Exhibit d(viii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
INDEPENDENCE ONE MUTUAL FUNDS
SUB-ADVISORY AGREEMENT
THIS AGREEMENT is made between Michigan National Bank, a national
banking association (hereinafter referred to as "Adviser") and Xxxxxxx Xxxxxxxx
Corporation, an Illinois corporation located in Chicago, Illinois (hereinafter
referred to as the "Sub-Adviser").
WITNESSETH:
That the parties hereto, intending to be legally bound, hereby agree as
follows:1. Notice of Advice: Sub-Adviser hereby agrees to furnish to Adviser in
its capacity as Investment adviser to the Independence One Small Cap Fund (the
"Fund"), a portfolio of the Independence One Mutual Funds ("Trust"), such
investment advice, statistical and other factual information, as may from time
to time be reasonably requested by Adviser for the Fund, which may be offered in
one or more classes of shares ( "Classes"). Sub-Adviser shall furnish such
advice and information to Adviser on a non-discretionary basis. Sub-Adviser
shall not have custody of any funds or securities of the Fund at any time. 2.
Representations of Sub-Adviser. Sub-Adviser hereby represents to Adviser that it
is duly registered as an investment adviser with (a) the United States
Securities and Exchange Commission pursuant to the Investment Advisers Act of
1940, and (b) any state authorities with which such registration necessary in
order to lawfully provide services pursuant to this Agreement. Sub-Adviser
hereby agrees to maintain such registrations in effect for so long as it
continues to provide services pursuant to this Agreement and to notify Adviser
immediately upon termination or revocation of any such registration during such
period. 3. Brokerage. Sub-Adviser may placed orders for the execution of
transactions with or through such brokers-dealers (including floor brokers) or
banks as Adviser may select. Sub-Adviser may suggest broker-dealers or banks to
Adviser; however, Adviser will choose the broker-dealer or banks through which
Sub-Adviser may place orders. Any accounts opened with such broker-dealers or
banks shall be in the name of the Fund.
4. Records and Confirms. Sub-Adviser will send Adviser a record of the
investments and positions of Fund as soon as reasonably possible after the end
of each quarterly period. Copies of confirmations of transactions executed for
the Fund will be sent by the broker-dealers executing the transactions promptly
to the custodian for the Fund and the Sub-Adviser, if the custodian is other
than the broker-dealer. Otherwise, copies of confirmations of transactions
executed will be sent by the broker-dealers executing the transactions to
Sub-Adviser and the Fund. Sub-Adviser does not assume responsibility for the
accuracy of information furnished by Adviser or any other party. 5. Voting.
Unless otherwise specifically agreed, Sub-Adviser will not be required to take
any action, or render any advice, with respect to the voting of securities held
by the Fund. 6. Confidentiality. All information and advice furnished by either
party hereto to the other shall be treated as confidential and shall not be
disclosed to third parties, unless generally known or otherwise publicly
available, and except as required by regulatory agencies or otherwise by law. 7.
Other Clients. Sub-Adviser acts as adviser to other clients and may give advice,
and take action, with respect to any of those which may differ from the advice
given, or the timing or nature of action taken, with respect to the Fund.
Sub-Adviser shall have no obligation to purchase or sell for the Fund, or to
recommend for purchase or sale by the Fund, any security which Sub-Adviser, its
principals, affiliates or employees may purchase or sell for themselves or for
any other clients. Except as otherwise required by law, Sub-Adviser shall not
make any information about the accounts of its clients available to Adviser or
the Fund. Adviser recognizes that transactions in a specific security or
securities may not be accomplished for all client accounts at the same time or
at the same price. In the performance of Sub-Adviser's services hereunder,
Sub-Adviser shall not be liable for any failure to recommend or effect any
purchase or sale, or other investment or trading strategy on the basis of any
information known to Sub-Adviser where the utilization of such information
might, in Sub-Adviser's opinion, constitute a violation of any federal or state
law, rules or regulations, or the breach of any fiduciary duty or confidential
relationship between Sub-Adviser and any other person or persons.
8. Adviser's Representations. Adviser represents that it has full authority to
grant Sub-Adviser the authority given to Sub-Adviser under this Agreement.9.
Fees. For its services under this Agreement, Sub-Adviser shall receive from
Adviser an annual fee ("the Sub-Advisory Fee"), as set forth on Exhibit A
attached hereto. Notwithstanding any other provision of this Agreement, the
Sub-Adviser may from time to time and for such periods as it deems appropriate,
reduce its compensation (and, if appropriate, assume expenses of the Fund or
Class of the Fund) to the extent that the Fund's expenses exceed such expense
limitation as the Sub-Adviser may, by notice to the Trust on behalf of the Fund,
voluntarily declare to be effective.10. Term. This Agreement shall begin for the
Fund on the date that the parties execute this Agreement relating to such Fund
and shall continue in effect for the Fund for two years from the date of its
execution and from year to year thereafter, subject to the provisions for
termination and all of the other terms and conditions hereof if: (a) such
continuation shall be specifically approved at least annually by the vote of a
majority of the Trustees of the Trust, including a majority of the Trustees who
are not parties to this Agreement or interested persons of any such party (other
than as Trustees of the Trust) cast in person at a meeting called for that
purpose; and (b) Adviser shall not have notified the Trust in writing at least
sixty (60) days prior to the anniversary date of this Agreement in any year
thereafter that it does not desire such continuation with respect to the
Fund.11. Termination. Notwithstanding any provision in this Agreement, it may be
terminated at any time without the payment of any penalty: (a) by the Trustees
of the Trust or by a vote of majority of the outstanding voting securities (as
defined in Section 2(a)(42) of the Investment Company Act of 1940 (the "Act"))
of the Fund on sixty (60) days written notice to Adviser; and (b) by Sub-Adviser
or Adviser upon sixty (60) days written notice to the other party to the
Agreement.12. Automatic Termination. This Agreement shall automatically
terminate:
(a) in the event of its assignment (as defined in the Act); or
(b) in the event of termination of the Investment Advisory
Contract between the Trust and Adviser ("Investment Advisory
Contract") for any reason whatsoever.
13. Limitation of Authority. Neither Adviser nor Sub-Adviser shall act as an
investment adviser (as such term is defined in the Act) to the Fund except as
provided herein and in the Investment Advisory contract between the Adviser and
the Fund or in such other manner as may be expressly agreed between Adviser and
Sub-Adviser. Provided, however, that if the Adviser or Sub-Adviser shall resign
prior to the end of any term of this Agreement or for any reason be unable or
unwilling to serve for a successive term which has been approved by the Trustees
of the Trust pursuant to the provisions of Paragraph 10 of this Agreement or
Paragraph 6 of the Investment Advisory Contract, the remaining party,
Sub-Adviser of Adviser as the case may be, shall not be prohibited from serving
as an investment advisor to such Fund by reason of the provisions of this
Paragraph 13.14. Notices. Notices regarding termination or other matters of this
Agreement or other matters shall be certified mail or overnight by a nationally
recognized courier and shall be deemed given when received at the addresses
specified below, or at such other address as a party to receive notice may
specify in a notice given in accordance with this provision. Sub-Adviser may
rely on any notice from any person reasonably believed to be genuine and
authorized. If to Sub-Adviser: If to Adviser: Xxxxxxx Xxxxxxxx Corporation
Michigan National Bank 000 Xxxxx XxXxxxx Xxxxxx 00000 Xxxxxxx Xxxx Xxxxx 0000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxx X.
Xxxxxxxxx, Xx. Attention: Xxx Xxxxxxx 15. Indemnification. (a) (i) In any
threatened, pending or completed action, suit or proceeding to which the
Sub-Adviser, was, is or is threatened to be made a party, in connection with or
relating to the services performed by the Sub-Adviser for the Adviser or the
Fund as contemplated herein, including, without limitation, any breach of any
representations, warranties or convenants made by the Adviser in this Agreement
or any failure by the Adviser to comply with the federal or any state securities
laws or the rules and regulations promulgated thereunder or any other federal or
state law, or any rule or regulation promulgated by a governmental agency or
self-regulatory organization, Adviser shall indemnify and hold harmless the
Sub-Adviser, against any loss, liability, damage, cost and expense (including
reasonable attorneys' and accountants' fees and disbursements) incurred or
suffered by the Sub-Adviser in connection with the investigation, defense or
settlement of any such action, suit or proceeding, only if the acts or omissions
of the Sub-Adviser, did not involve willful misfeasance, gross negligence, bad
faith or reckless disregard of its duties and obligations under this Agreement;
and (ii) In the event that the Sub-Adviser is made a party to any claim, dispute
or litigation or otherwise incurs any loss or expense as a result of or in
connection with the activities or claimed activities of Adviser or its partners,
officers, directors, employees, agents or affiliates unrelated to the
Sub-Adviser or the Sub-Adviser's business, Adviser shall indemnify, defend and
hold harmless the Sub-Adviser against any loss, liability, damage, cost and
expense (including, without limitation, reasonable attorneys' and accountants'
fees and disbursements to be paid as incurred) incurred in connection therewith.
As used is subparagraphs (i) through (ii) above, the term "Sub-Adviser" shall
include the Sub-Adviser' directors, officers, shareholders, employees, agents
and affiliates.(b) (i) In any threatened, pending or contemplated action, suit
or proceeding to which the Adviser, was is or is threatened to be made a party,
in connection with or relating to the services performed by the Sub-Adviser for
the Adviser or the Fund as contemplated herein, including, without limitation,
any breach of any representations, warranties or covenants made by Sub-Adviser
in this Agreement or any failure by Sub-Adviser to comply with the federal or
any state securities laws or the rules and regulations promulgated thereunder or
any other federal or state law, or any rule or regulation promulgated by any
governmental agency or self-regulatory organization, Sub-Adviser shall indemnify
and hold harmless the Adviser, against any loss, liability, damage, cost and
expense (including reasonable attorneys' and accountants' fees and
disbursements) incurred or suffered by the Adviser in connection with the
investigation, defense or settlement of any such action, suit or proceeding,
only if the acts or omissions of the Adviser did not involve willful
misfeasance, gross negligence, bad faith or reckless disregard of its duties and
obligations under this Agreement; and (ii) In the event that the Adviser is made
a party to any claim, dispute or litigation or otherwise incurs any loss or
expense as a result of or in connection with the activities or claimed
activities of Sub-Adviser or its officers, directors, employees, agents or
affiliates unrelated to the Adviser or the Adviser's business, Sub-Adviser shall
indemnify, defend and hold harmless the Adviser against any loss, liability,
damage, cost and expense (including, without limitation, reasonable attorneys'
and accountants' fees and disbursements to be paid as incurred) incurred in
connection therewith. As used in subparagraphs (i) through (ii) above, the term
"Adviser" shall include the Adviser and the Adviser's directors, officers,
shareholders, employees, agents, and affiliates.(In the event that a person
entitled to indemnification under Sections 15 (a) and (b) is made a party to an
action, suit or proceeding alleging both matters for which indemnification can
be made hereunder and matters for which indemnification may not be made
hereunder, such person shall be indemnified only for that portion of the loss,
liability, damage, cost or expense incurred in such action, suit or proceeding
which relates to the matters for which indemnification can be made.(d)None of
the indemnifications contained in this Section 15 shall be applicable with
respect to default judgments, confessions of judgment or settlements entered
into by the part(ies) claiming indemnification without the prior written consent
of the party obligated to indemnify such party.(e)The provisions of this Section
15 shall survive the termination or other expiration of this Agreement.16.
Independent Contractors. The Sub-Adviser shall for all purposes herein be deemed
to be an independent contractor of Adviser. It is expressly agreed to by the
parties hereto that the relationship created by this Agreement does not create a
partnership or joint venture between the Sub-Adviser and the Adviser. Except as
specifically set forth herein wit respect to the Sub-Adviser's authority to
place orders approved by the Adviser to broker-dealers or banks for trading the
accounts of the Fund, neither party shall have any authority to bind the other
nor shall either party represent to third parties that it has such authority.17.
Liability. Neither the Sub-Adviser nor any of its agents, employees, principals,
directors, or officers or any person who controls the Sub-Adviser shall be
liable to Adviser or its officers, directors, partners, employees, agents or any
person who controls Adviser or any of its successors, or assigns under this
Agreement, except by reason of acts or omissions in contravention of this
Agreement due to willful misfeasance, gross negligence, bad faith, reckless
disregard of its duties and obligations under this Agreement, or violation of
applicable law. Adviser acknowledges that all transactions made by the
Sub-Adviser on behalf of the Fund, shall be for the account and risk of the
Fund. The Sub-Adviser shall have no responsibility for the execution or
clearance of the Fund's trades once orders have been transmitted to the
executing broker-dealer or bank for those trades. Notwithstanding the foregoing
sentences, the federal securities laws impose liabilities under certain
circumstances on persons who act in good faith and therefore, nothing herein
shall in any way constitute a waiver or limitation of any rights which Adviser
may have under the federal securities laws or state securities laws.
18. Disclosure. []Adviser acknowledges receipt of Sub-Adviser's Disclosure
Statement (Part II of Adviser's Form ADV), as required by Rule 204-3 under the
Investment Advisers Act of 1940, not less than 48 hours prior to the date of
execution of this agreement shown below.[] Adviser acknowledges receipt of
Sub-Adviser's Disclosure Statement (Part II of Adviser's Form ADV) less than 48
hours prior to, but not later than, the date of execution of this agreement.
Accordingly, Adviser shall have the option to terminate this agreement without
penalty within five business days after that date of execution; provided,
however, that any investment action taken by Adviser with respect to the Fund
prior to the effective date of such termination shall be at Fund's risk.19.
Entire Agreement: Governing Law. This agreement constitutes the entire agreement
of the parties with respect to the rendering of advice by Sub-Adviser for the
benefit of Adviser and the Fund and can be amended only by written document
signed by the parties. This agreement shall be governed by the internal laws of
the State of Illinois.20. Amendment. This Agreement may be amended from time to
time by agreement of the parties hereto provided that such amendment shall be
approved both by the vote of a majority of Trustees of the Trust, including a
majority of Trustees who are not parties to this Agreement or interested person,
as defined in Section 2(a)(19) of the Act, of any such party at a meeting called
for that purpose, and, where required by Section 15(a)(2) of the Act, by the
holders of a majority of the outstanding voting securities (as defined in
Section 2(a)(42) of the Act) of the Fund. IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed on their behalf by their duty
authorized officers, and their corporate seals affixed hereto this 16th day of
June, 1998.
ATTEST: MICHIGAN NATIONAL BANK
/s/ Xxxxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx, Xx.
Secretary Director, Investment Services
Xxxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxxx, Xx.
XXXXXXX XXXXXXXX CORPORATION
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
Secretary Vice President
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
Exhibit A
Independence One Mutual Funds
Independence One Small Cap Fund
Sub-Advisory Agreement
Advisor will pay Sub-Adviser as full compensation for services rendered
hereunder, an annual fee at the rate of 0.05% based on the average daily value
of the equity securities in the Fund. The fee shall be calculated as determined
by the Fund on the last day of each month on which the New York Stock Exchange
is open and shall be payable on a monthly basis, in arrears.This Exhibit duly
incorporates by reference the Sub-Advisory Agreement.Adviser:/s/
RJS(initials)Sub-adviser:/s/ SDS (initials)
