INVESTMENT SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 21st day of August, 2009, by and among Xxxxxxxxx Xxxxxx Management
LLC, a limited liability
corporation located
at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the “Sub-Advisor”), and Envestnet Asset Management, Inc.
a Delaware corporation located at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX,
00000 (the “Advisor”).
WHEREAS, Trust for Professional Managers, a
Delaware statutory trust located at 000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx XX 00000
(the “Trust”), is an open-end management investment
company registered under the Investment Company Act of 1940, as amended (the
“1940 Act”); and
WHEREAS, the PMC Diversified Equity
Fund (the “Fund”) is a separate series of the Trust
having separate assets and liabilities; and
WHEREAS, the Advisor and the Sub-Advisor are
each engaged in the business of rendering investment advice;
and
WHEREAS, the Advisor and Sub-Advisor are
each registered as
investment Advisors under
the Investment Advisors Act of 1940, as amended (the
“Advisors Act”); and
WHEREAS, the Trust on behalf of the Fund has
retained the Advisor to render investment management services to the Fund
pursuant to an Amended and
Restated Investment
Advisory Agreement dated as of July 28, 2009 (the “Investment Advisory
Agreement”); and
WHEREAS, the Investment Advisory Agreement
allows the Advisor to delegate certain of its responsibilities under the
Investment Advisory Agreement to others; and
WHEREAS, the Advisor seeks to delegate certain
of its responsibilities under the Investment Advisory Agreement to the
Sub-Advisor pursuant to this Investment Sub-Advisory Agreement (the “Agreement”).
NOW, THEREFORE,
WITNESSETH: That it is
agreed among the parties hereto as follows:
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1.
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APPOINTMENT OF
SUB-ADVISOR.
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(a)
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Acceptance. The Sub-Advisor is
hereby appointed and the Sub-Advisor hereby accepts the appointment, on
the terms herein set forth and for the compensation herein provided, to
act as investment Advisor to that portion of the
Fund’s portfolio designated by the
Advisor (the “Portfolio”).
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(b)
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Independent
Contractor. The Sub-Advisor shall
for all purposes herein be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no
authority to act for or be deemed an agent of the
Fund.
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(c)
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The
Sub-Advisor’s
Representations. The Sub-Advisor
represents, warrants and agrees that it has all requisite power and
authority to enter into and perform its obligations under this Agreement,
and has taken all necessary corporate action to authorize its execution,
delivery and performance of this
Agreement.
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The Sub-Advisor represents, warrants and
agrees that it is registered as an investment Advisor under the Advisors Act. The Sub-Advisor will
promptly notify the Advisor of the occurrence of any event that would disqualify
the Sub-Advisor from serving as an investment Advisor of an investment company pursuant to
Section 9(a) of the 1940 Act or otherwise.
The Sub-Advisor has adopted a written
code of ethics complying with the requirements of Rule 17j-1 under the 1940 Act
and, if it has not already done so, will provide the Advisor and the Trust with
a copy of such code of ethics. On at least an annual basis, the
Sub-Advisor will comply with the reporting requirements of Rule 17j-1, which may
include (i) certifying to the Advisor that the Sub-Advisor and its access
persons have complied with the Sub-Advisor’s code of ethics with respect to the
Portfolio, and (ii) identifying any material violations of the
Sub-Advisor’s code of ethics which have occurred
with respect to the Portfolio. Upon reasonable notice from and the
reasonable request of the Advisor, the Sub-Advisor shall permit the Advisor, its
employees and its agent to examine the reports required to be made by the
Sub-Advisor pursuant to Rule 17j-1 and reasonable access to the
Sub-Advisor’s Chief Compliance Officer to discuss any
records relevant to the Sub-Advisor’s code of ethics. In conjunction with this
discussion, Sub-Advisor will make available, upon reasonable notice and
reasonable request, solely on Sub-Advisor’s premises, the relevant records that
document:
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(i)
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that
Sub-Advisor uses reasonable diligence and institutes policies and
procedures reasonably necessary to detect and prevent its Access Persons
(as defined in Sub-Advisor’s Code of Ethics) from violating its Code of
Ethics, including a
procedure for detecting and preventing material trading abuses and
requires all Access Persons to report personal securities transactions on
an initial, quarterly and annual basis (the “Reports”);
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(ii)
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that
Sub-Advisor circulates the Code of Ethics and receives an acknowledgement
from each Access Person that the Code of Ethics has been read and
understood;
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(iii)
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that
Sub-Advisor’s Chief Compliance Officer, or his designee, compares the
Reports with completed and contemplated portfolio transactions of the Fund
to determine whether a possible violation of the Code of Ethics and/or
other applicable trading policies and procedures may have
occurred;
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(iv)
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that
no Access Person approves his or her own Report(s). Sub-Advisor shall
appoint an alternate employee to review the Sub-Advisor’s Chief Compliance
Officer’s, or his designee’s, own Reports if such person(s) is also an
Access Person; and
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(v)
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that
Sub-Advisor’s Chief Compliance Officer, or his designee, maintains a list
of all Access Persons.
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Sub-Advisor
shall not be required to disclose personal and confidential information of its
employees, such as personal securities holdings information and outside business
activities. Copies of any records that are necessary for the
verification of sub-sections (i) – (v) containing such information may be
reasonably redacted solely to the extent necessary in order to preserve the
confidentiality of such information. In the event of an inquiry, audit or
examination of the Fund by a federal or state regulatory authority, the
Sub-Advisor shall provide to the Fund such records, reports and other documents
as deemed necessary by such regulatory authority for purposes of compliance with
such request. Any documents required to be submitted by the Sub-Advisor to
the Fund will be subject to the provision that they are to be used only in
connection with the request by the regulatory authority and the Fund will
undertake reasonable and diligent efforts to protect the confidentiality of such
documents.
The Sub-Advisor has adopted and
implemented written policies and procedures, as required by Rule 206(4)-7 under
the Advisors Act, which are reasonably designed to
prevent violations of federal securities laws by the Sub-Advisor, its employees,
officers, and agents. Upon reasonable notice to and reasonable
request, the Sub-Advisor shall provide the Advisor with access to the records
relating to such policies and procedures as they relate to the portfolio
in order for the Advisor to
satisfy its obligations to the Fund. The Sub-Advisor will also provide, at
the reasonable request of the Advisor, periodic certifications, in a form
reasonably acceptable to the Advisor, attesting to such written policies and
procedures.
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(d)
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The
Advisor’s Representations. The Advisor represents,
warrants and agrees that it has all requisite power and authority to enter
into and perform its obligations under this Agreement, and has taken all
necessary corporate action to authorize its execution, delivery and
performance of this
Agreement.
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The Advisor further represents, warrants
and agrees that it has the authority under the Investment Advisory Agreement to
appoint the Sub-Advisor.
The Advisor further represents and
warrants that it
has received a copy of Part II of the Sub-Advisor’s Form
ADV.
The Advisor further represents and
warrants that the
Fund is either (i) excluded from the definition of the term “pool” under Section
4.5 of the General Regulations under the Commodity Exchange Act (“Rule 4.5”), or (ii) a qualifying entity under
Rule 4.5(b) for which a notice of eligibility has been
filed.
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The Advisor has provided the Sub-Advisor
with the Fund’s most current prospectus and statement of additional information
contained in the Trust’s registration statement (together, the “Prospectus”) and the Trust’s code of ethics and
instructions, policies and directions of the Trustees pertaining to the Advisor
and the Fund, as in effect from time to time. The Advisor shall
promptly furnish to the Sub-Advisor copies of all material amendments or
supplements to the foregoing documents.
The Advisor will provide timely
information to the Sub-Advisor regarding such matters as inflows to and outflows
from the Fund and the cash requirements of, and cash available for investment
in, the Fund.
The Advisor will timely provide the
Sub-Advisor with copies of monthly accounting statements for the Fund, and such
other information as may be reasonably necessary or appropriate in order for the
Sub-Advisor to perform its responsibilities hereunder.
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(e)
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Plenary
authority of the Board of Trustees. The Sub-Advisor and Advisor
both acknowledge that the Fund is a mutual fund that operates as a series
of the Trust under the authority of the Trust’s Board of Trustees (the
“Board of
Trustees”).
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2.
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PROVISION OF INVESTMENT
SUB-ADVISORY SERVICES.
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Within the framework of the fundamental
policies, investment objectives, and investment restrictions of the Fund, and
subject to the supervision and review of the Advisor and the Board of Trustees,
the Sub-Advisor shall have the sole and exclusive responsibility for the making
of all investment decisions for the Portfolio, including purchase, retention and
disposition of securities, in accordance with the Fund’s investment objectives,
policies and restrictions as stated in the Prospectus.
As of the date of this Agreement
approximately [TBD]% of the Fund’s investable assets will be allocated to
the Portfolio, and on each business day during the term of this Agreement the
same percentage of the net cash derived from purchases, or required for
redemptions, of Fund shares will normally be added to or withdrawn from the
Portfolio; provided, however, that the Advisor has the right at any time to
reallocate the portion of the Fund’s assets allocated to the Portfolio
pursuant to this Agreement if the Advisor deems such reallocation
appropriate.
For the purpose of complying with Rule
10f-3(a)(6)(ii), Rule 12d3-1(c)(3)(ii), Rule 17a-10(a)(2) and Rule 17e-1(d)(2)
under the 1940 Act, the Sub-Advisor hereby agrees that:
(i) with respect to
transactions in securities or other assets for the Fund, it will not consult
with any other sub-Advisor to the Fund, or with any
sub-Advisor that is principal underwriter for the
Fund or an affiliated person of such principal underwriter; (ii)
with respect to
transactions in securities or other assets for a PMC Fund (as defined below), it will not consult with any
sub-Advisor to a separate series of the Trust for
which the Advisor serves as
investment Advisor (a
“PMC Fund”), or with any sub-Advisor to a PMC Fund that is a principal
underwriter to a PMC Fund or an affiliated person of such principal underwriter;
and (iii) its responsibility in providing investment advisory services to the Fund shall be limited
solely to that portion of the Fund’s portfolio designated by the
Advisor.
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The Sub-Advisor will, at its own
expense:
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(a)
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consult with the Advisor from time
to time in connection with investment policy decisions to be made by it
regarding the portion of the Fund managed by Sub-Advisor and upon request,
furnish the Advisor with research, economic and statistical data in
connection with the Fund’s investments made by the
Sub-Advisor;
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(b)
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submit such reports and
information as the Advisor or the Fund may reasonably request to assist
the Fund’s custodian (the “Custodian”), administrator or fund
accounting agent, in its or their determination of the market value of
securities held in the Fund;
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(c)
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place orders for purchases and
sales of portfolio investments for the
Fund;
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(d)
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give instructions to the Custodian
concerning the delivery of securities and transfer of cash for the
Fund;
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(e)
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maintain and preserve the records
relating to its activities hereunder required by applicable law to be
maintained and preserved by the Advisor, to the extent not maintained by
the Advisor or another agent of the Fund, and 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 such records upon the Fund’s
request;
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(f)
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as soon as practicable after the
close of business each day but no later than 11:00 a.m. Eastern time the
following business day, provide the Custodian with copies of trade tickets
for each transaction effected for the Fund, provide copies to the Advisor
upon request, and promptly forward to the Custodian copies of all
brokerage or dealer
confirmations;
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(g)
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as soon as practicable following
the end of each calendar month, provide the Advisor with written
statements showing all transactions effected for the Fund during the
month, a summary listing all investments held in the Fund as of the last
day of the month, and such other information as the Advisor may reasonably
request in connection with any accounting services that the Advisor or its
agents provide for the Fund. Advisor acknowledges that
Sub-Advisor and Custodian or the Fund’s accounting agent may use
different pricing vendors, which may result in valuation
discrepancies;
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(h)
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absent specific instructions to
the contrary provided to it by the Advisor, and subject to its receipt of
all necessary voting materials, vote all proxies with respect to
investments of the Fund in accordance with the Sub-Advisor’s proxy voting policy as most
recently provided to the Advisor. The Sub-Advisor may use the
services of a proxy voting agent to vote proxies on behalf of the Fund.
The Sub-Advisor shall use its good faith judgment in a manner which it
reasonably believes best serves the interests of the Fund’s shareholders to vote or abstain
from voting all proxies solicited by or with respect to the issuers of
securities in the Portfolio. The Sub-Advisor’s obligations in the previous
sentence are contingent upon its timely receipt of such proxy solicitation
materials, which the Advisor shall cause to be forwarded to the
Sub-Advisor. The Sub-Advisor further agrees that it will
provide the Board of Trustees, as the Board may reasonably request, with a
written report of the proxies voted during the most recent 12-month period
or such other period as the Board may designate, in a format that shall
comply with the 1940 Act. Upon reasonable request, the
Sub-Advisor shall provide the Advisor with all proxy voting records
relating to the Portfolio, including but not limited to those required by
Form N-PX. Upon request of the Advisor, the Sub-Advisor will also provide an
annual certification, in a form reasonably acceptable to the Advisor,
attesting to the accuracy and completeness of such proxy voting
records. The Sub-Advisor will not be
responsible for taking any independent action or rendering
any advice with respect to any legal proceedings or bankruptcies
involving the issuers of securities held by the Fund; however,
solely to the extent necessary to protect and preserve the
interest of the Fund, the Sub-Advisor will provide reasonable cooperation
with Advisor in such things as assisting the Advisor to make certain
filings and maintaining the Fund’s security interest, but the Sub-Advisor
shall not be responsible for making any such related filings nor rendering
advice in connection
therewith.
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(i)
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inform the Advisor and the Board
of Trustees of material changes in investment strategy or tactics or in
key personnel;
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(j)
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furnish to the Board of Trustees
such information as may reasonably be necessary in order for such Trustees
to evaluate this Agreement or any proposed amendments hereto for the
purpose of casting a vote pursuant to Section 7
hereof;
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(k)
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notify the Advisor of any material
changes in its ownership within a reasonable time prior to such changes;
and
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(l)
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provide reasonable assistance to
the Trust in connection with the Trust’s compliance with the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated by the
Securities and Exchange Commission thereunder, and Rule 38a-1 of the 1940
Act. Such assistance shall include, but not be limited to, (i)
certifying periodically, upon the reasonable request of the Trust, that it
is in compliance with all applicable “federal securities
laws,” as required by Rule 38a-1(e)(1)
under the 1940 Act, and Rule 206(4)-7 under the Advisors Act; (ii) facilitating and
cooperating with third-party audits arranged by the Trust to evaluate the
effectiveness of it compliance controls; and (iii) providing the
Trust’s Chief Compliance Officer with direct access to its
compliance personnel; (iv) providing the Trust’s Chief Compliance Officer with periodic reports; and
(v) promptly providing special reports to the Trust’s Chief Compliance Officer in the event of compliance
problems.
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3.
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ALLOCATION OF
EXPENSES.
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Each party to this Agreement shall bear
the costs and expenses of performing its obligations hereunder. In
this regard, the Advisor specifically agrees that the Fund shall assume the
expense of:
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(a)
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brokerage commissions for
transactions in the portfolio investments of the Fund and similar fees and
charges for the acquisition, disposition, lending or borrowing of such
portfolio investments;
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(b)
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custodian fees and
expenses;
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(c)
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all taxes, including issuance and
transfer taxes, and reserves for taxes payable by the Fund to federal,
state or other government agencies;
and
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(d)
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interest payable on any Fund
borrowings.
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The Sub-Advisor specifically agrees that
with respect to the operation of the Fund, the Sub-Advisor shall be responsible for providing the personnel, office space
and equipment reasonably necessary for its management services provided to the
Fund. In order to minimize the need and expense on Advisor of convening a
special Board of Trustees meeting, Sub-Advisor agrees that, to the extent
reasonably practical, Sub-Advisor will provide Advisor sufficient notice of any
changes to the Sub-Advisor, so that such issues may be considered by the Board
of Trustees during its regularly scheduled quarterly
meetings. Nothing in this Agreement shall alter
the allocation of expenses and costs agreed upon between the Fund and the
Advisor in the Investment Advisory Agreement or any other agreement to which
they are parties.
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4.
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SUB-ADVISORY
FEES.
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For all of the services rendered with
respect to the Fund as herein provided, the Advisor shall pay to the Sub-Advisor
a fee (for the payment of which the Fund shall have no obligation or liability),
based on the Current Net Assets of the Portfolio (as defined below), as set
forth in Schedule A attached hereto and made a part hereof. Such fee
shall be accrued daily and payable quarterly, as soon as practicable after the
last day of each calendar quarter. In the case of termination of this
Agreement with respect to the Fund during any calendar month, the fee with
respect to such Portfolio accrued to, but excluding, the date of termination
shall be paid promptly following such termination. For purposes of
computing the amount of advisory fee accrued for any day, “Current Net Assets” shall mean the Portfolio’s net assets as of the most recent
preceding day for which the Fund’s net assets were
computed.
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5.
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PORTFOLIO
TRANSACTIONS.
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In connection with the investment and
reinvestment of the assets of the Portfolio, the Sub-Advisor is authorized to
select the brokers or dealers that will execute purchase and sale transactions
for the Portfolio and to use all reasonable efforts to obtain the best available
price and most favorable execution with respect to all such purchases and sales
of portfolio securities for said Portfolio. The Sub-Advisor shall
maintain records adequate to demonstrate compliance with the requirements of
this section. Subject to the policies as the Board of Trustees may
determine and consistent with Section 28(e) of the Securities Exchange Act of
1934, as amended, the Sub-Advisor shall have the right to follow a policy of
selecting brokers who furnish brokerage and research services to the Fund or to
the Sub-Advisor, and who charge a higher commission rate to the Fund than may
result when allocating brokerage solely on the basis of seeking the most
favorable price and execution. The Sub-Advisor shall determine in
good faith that such higher cost was reasonable in relation to the value of the
brokerage and research services provided and shall make reasonable reports
regarding such determination and description of the products and services
obtained if so requested by the Fund.
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The Advisor authorizes and empowers the
Sub-Advisor to direct the Custodian to open and maintain brokerage accounts for
securities and other property, including financial and commodity futures and
commodities and options thereon (all such accounts hereinafter called
“brokerage
accounts”) for and in the name of the Fund and to
execute for the Fund as its agent and attorney-in-fact standard customer
agreements with such broker or brokers as the Sub-Advisor shall select as
provided above. The Sub-Advisor may, using such of the securities and
other property in the Fund as the Sub-Advisor deems necessary or desirable,
direct the Custodian to deposit for the Fund original and maintenance brokerage
and margin deposits and otherwise direct payments of cash, cash equivalents and
securities and other property into such brokerage accounts and to such brokers
as the Sub-Advisor deems desirable or appropriate. The Sub-Advisor
shall cause all securities and other property purchased or sold for the Fund to
be settled at the place of business of the Custodian or as the Custodian shall
direct. All securities and other property of the Fund shall remain in
the direct or indirect custody of the Custodian. The Sub-Advisor
shall notify the Custodian as soon as practicable of the necessary information
to enable the Custodian to effect such purchases and sales.
The Sub-Advisor further shall have the
authority to instruct the Custodian (i) to pay cash for securities and other
property delivered to the Custodian for the Fund, (ii) to deliver securities and
other property against payment for the Fund, and (iii) to transfer assets and
funds to such brokerage accounts as the Sub-Advisor may designate, all
consistent with the powers, authorities and limitations set forth
herein. The Sub-Advisor shall not have authority to cause the
Custodian to deliver securities and other property, or pay cash to the
Sub-Advisor except as expressly provided herein.
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6.
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LIABILITY; STANDARD OF
CARE.
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The Sub-Advisor, its affiliates, agents
and employees, shall be indemnified by the Advisor against all liabilities,
losses or claims (including reasonable expenses arising out of defending such
liabilities, losses or claims):
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(a)
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arising from the Fund’s or the Advisor’s directions to the Sub-Advisor or
Custodian, or brokers, dealers or others with respect to the making,
retention or sale of any investment or reinvestment hereunder;
or
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(b)
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arising from the acts or omissions
of the Advisor, the Custodian or the Fund, their respective affiliates,
agents or employees;
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except for any such liability or loss
which is due to the gross
negligence, willful
misconduct, or lack of good faith of the Sub-Advisor, its affiliates, agents and
employees, or the Sub-Advisor’s reckless disregard of its duties and
obligations. The Sub-Advisor shall also be without liability
hereunder for any action taken or omitted by it in good faith and without
negligence.
The Sub-Advisor shall comply with all
applicable laws and regulations in the discharge of its duties under this
Agreement; shall comply with the investment policies, guidelines and
restrictions of the Fund; shall act at all times in the best interests of the
Fund; and shall discharge its duties with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent person acting
in a like capacity and familiar with such matters would use in the
conduct of a similar enterprise.
The Sub-Advisor shall not be deemed by
virtue of this Agreement to have made any representation or warranty that any
level of investment performance or level of investment results will be
achieved.
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7.
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TERM AND TERMINATION OF THIS
AGREEMENT; NO ASSIGNMENT
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(a) This Agreement shall go into effect as
to the Fund at the time at
the later of (i) the Fund
commences operations pursuant to an effective amendment to the Trust’s Registration Statement under the
Securities Act of 1933, as
amended; (2) the date of this Agreement; and shall remain in effect for a period
of two (2) years from the date of this Agreement, unless sooner terminated as
hereinafter provided. This Agreement shall continue in effect
thereafter for additional periods not exceeding one (l) year so long as such
continuation is approved for the Fund at least annually by (i) the Board of
Trustees 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. The terms
“majority of the outstanding voting
securities” and “interested persons” shall have the meanings as set forth in
the 1940 Act;
(b) This Agreement may be terminated by the
Trust on behalf of the Fund at any time without payment of any penalty, by the
Board of Trustees, by the Advisor, or by vote of a majority of the outstanding
voting securities of the Fund without the payment of any penalties, upon sixty
(60) days’ written notice to the Sub-Advisor, and
by the Sub-Advisor upon sixty (60) days’ written notice to the Fund and the
Advisor. In the event of a termination, the Sub-Advisor shall
cooperate in the orderly transfer of the Fund’s affairs and, at the request of the
Board of Trustees or the Advisor, transfer any and all books and records of the
Fund maintained by the Sub-Advisor on behalf of the Fund;
(c) This Agreement shall terminate
automatically in the event of any transfer or assignment thereof, as defined in
the 1940 Act; and
(d) This Agreement will also terminate in
the event that the Investment Advisory Agreement is
terminated.
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8. SERVICES NOT
EXCLUSIVE.
The services of the Sub-Advisor to the
Fund are not to be deemed exclusive and it shall be free to render similar
services to others so long as its services hereunder are not impaired
thereby. It is specifically understood that directors, officers and
employees of the Sub-Advisor and of its subsidiaries and affiliates may continue
to engage in providing portfolio management services and advice to other
investment advisory clients.
9. AGGREGATION OF
ORDERS.
Nothing in this Agreement shall preclude
the combination of orders for the sale or purchase of securities of the
Portfolio with those for other accounts managed by the Sub-Advisor or its
affiliates. When a security proposed to be purchased or sold for the
Portfolio is also to be purchased or sold for other accounts managed by the
Sub-Advisor at the same time, the Sub-Advisor may aggregate such orders and
shall allocate such purchases or sales on a pro-rata, rotating or other
equitable basis so as to avoid any one account being systematically preferred
over any other account.
10. NO BORROWING.
The Sub-Advisor agrees that neither it
nor any of its officers or employees shall borrow from the Fund or pledge or use
the Fund’s assets in connection with any
borrowing not directly for the Fund’s benefit. For this purpose, failure to
pay any amount due and payable to the Fund that has been billed to the
Sub-Advisor by the Fund for a period of more than thirty (30) days shall
constitute a borrowing.
11. AMENDMENT.
No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by all parties.
12. CONFIDENTIALITY
Subject
to the duty of the Advisor or Sub-Advisor to comply with applicable law,
including any demand of any regulatory or taxing authority having jurisdiction,
the parties hereto shall treat as confidential all non-public information
pertaining to the Fund and the actions of the Sub-Advisor and the Fund in
respect thereof. It is understood that any information or
recommendation supplied by the Sub-Advisor in connection with the performance of
its obligations hereunder is to be regarded as confidential and for use only by
the Advisor, the Fund or such persons as the Advisor may designate in connection
with the Fund. It is also understood that any information supplied to
the Sub-Advisor in connection with the performance of its obligations hereunder,
particularly, but not limited to, any list of investments which, on a temporary
basis, may not be bought or sold for the Fund, is to be regarded as confidential
and for use only by the Sub-Advisor in connection with its obligation to provide
investment advice and other services to the Fund. The parties
acknowledge and agree that all nonpublic personal information with regard to
shareholders in the Fund shall be deemed proprietary information of the Advisor,
and that the Sub-Advisor shall use that information solely in the performance of
its duties and obligations under this Agreement and shall takes reasonable steps
to safeguard the confidentiality of that information. Further, the
Sub-Advisor shall maintain and enforce adequate security procedures with respect
to all materials, records, documents and data relating to any of its
responsibilities pursuant to this Agreement including all means for the
effecting of investment transactions.
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13. USE
OF SUB-ADVISOR’S NAME
Sub-Advisor hereby grants to the Fund
and Advisor a non-exclusive, royalty-free, worldwide license to use the
Sub-Advisor’s name and logo in any and all promotional materials, prospectuses
and registration statements during the term of this Agreement. The
Fund shall furnish, or shall cause to be furnished, to the Sub-Advisor or its
designee, each piece of sales literature or other promotional material in which
the Sub-Advisor is named, at least ten (10) business days prior
to its use. The Sub-Advisor shall be permitted to review and approve
the material in written or electronic form prior to such printing. No
such material shall be used if the Sub-Advisor or its designee reasonably
objects to such use within ten (10) business days after receipt of this
material, such approval, may not be unreasonably withheld
14. ANTI-MONEY LAUNDERING
COMPLIANCE.
The Sub-Advisor acknowledges that, in
compliance with the Bank Secrecy Act, as amended, the USA PATRIOT Act, and any implementing
regulations thereunder (together, “AML Laws”), the Trust has adopted an Anti-Money
Laundering Policy. While the ongoing responsibility to monitor and
enforce the Trust’s Anti-Money Laundering Policy resides with the Trust and
Advisor, in order for the Trust, Advisor and the Fund’s administrator to fulfill
their obligations under the AML Laws, the Sub-Advisor agrees to reasonably
cooperate with the Trust’s Anti-Money Laundering Policy and the AML Laws as may
be reasonably requested, given the Sub-Advisor’s limited role and limited access
to information in this area.. The Trust may disclose information
regarding 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.
15. NOTICES.
Notices and other communications
required or permitted under this Agreement shall be in writing, shall be deemed
to be effectively delivered when actually received, and may be delivered by US
mail (first class, postage prepaid), by facsimile transmission, by hand or by
commercial overnight delivery service, addressed as follows:
| ADVISOR: |
Envestnet
Asset Management, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx
0000
Xxxxxxx, Xxxxxxxx 00000
Attn:
General
Counsel
|
| SUB-ADVISOR: |
Xxxxxxxxx
Xxxxxx Management LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
|
| FUND: |
On behalf
of the PMC
International Equity Fund
000 Xxxx
Xxxxxxxx Xxxxxx,
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn:
Xxxxxx X. Spearo
|
11
16. GOVERNING LAW.
This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Wisconsin 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 1940 Act and the Advisors Act and any rules and regulations
promulgated thereunder.
17. ASSIGNMENT.
This Agreement may not be assigned by
any party, either in whole or in part, without the prior written consent of each
other party.
IN WITNESS
WHEREOF, the parties hereto
have caused this Agreement to be executed as of the day first set forth
above.
Envestnet Asset Management,
Inc.
By: /s/ Xxxxxxx
X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Investment
Officer
Xxxxxxxxx Xxxxxx Management LLC
By: /s/ Xxxxx
Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice
President
12
SCHEDULE A
FEES
|
|
PMC Diversified Equity
Fund
|
|
|
40
bps on the first $50 million of current net assets of the
Portfolio
|
|
|
38
bps on the next $100 million of current net assets of the
Portfolio
|
|
|
35
bps on the assets thereafter
|
13
