, the Indemnifying
Party may elect in writing to assume the defense of such action or proceeding
and, upon such election, it shall not be liable for any legal costs incurred by
the Indemnified Party (other than reasonable costs of investigation previously
incurred) in connection therewith, unless (i) the Indemnifying Party has failed
to provide counsel reasonably satisfactory to the Indemnified Party in a timely
manner or (ii) counsel which has been provided by the Indemnifying Party
reasonably determines that its representation of the Indemnified Party would
present it with a conflict of interest.
The
provisions of this paragraph 11(e) shall not apply in any action where the
Indemnified Party is the party adverse, or one of the parties adverse, to the
other party.
(f) No
provision of this Agreement shall be construed to protect any Trustee or officer
of the Trust, or officer of the Advisor or the Sub-Advisor, from liability in
violation of Sections 17(h) and (i) of the Investment Company Act.
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12. Non-Exclusivity;
Trading for Sub-Advisor’s Own Account; Code of Ethics. The
Advisor’s employment of the Sub-Advisor is not an exclusive
arrangement. The Advisor anticipates that it will employ other
individuals or entities to furnish it with the services provided for herein.
Likewise, the Sub-Advisor may act as investment adviser for any other person,
and shall not in any way be limited or restricted from buying, selling, or
trading any securities for its or their own accounts or the accounts of others
for whom it or they may be acting, provided, however, that the Sub-Advisor
expressly represents that it will not undertake any activities that it knows or
should know will adversely affect the performance of its obligations to the Fund
under this Agreement; and provided further that the Sub-Advisor will adhere to a
code of ethics governing employee trading and trading for proprietary accounts
that conforms to the requirements of the Investment Company Act and the
Investment Advisers Act, a copy of which will be provided to the Board of
Trustees of the Trust.
The
Sub-Advisor will make such reports to the Advisor and the Fund as are required
by Rule 17j-1 and Rule 38a-1 under the Investment Company Act. The
Sub-Advisor agrees to provide the Advisor and the Fund with any information
reasonably required to satisfy requirements of the Fund’s compliance program,
code of ethics reporting, or disclosure requirements of the Xxxxxxxx-Xxxxx Act,
and any rules or regulations promulgated by the SEC. To the extent the
Sub-Advisor adopts or has adopted a separate code of ethics or amends or has
amended its code of ethics to comply with such rules or regulations, the
Sub-Advisor shall provide the Advisor with a copy of such code of ethics and any
amendments thereto.
13. Term
(a) This
Agreement shall become effective upon approval by the Board of Trustees of the
Trust and shall remain in effect for a period of two (2) years, unless sooner
terminated as hereinafter provided. This Agreement shall continue in
effect thereafter for additional periods not exceeding one (1) year so long as
such continuation is approved for the Fund at least annually by (i) the Board of
Trustees of the Trust or by the vote of a majority of the outstanding voting
securities of the Fund and (ii) the vote of a majority of the Trustees of the
Trust who are not parties to this Agreement nor interested persons thereof, cast
in person at a meeting called for the purpose of voting on such approval, and
(iii) the Advisor. The terms “majority of the outstanding voting
securities” and “interested persons” shall have the meanings as set forth in the
Investment Company Act.
(b) The
Fund and its distributor may use the Sub-Advisor’s trade name or any name
derived from the Sub-Advisor’s trade name, only in a manner consistent with the
nature of this Agreement for so long as this Agreement or any extension,
renewal, or amendment hereof remains in effect. Within sixty (60)
days from such time as this Agreement shall no longer be in effect, the Fund
shall cease to use such a name or any other name connected with
Sub-Advisor.
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14. Termination;
No Assignment.
(a) This
Agreement may be terminated at any time without payment of any penalty, by: the
Board of Trustees of the Trust or by vote of a majority of the outstanding
voting securities of the Fund, upon sixty (60) days’ written notice to the
Sub-Advisor and the Advisor. This Agreement also may be terminated at any time,
without the payment of any penalty, by the Advisor or the Sub-Advisor upon sixty
(60) days’ written notice to the Trust and the other party. In the
event of a termination, Sub-Advisor shall cooperate in the orderly transfer of
the Fund’s affairs and, at the request of the Board of Trustees, transfer any
and all books and records of the Fund maintained by Sub-Advisor on behalf of the
Fund. Sub-Advisor shall be entitled to keep a copy of any such books
and records.
(b) This
Agreement shall terminate automatically in the event of any transfer or
assignment thereof, as defined in the Investment Company Act.
15. Severability. If any provision
of this Agreement shall be held or made invalid by a court decision, statute or
rule, or shall be otherwise rendered invalid, the remainder of this Agreement
shall not be affected thereby.
16. Captions. The captions in
this Agreement are included for convenience of reference only and in no way
define or limit any of the provisions hereof or otherwise affect their
construction or effect.
17. Governing
Law. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
California without giving effect to the conflict of laws principles thereof;
provided that nothing herein shall be construed to preempt, or to be
inconsistent with, any federal law, regulation or rule, including the Investment
Company Act and the Investment Advisers Act and any rules and regulations
promulgated thereunder.
18. Certifications;
Disclosure Controls and Procedures. The Sub-Advisor acknowledges that, in
compliance with the Xxxxxxxx-Xxxxx Act, and the implementing regulations
promulgated thereunder, the Fund is required to make certain certifications and
has adopted disclosure controls and procedures. Compliance with
disclosure controls and procedures is primarily the responsibility of Advisor,
the Fund’s administrator, the Fund’s accountants, the custodian, and service
providers other than the Sub-Advisor. Nevertheless, to the extent
reasonably requested by the Advisor, the Sub-Advisor agrees to use its best
efforts to assist the Advisor and the Fund in complying with the Xxxxxxxx-Xxxxx
Act relating to matters such as any management discussion of fund performance
that is provided by Sub-Advisor. The Sub-Advisor agrees to undertake
reasonable efforts to inform the Fund of any material development related to the
Allocated Portion that the Sub-Advisor reasonably believes is materially
relevant to the Fund’s certification obligations under the Xxxxxxxx-Xxxxx
Act
19. Provision
of Certain Information by the Sub-Advisor. The Sub-Advisor will
promptly notify the Advisor in writing of the occurrence of any of the following
events:
(a) the
Sub-Advisor fails to be registered as investment adviser under the Advisers Act
or under the laws of any jurisdiction in which the Sub-Advisor is required to be
registered as investment adviser in order to perform its obligations under this
Agreement;
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(b) the
Sub-Advisor is served or otherwise receives official notification 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 Advisor or the
Fund;
(c) the
Sub-Advisor suffers financial impairment which materially interferes with its
ability to manage the Allocated Portion or otherwise fulfill its duties under
this Agreement;
(d) the
Sub-Advisor, its principal officers or its controlling stockholders have
knowledge that they are the subject of a government investigation or inquiry,
administrative proceeding or any other type of legal action which, under the
Investment Company Act, would make it ineligible to serve as an investment
adviser to an investment company;
(e) a
change in the Sub-Advisor’s portfolio management personnel materially involved
in the management of the Allocated Portion; or
(f) a
change in control or management of the Sub-Advisor that materially affects the
management of the Allocated Portion or may implicate Section 14
above.
20. Confidentiality. The
parties to this Agreement agree that all information and advice furnished by
either party to the other party shall be treated as confidential and that
neither party shall, directly or indirectly, permit their respective affiliates,
directors, trustees, officers, members, employees, or agents to, in any form or
by any means, use, disclose, or furnish to any person or entity, records or
information concerning the business of any of the other parties except as
necessary for the performance of duties under this Agreement or as required by
law, without prior written notice to and approval of the relevant other parties,
which approval shall not be unreasonably withheld by such other
parties.
21. Counterparts. This
Agreement may be executed in counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered, shall be
deemed an original and all of which counterparts shall constitute but one and
the same agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized officers, all on the day and year first above
written.
| XXXXXX/XXXXXXX FUND | XXXXXXX CAPITAL MANAGEMENT, | |
| ADVISORS, LLC | LLC | |
|
|
||
| By: | By: | |
| Name: Xxxx X. Xxxxxxxx | Name: | |
| Title: Chief Operating Officer | Title: | |
| As a Third Party Beneficiary, | ||
| MASTERS’ SELECT FUNDS TRUST | ||
| on behalf of | ||
| MASTERS’ SELECT INTERNATIONAL FUND | ||
| By: | ||
| Name: Xxxx X. Xxxxxxxx | ||
| Title: Treasurer |
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