Exhibit D.4
INVESTMENT SUB-ADVISORY AGREEMENT
CONSTELLATION FUNDS
AGREEMENT made this __ day of _________, 2004, between Constellation
Investment Management Company (the "Adviser") and Clover Capital Management,
Inc. (the "Sub-Adviser").
WHEREAS, Constellation Funds, a Massachusetts business trust (the
"Trust") is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser has entered into an Investment Advisory Agreement
dated _________, 2004 (the "Advisory Agreement") with the Trust, pursuant to
which the Adviser will act as investment adviser to each series of the Trust set
forth on Schedule A of this Agreement (each a "Fund" and collectively the
"Funds"); and
WHEREAS, the Adviser, with the approval of the Trust, desires to retain
the Sub-Adviser to provide investment advisory services to the Adviser in
connection with the management of the Funds, and the Sub-Adviser is willing to
render such investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. DUTIES OF THE SUB-ADVISER. Subject to supervision by the Adviser and
the Trust's Board of Trustees, the Sub-Adviser shall manage those
assets of a Fund that the Adviser determines to allocate to the
Sub-Adviser (the "Allocated Assets"), including the purchase, retention
and disposition of the Allocated Assets, in accordance with each Fund's
investment objectives, policies and restrictions as stated in the
Fund's prospectus and statement of additional information, as currently
in effect and as amended or supplemented from time to time (referred to
collectively as the "Prospectus"), and subject to the following:
(a) The Sub-Adviser shall, in consultation with and subject to the
direction of the Adviser, determine from time to time what
Allocated Assets will be purchased, retained or sold by the
Fund, and what portion of the Allocated Assets will be
invested or held uninvested in cash.
(b) In the performance of its duties and obligations under this
Agreement, the Sub-Adviser shall act in conformity with the
Trust's Declaration of Trust (as defined herein) and the
Prospectus and with the instructions and directions of the
Adviser and of the Board of Trustees of the Trust and will
conform to and comply with the requirements of the 1940 Act,
the Internal Revenue Code of 1986, and all other applicable
federal and state laws and regulations, as each is amended
from time to time.
(c) The Sub-Adviser shall determine the Allocated Assets to be
purchased or sold by the Fund as provided in subparagraph (a)
and will place orders with or through such persons, brokers or
dealers to carry out the policy with respect to brokerage set
forth in each Fund's Registration Statement (as defined
herein) and Prospectus or as the Board of Trustees or the
Adviser may direct from time to time, in conformity with
federal securities laws. In executing Fund transactions and
selecting brokers or dealers, the Sub-Adviser will use its
best efforts to seek on behalf of each Fund the best overall
terms available. In assessing the best overall terms available
for any transaction, the Sub-Adviser shall consider all
factors that it deems relevant, including the breadth of the
market in the security, the price of the security, the
financial condition and execution
capability of the broker or dealer, and the reasonableness of
the commission, if any, both for the specific transaction and
on a continuing basis. In evaluating the best overall terms
available, and in selecting the broker-dealer to execute a
particular transaction, the Sub-Adviser may also consider the
brokerage and research services provided (as those terms are
defined in Section 28(e) of the Securities Exchange Act of
1934). Consistent with any guidelines established by the Board
of Trustees of the Trust, the Sub-Adviser is authorized to pay
to a broker or dealer who provides such brokerage and research
services a commission for executing a fund transaction for a
Fund which is in excess of the amount of commission another
broker or dealer would have charged for effecting that
transaction if, but only if, the Sub-Adviser determines in
good faith that such commission was reasonable in relation to
the value of the brokerage and research services provided by
such broker or dealer - - viewed in terms of that particular
transaction or terms of the overall responsibilities of the
Sub-Adviser to the Fund. In addition, the Sub-Adviser is
authorized to allocate purchase and sale orders for securities
to brokers or dealers (including brokers and dealers that are
affiliated with the Adviser, Sub-Adviser or the Trust's
principal underwriter) to take into account the sale of shares
of the Trust if the Sub-Adviser believes that the quality of
the transaction and the commission are comparable to what they
would be with other qualified firms. In no instance, however,
will a Fund's Allocated Assets be purchased from or sold to
the Adviser, Sub-Adviser, the Trust's principal underwriter,
or any affiliated person of either the Trust, Adviser, the
Sub-Adviser or the principal underwriter, acting as principal
in the transaction, except to the extent permitted by the
Securities and Exchange Commission ("SEC") and the 1940 Act.
(d) The Sub-Adviser shall maintain all books and records with
respect to transactions involving the Allocated Assets
required by subparagraphs (b)(5), (6), (7), (9), (10) and (11)
and paragraph (f) of Rule 31a-1 under the 1940 Act. The
Sub-Adviser shall provide to the Adviser or the Board of
Trustees such periodic and special reports, balance sheets or
financial information, and such other information with regard
to its affairs as the Adviser or Board of Trustees may
reasonably request.
The Sub-Adviser shall keep the books and records relating to
the Allocated Assets required to be maintained by the
Sub-Adviser under this Agreement and shall timely furnish to
the Adviser all information relating to the Sub-Adviser's
services under this Agreement needed by the Adviser to keep
the other books and records of a Fund required by Rule 31a-1
under the 1940 Act. The Sub-Adviser shall also furnish to the
Adviser any other information relating to the Allocated Assets
that is required to be filed by the Adviser or the Trust with
the SEC or sent to shareholders under the 1940 Act (including
the rules adopted thereunder) or any exemptive or other relief
that the Adviser or the Trust obtains from the SEC. The
Sub-Adviser agrees that all records that it maintains on
behalf of a Fund are property of the Fund and the Sub-Adviser
will surrender promptly to the Fund any of such records upon
the Fund's request; provided, however, that the Sub-Adviser
may retain a copy of such records. In addition, for the
duration of this Agreement, the Sub-Adviser shall preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act any
such records as are required to be maintained by it pursuant
to this Agreement, and shall transfer said records to any
successor sub-adviser upon the termination of this Agreement
(or, if there is no successor sub-adviser, to the Adviser).
(e) The Sub-Adviser shall provide each Fund's custodian on each
business day with information relating to all transactions
concerning the Fund's Allocated Assets and shall provide the
Adviser with such information upon request of the Adviser.
2
(f) The investment management services provided by the Sub-Adviser
under this Agreement are not to be deemed exclusive and the
Sub-Adviser shall be free to render similar services to
others, as long as such services do not impair the services
rendered to the Adviser or the Trust.
(g) The Sub-Adviser shall promptly notify the Adviser of any
financial condition that is likely to impair the Sub-Adviser's
ability to fulfill its commitment under this Agreement.
(h) The Sub-Adviser shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in
relation to the Allocated Assets. The Adviser shall instruct
the custodian and other parties providing services to the Fund
to promptly forward misdirected proxies to the Sub-Adviser.
(i) Except as specifically permitted in writing by the Adviser, or
as otherwise permitted or required to comply with the
requirements of the 1940 Act (including the rules adopted
thereunder), the Sub-Adviser shall not consult with any other
sub-adviser to the Trust or a Fund concerning the purchase,
retention or disposition of Fund Allocated Assets.
Services to be furnished by the Sub-Adviser under this Agreement may be
furnished through the medium of any of the Sub-Adviser's partners,
officers or employees.
2. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to each Fund pursuant to
the Advisory Agreement and shall oversee and review the Sub-Adviser's
performance of its duties under this Agreement; provided, however, that
in connection with its management of the Allocated Assets, nothing
herein shall be construed to relieve the Sub-Adviser of responsibility
for compliance with the Trust's Declaration of Trust (as defined
herein), the Prospectus, the instructions and directions of the Board
of Trustees of the Trust, the requirements of the 1940 Act, the
Internal Revenue Code of 1986, and all other applicable federal and
state laws and regulations, as each is amended from time to time.
3. DELIVERY OF DOCUMENTS. The Adviser has furnished the Sub-Adviser with
copies properly certified or authenticated of each of the following
documents:
(a) The Trust's Agreement and Declaration of Trust, as filed with
the Secretary of State of the State of Delaware (such
Agreement and Declaration of Trust, as in effect on the date
of this Agreement and as amended from time to time, herein
called the "Declaration of Trust");
(b) By-Laws of the Trust (such By-Laws, as in effect on the date
of this Agreement and as amended from time to time, are herein
called the "By-Laws");
(c) Prospectus(es) of each Fund.
4. COMPENSATION TO THE SUB-ADVISER. For the services to be provided by the
Sub-Adviser pursuant to this Agreement, the Adviser will pay the
Sub-Adviser, and the Sub-Adviser agrees to accept as full compensation
therefor, a sub-advisory fee at the rate specified on Schedule B or
Schedule C, as applicable, of this Agreement. The fee will be
calculated based on the average monthly market value of the Allocated
Assets under the Sub-Adviser s management and will be paid to the
Sub-Adviser monthly. Except as may otherwise be prohibited by law or
regulation (including any then current SEC staff interpretation), the
Sub-Adviser may, in its discretion and from time to time, waive a
portion of its fee.
3
5. INDEMNIFICATION. The Sub-Adviser shall indemnify and hold harmless the
Adviser from and against any and all claims, losses, liabilities or
damages (including reasonable attorney's fees and other related
expenses) howsoever arising from or in connection with the performance
of the Sub-Adviser s obligations under this Agreement; provided,
however, that the Sub-Adviser s obligation under this Section 5 shall
be reduced to the extent that the claim against, or the loss, liability
or damage experienced by the Adviser, is caused by or is otherwise
directly related to the Adviser's own, or any other sub-adviser's,
willful misfeasance, bad faith or negligence, or to the reckless
disregard of its duties under this Agreement.
6. DURATION AND TERMINATION. This Agreement shall become effective upon
its approval by the Trust's Board of Trustees and by the vote of a
majority of the outstanding voting securities of each Fund. This
Agreement shall continue in effect for a period of more than two years
from the date hereof only so long as continuance is specifically
approved at least annually in conformance with the 1940 Act; provided,
however, that this Agreement may be terminated with respect to a Fund
(a) by the Fund at any time, without the payment of any penalty, by the
vote of a majority of Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund, (b) by the
Adviser at any time, without the payment of any penalty, on not more
than 60 days' nor less than 30 days' written notice to the Sub-Adviser,
or (c) by the Sub-Adviser at any time, without the payment of any
penalty, on 90 days' written notice to the Adviser. This Agreement
shall terminate automatically and immediately in the event of its
assignment, or in the event of a termination of the Adviser's agreement
with the Trust. As used in this Section 6, the terms "assignment" and
"vote of a majority of the outstanding voting securities" shall have
the respective meanings set forth in the 1940 Act and the rules and
regulations thereunder, subject to such exceptions as may be granted by
the SEC under the 1940 Act.
7. GOVERNING LAW. This Agreement shall be governed by the internal laws of
the Commonwealth of Pennsylvania, without regard to conflict of law
principles; provided, however, that nothing herein shall be construed
as being inconsistent with the 1940 Act.
8. SEVERABILITY. Should any part of this Agreement be held invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors.
9. NOTICE. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by
registered, certified or overnight mail, postage prepaid addressed by
the party giving notice to the other party at the last address
furnished by the other party:
To the Adviser at: Constellation Investment Management
Company, LP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
To the Sub-Adviser at: Clover Capital Management, Inc.
00 Xxxx Xxxxxxx
Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Chief Counsel
10. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to this
4
Agreement's subject matter. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but such counterparts shall, together, constitute only one
instrument.
A copy of the Declaration of Trust is on file with the Secretary of
State of the State of Delaware, and notice is hereby given that the obligations
of this instrument are not binding upon any of the Trustees, officers or
shareholders of the Fund or the Trust.
Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first written
above.
CLOVER CAPITAL MANAGEMENT, INC. CONSTELLATION INVESTMENT MANAGEMENT
COMPANY, LP
By: __________________________ By: _______________________________
Name: ________________________ Name: _____________________________
Title: _______________________ Title: ____________________________
5
SCHEDULE A
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
LISTING OF FUNDS
Name of Fund
Constellation Clover Large Cap Value Fund
Constellation Clover Core Value Fund
Constellation Clover Small Cap Value Fund
Constellation Clover Core Fixed Income Fund
SCHEDULE B
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
FOR FUNDS WITH PERFORMANCE ADJUSTMENTS
This Schedule B shall apply to each of the Funds identified on Schedule B-1
hereto.
(a) GENERAL. The Adviser shall pay to the Sub-Adviser, as
compensation for the Sub-Adviser's services and expenses assumed hereunder, a
fee determined with respect to each Fund, which shall be composed of the Basic
Fee (defined below) and a Performance Adjustment (defined below) to the Basic
Fee based upon the investment performance of a class of shares of the Fund in
relation to the investment record of a securities index determined by the
Trustees of the Trust to be appropriate over the same period.
(b) INDEX, CLASS AND CHANGES THERETO. The Trustees have initially
designated for each Fund the index and class of shares of the Fund identified on
Schedule B-1 as the index and class to be used for purposes of determining the
Performance Adjustment (referred to herein as the "Index" and the "Class,"
respectively). From time to time, the Trustees may, by a vote of the Trustees of
the Trust voting in person, including a majority of the Trustees who are not
parties to this Agreement or "interested persons" (as defined in the 0000 Xxx)
of any such parties, determine (i) that another securities index is a more
appropriate benchmark than the Index for purposes of evaluating the performance
of the Trust; and (ii) that a different class of shares of the Trust
representing interests in a Fund other than the Class is most appropriate for
use in calculating the Performance Adjustment. If a different index (the
"Successor Index") is substituted for the Index in prospectively calculating the
Performance Adjustment, the calculation of that portion of the Performance
Adjustment attributable to any portion of the performance period prior to the
adoption of the Successor Index will still be based upon the Fund's performance
compared to the Index. If a different class of shares (the "Successor Class") is
substituted in calculating the Performance Adjustment the use of a Successor
Class of shares for purposes of calculating the Performance Adjustment shall
apply to the entire performance period so long as such Successor Class was
outstanding at the beginning of such period. In the event that such Successor
Class of shares was not outstanding for all or a portion of the Performance
Period, it may only be used in calculating that portion of the Performance
Adjustment attributable to the period during which such Successor Class was
outstanding and any prior portion of the Performance Period shall be calculated
using the Successor Class of shares previously designated.
(c) BASIC FEE. The basic fee for a Fund (the "Basic Fee") for any
period shall equal: (i) the Fund's average net assets during such period,
multiplied by (ii) the annual rate identified for such Fund on Schedule B-1
hereto, multiplied by (iii) a fraction, the numerator of which is the number of
calendar days in the payment period and the denominator of which is 365 (366 in
leap years).
(d) PERFORMANCE ADJUSTMENT. The amount of the performance
adjustment (the "Performance Adjustment") shall equal: (i) the average net
assets of the Fund over the Performance Period (as defined below), multiplied by
(ii) the Adjustment Rate (as defined below), multiplied by (iii) a fraction, the
numerator of which shall be the number of days in the last month of the
Performance Period and the denominator of which shall be 365. The resulting
dollar figure will be added to or subtracted from the Basic Fee depending on
whether the Fund experienced better or worse performance than the Index.
(e) ADJUSTMENT RATE. The adjustment rate (the "Adjustment Rate")
shall be as set forth in Schedule B-2 for each Fund, provided, however, that the
Performance Adjustment may be further
2
adjusted to the extent necessary to insure that the total adjustment to the
Basic Fee on an annualized basis does not exceed the maximum Performance
Adjustment identified for such Fund in Schedule B-2.
(f) PERFORMANCE PERIOD. The performance period (the "Performance
Period") shall commence on the first day of the month next occurring after this
Agreement becomes effective with respect to the Fund (the "Commencement Date"),
provided, however, that if this Agreement should become effective on the first
day of a month with respect to a Fund, then the Commencement Date shall be the
first day of such month. The Performance Period shall consist of a rolling
12-month period that includes the current month plus the preceding 11 months
following the commencement of Fund operations under this Agreement. No
Performance Adjustment shall be made with respect to any period that is less
than 12 months, provided, however, that the Adviser may calculate a Performance
Adjustment for the Constellation TIP Financial Services Fund based upon
performance achieved by such Fund prior to the effective date of this Agreement.
(g) MEASUREMENT CALCULATION. The Fund's investment performance
will be measured by comparing the (i) opening net asset value of one share of
the Class of the Fund on the first business day of the Performance Period with
(ii) the closing net asset value of one share of the Class of the Fund as of the
last business day of such period. In computing the investment performance of the
Fund and the investment record of the Index, distributions of realized capital
gains, the value of capital gains taxes per share paid or payable undistributed
realized long-term capital gains accumulated to the end of such period and
dividends paid out of investment income on the part of the Fund, and all cash
distributions of the companies whose securities comprise the Index, will be
treated as reinvested in accordance with Rule 205-1 or any other applicable rule
under the Investment Advisers Act of 1940, as the same from time to time may be
amended.
(h) PAYMENT OF FEES. The Management Fee payable hereunder shall be
computed daily and paid monthly in arrears.
(i) AVERAGE NET ASSETS. The term "average net assets" of a Fund as
used herein for any period shall mean the quotient produced by dividing (i) the
sum of the net assets of the Fund, as determined in accordance with procedures
established from time to time under the direction of the Board of Trustees of
the Trust, for each calendar day of such period, by (ii) the number of such
days.
(j) TERMINATION. In the event this Agreement with respect to any
Fund is terminated as of a date other than the last day of any month, the Basic
Fee shall be computed on the basis of the period ending on the last day on which
this Agreement is in effect for such Fund, subject to a pro rata adjustment
based on the number of days elapsed in the current month as a percentage of the
total number of days in such month. The amount of any Performance Adjustment to
the Basic Fee will be computed on the basis of and applied to the average net
assets over the Performance Period ending on the last day on which this
Agreement is in effect for such Fund.
3
SCHEDULE B-1
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
LISTING OF FUNDS WITH PERFORMANCE ADJUSTMENTS
ANNUAL BASIC
NAME OF FUND / APPLICABLE CLASS PERFORMANCE INDEX FEE RATE
------------------------------- ----------------- --------
Constellation Clover Large Cap Value Xxxxxxx 1000 Value Index 0.37%
Fund
Constellation Clover Core Value Xxxxxxx 3000 Value Index 0.37%
Fund
Constellation Clover Small Cap Value Xxxxxxx 2000 Value Index 0.50%
Value Fund
Constellation Clover Core Fixed Xxxxxx Brothers Aggregate Bond Index 0.225%
Income Fund
4
SCHEDULE B-2
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
PERFORMANCE ADJUSTMENT RATE
MAXIMUM RATE
NAME OF FUND / CLASS ADJUSTMENT METHODOLOGY
-------------------- ---------- -----------
Constellation Clover Large Cap +/- 0.075%
Value Fund -
[Class I Shares]
Constellation Clover Core Value +/- 0.10%
Fund -
[Class I Shares]
Constellation Clover Small Cap +/- 0.1125%
Value Fund -
[Class I Shares]
Constellation Clover Core Fixed +/- 0.06%
Income Fund - Class I Shares
5
SCHEDULE C
TO THE
INVESTMENT ADVISORY AGREEMENT
FOR FUNDS WITH NO PERFORMANCE ADJUSTMENT
This Schedule B shall apply to each of the Funds identified on Schedule C-1
hereto.
(a) The Trust shall pay to the Adviser a fee for each Fund
calculated daily and payable monthly in arrears, computed as a percentage of the
average net assets of the Fund for such month at the rate set forth in Schedule
C-1 hereto.
(b) The "average net assets" of the Fund for any month shall be
equal to the quotient produced by dividing (i) the sum of the net assets of such
Fund, determined in accordance with procedures established from time to time by
or under the direction of the Board of Trustees of the Trust, for each calendar
day of such month, by (ii) the number of such days.
6
SCHEDULE C-1
TO THE
INVESTMENT ADVISORY AGREEMENT
LISTING OF FUNDS AND FEE RATES
Name of Fund
None
7
