MASTERS' SELECT EQUITY FUND MASTERS' SELECT FUNDS TRUST INVESTMENT SUB-ADVISORY AGREEMENT
MASTERS'
SELECT EQUITY FUND
MASTERS'
SELECT FUNDS TRUST
THIS
INVESTMENT SUB-ADVISORY AGREEMENT is made as of the _____ day of ______, 2008 by
and between LITMANGREGORY FUND ADVISORS, LLC (the "Advisor") and XXXXXX
INVESTMENT PARTNERS, INC (the "Sub-Advisor").
WITNESSETH:
WHEREAS,
the Advisor has been retained as the investment adviser to the Masters' Select
Equity 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, 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, file required ownership
reports, 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; (vii) furnish reports, statements and other data on securities,
economic conditions 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.
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(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). 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
the following into consideration: the best net price available; the reliability,
integrity 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 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 services offered.
Subject
to such policies as the Advisor and the Board of Trustees of the Trust may
determine, 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 or the Advisor's overall
responsibilities with respect to the Fund. The Sub-Advisor is further authorized
to allocate the orders placed by it on behalf of the Fund to such brokers or
dealers who also provide research or statistical material, or other services, to
the Trust, the Advisor, any affiliate of either, or the Sub-Advisor. 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, allocation of the securities so purchased or sold, as well as the
expenses incurred in the transaction, will be made by the Sub-Advisor in the
manner it considers to be the most equitable and consistent with 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. 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 required for the Fund to comply with any rules or
regulations promulgated by the SEC. The Sub-Advisor 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 information regarding
the policies and procedures that the Sub-Advisor uses to determine how to vote
proxies relating to the Allocated Portion. The Fund may request that the
Sub-Advisor vote proxies for the Allocated Portion in accordance with the Fund's
proxy voting policies.
(d) Books and Records. In
compliance with the requirements of Rule 3 1 a-3 under the Investment Company
Act, the Sub-Advisor hereby agrees that all records which it maintains for the
Fund are the property of the Fund and further agrees to surrender promptly to
the Fund copies of any of such records upon the Fund's request. The Sub-Advisor
further agrees to preserve for the periods prescribed by Rule 3 1 a-2 under the
Investment Company Act the records required to be maintained by Rule 3 1 a-1
under the Investment Company Act with respect to the Fund and to preserve the
records required 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. With respect to any transaction the Fund enters
into with an affiliated sub-advisor (or an affiliated person of such
sub-advisor) in reliance on Rule 1 Of-3, Rule 17a-10 or Rule 12d3-1 under the
Investment Company Act, the Sub-Advisor agrees that it will not consult with the
affiliated sub-advisor concerning such transaction, except to the extent
necessary to comply with the percentage limits of paragraphs (a) and (b) of Rule
12d3-1.
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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 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, only if (i) the Sub-Advisor, under the terms
of this Agreement, is responsible for providing investment advice with respect
to its Allocated Portion, and (ii) the other sub-advisor is responsible for
providing investment advice with respect to a separate portion of the portfolio
of the Fund.
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 maintain all licenses and registrations necessary to perform its duties
hereunder in good order.
(c) Sub-Advisor
shall 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 authorized 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.
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 statistical
information, research, and other factual information, advice regarding economic
factors and trends, information with respect to technical and scientific
developments, and such other information, advice, and assistance as the
Sub-Advisor, the Advisor or the Trust's Board of Trustees may desire and
reasonably request.
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6. Expenses.
(a) The
Sub-Advisor shall be responsible for (i) providing the personnel, office space,
and equipment reasonably necessary to fulfill its obligations under this
Agreement.
(b) The
Sub-Advisor may voluntarily absorb certain Fund expenses or waive some or all of
the Sub-Advisor's own fee.
(c) To
the extent the Sub-Advisor incurs any costs by assuming expenses which are an
obligation of the Advisor or the Fund, the Advisor or the Fund shall promptly
reimburse the Sub-Advisor for such costs and expenses. To the extent the
Sub-Advisor performs services for which the Fund or the Advisor is obligated to
pay, the Sub-Advisor shall be entitled to prompt reimbursement in such amount as
shall be negotiated between the Sub-Advisor and the Advisor but shall, under no
circumstances, exceed the Sub-Advisor's actual costs for providing such
services.
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 0.60% 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 paid by the Advisor to Sub-Advisor monthly in arrears
on the tenth business day of each month.
(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.
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(d) The
fee payable to the Sub-Advisor under this Agreement will be reduced to the
extent of any receivable owed by the Sub-Advisor to the Advisor or the
Fund.
(e) The
Sub-Advisor voluntarily may reduce any portion of the compensation or
reimbursement of expenses due to it pursuant to this Agreement and may agree to
make payments to limit the expenses which are the responsibility of the Advisor
of the Fund under this Agreement. Any such reduction or payment shall be
applicable only to such specific reduction or payment and shall not constitute
an agreement to reduce any future compensation or reimbursement due to the
Sub-Advisor hereunder or to continue future payments. Any such reduction will be
agreed to prior to accrual of the related expense or fee and will be estimated
daily and reconciled and paid on a monthly basis.
(f) The
Sub-Advisor may agree not to require payment of any portion of the compensation
or reimbursement of expenses otherwise due to it pursuant to this Agreement. Any
such agreement shall be applicable only with respect to the specific items
covered thereby and shall not constitute an agreement not to require payment of
any future compensation or reimbursement due to the Sub-Advisor
hereunder.
8. No Shorting; No
Borrowing. The Sub-Advisor agrees that neither it nor any of its officers
or employees shall take any short position in the shares of the Fund. This
prohibition shall not prevent the purchase of such shares by any of the officers
or employees of the Sub- Advisor or any trust, pension, profit-sharing or other
benefit plan for such persons or affiliates thereof, at a price not less than
the net asset value thereof at the time of purchase, as allowed pursuant to
rules promulgated under the Investment Company Act. The Sub-Advisor agrees that
neither it nor any of its officers or employees shall borrow from the Fund or
pledge or use the Funds 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 administrator to satisfy its obligations and respond to
the reasonable requests of the Trustees.
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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 the 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 any investment made by the
Sub-Advisor in violation of Section 2 hereof.
(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
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.
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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.
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 undertake no activities which 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 has been 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 required to
satisfy the 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 materially amends or has materially 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.
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(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.
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.
(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. Nonpublic Personal
Information. Notwithstanding any provision herein to the contrary, the
Sub-Advisor hereto agrees on behalf of itself and its directors, trustees,
shareholders, officers, and employees (1) to treat confidentially and as
proprietary information of the Advisor (on behalf of itself and the Fund) and
the Trust (a) all records and other information relative to the Fund's prior,
present, or potential shareholders (and clients of said shareholders) and (b)
any Nonpublic Personal Information, as defined under Section 248.3(t) of
Regulation S-P ("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the "G-L-B Act"), and (2) except after prior notification to and approval in
writing by the Advisor or the Trust, not to use such records and information for
any purpose other than the performance of its responsibilities and duties
hereunder, or as otherwise permitted by Regulation S-P or the G-L-B Act, and if
in compliance therewith, the privacy policies adopted by the Advisor and the
Fund and communicated in writing to the Sub-Advisor. Such written approval shall
not be unreasonably withheld by the Advisor or the Trust and may not be withheld
where the Sub-Advisor may be exposed to civil or criminal contempt or other
proceedings for failure to comply after being requested to divulge such
information by duly constituted authorities.
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19. Anti-Money Laundering
Compliance. The Sub-Advisor acknowledges that, in compliance with the
Bank Secrecy Act, as amended, the USA PATRIOT Act, and any respective
implementing regulations (together, "AML Laws"), the Fund has adopted an
Anti-Money Laundering Policy. The Sub-Advisor agrees to comply with the Fund's
Anti-Money Laundering Policy and the AML Laws, as the same may apply to the
Sub-Advisor, now and in the future. The Sub-Advisor further agrees to provide to
the Fund and/or the Advisor such reports, certifications and contractual
assurances as may be requested by the Fund or the Advisor. The Advisor may
disclose information respecting the Sub-Advisor to governmental and/or
regulatory or self regulatory authorities to the extent required by applicable
law or regulation and may file reports with such authorities as may be required
by applicable law or regulation.
20. 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. 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 and implementing the
Fund's disclosure controls and procedures. The Sub-Advisor agrees to inform the
Fund of any material development related to the Allocated Portion that the
Sub-Advisor reasonably believes is relevant to the Fund's certification
obligations under the Xxxxxxxx-Xxxxx Act.
21. 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;
(b) the
Sub-Advisor 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 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;
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(d) the
Sub-Advisor, its principal officers or its controlling stockholders 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 personnel materially involved in the management of
the Allocated Portion; or
(f) a
change in control or management of the Sub-Advisor.
22. Confidentiality. The
parties to this Agreement shall not, 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.
23. 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
ADVISORS,
LLC
|
XXXXXX
INVESTMENT PARTNERS, INC.
|
|
|
By:
____________________________
|
By:
_____________________________
|
|
|
Name:
Xxxx X. Xxxxxxxx
|
Name:
Xxxxx X. XxXxxxx
|
|
|
Title:
Chief Operating Officer
|
Title:
General Counsel & CCO
|
|
|
As
a Third Party Beneficiary,
|
||
|
MASTERS’
SELECT FUNDS TRUST
on
behalf of
MASTERS’
SELECT EQUITY FUND
|
||
|
By:
____________________________
|
||
|
Name:
Xxxx X. Xxxxxxxx
|
||
|
Title:
Treasurer
|
||
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