1
Exhibit d(ii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
INDEPENDENCE ONE MUTUAL FUNDS
SUB-ADVISORY AGREEMENT
THIS AGREEMENT is made between Independence One Capital Management
Corporation, a registered investment adviser (hereinafter referred to as
"Adviser") and Xxxxxxx Xxxxxxxx Corporation, an Illinois corporation located in
Chicago, Illinois (hereinafter referred to as the "Sub-Adviser").
WITNESSETH:
That the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Notice of Advice. Sub-Adviser hereby agrees to furnish to Adviser in its
capacity as investment adviser to the Independence One Equity Plus Fund (the
"Fund"), a portfolio of the Independence One Mutual Funds ("Trust"), such
investment advice, statistical and other factual information, as may from time
to time be reasonably requested by Adviser for the Fund, which may be offered in
one or more classes of shares ("Classes"). Sub-Adviser shall furnish such advice
and information to Adviser on a non-discretionary basis. Sub-Adviser shall not
have custody of any funds or securities of the Fund at any time.
2. Representations of Sub-Adviser. Sub-Adviser hereby represents to Adviser
that it is duly registered as an investment adviser with (a) the United States
Securities and Exchange Commission pursuant to the Investment Advisers Act of
1940, and (b) any state authorities with which such registration is necessary in
order to lawfully provide services pursuant to this Agreement. Sub-Adviser
hereby agrees to maintain such registrations in effect for so long as it
continues to provide services pursuant to this Agreement and to notify Adviser
immediately upon termination or revocation of any such registration during such
period.
3. Brokerage. Sub-Adviser may place orders for the execution of
transactions with or through such brokers-dealers (including floor brokers) or
banks as Adviser may select. Sub-Adviser may suggest broker-dealers or banks to
Adviser; however, Adviser will choose the broker-dealer or banks through which
Sub-Adviser may place orders. Any accounts opened with such broker-dealers or
banks shall be in the name of the Fund.
4. Records and Confirms. Sub-Adviser will send Adviser a record of the
investments and positions of the Fund (or relevant Classes of the Fund) as soon
as reasonably possible after the end of each quarterly period. Copies of
confirmations of transactions executed for the Fund will be sent by the
broker-dealers executing the transactions promptly to the custodian for the Fund
and the Sub-Adviser, if the custodian is other than the broker-dealer.
Otherwise, copies of confirmations of transactions executed will be sent by the
broker-dealers executing the transactions to
Sub-Adviser and the Fund. Sub-Adviser does not assume responsibility for the
accuracy of information furnished by Adviser or any other party.
5. Voting. Unless otherwise specifically agreed, Sub-Adviser will not be
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required to take any action, or render any advice, with respect to the voting of
securities held by the Fund.
6. Confidentiality. All information and advice furnished by either party
hereto to the other shall be treated as confidential and shall not be disclosed
to third parties, unless generally known or otherwise publicly available, and
except as required by regulatory agencies or otherwise by law.
7. Other Clients. Sub-Adviser acts as adviser to other clients and may give
advice, and take action, with respect to any of those which may differ from the
advice given, or the timing or nature of action taken, with respect to the Fund.
Sub-Adviser shall have no obligation to purchase or sell for the Fund, or to
recommend for purchase or sale by the Fund, any security which Sub-Adviser, its
principals, affiliates or employees may purchase or sell for themselves or for
any other clients. Except as otherwise required by law, Sub-Adviser shall not
make any information about the accounts of its clients available to Adviser or
the Fund.
Adviser recognizes that transactions in a specific security or securities
may not be accomplished for all client accounts at the same time or at the same
price.
In the performance of Sub-Adviser's services hereunder, Sub-Adviser shall
not be liable for any failure to recommend or effect any purchase or sale, or
other investment or trading strategy on the basis of any information known to
Sub-Adviser where the utilization of such information might, in Sub-Adviser's
opinion, constitute a violation of any federal or state law, rules or
regulations, or the breach of any fiduciary duty or confidential relationship
between Sub-Adviser and any other person or persons.
8. Adviser's Representations. Adviser represents that it has full authority
------------------------- to grant Sub-Adviser the authority given to
Sub-Adviser under this Agreement.
9. Fees. For its services under this Agreement, Sub-Adviser shall receive
---- from Adviser an annual fee ("the Sub-Advisory Fee"), as set forth on
Exhibit A attached hereto.
Notwithstanding any other provision of this Agreement, the Sub-Adviser may
from time to time and for such periods as it deems appropriate, reduce its
compensation (and, if appropriate, assume expenses of the Fund or Class of the
Fund) to the extent that the Fund's expenses exceed such expense limitation as
the sub-Adviser may, by notice to the Trust on behalf of the Fund, voluntarily
declare to be effective.
10. Term. This Agreement shall begin for the Fund on the date that the
parties execute this Agreement relating to such Fund and shall continue in
effect for the Fund for two years from the date of its execution and from year
to year thereafter, subject to the provisions for termination and all of the
other terms and conditions hereof if: (a) such continuation shall be
specifically approved at least annually by the vote of a majority of the
Trustees of the Trust, including a majority of the Trustees who are not parties
to this Agreement or interested persons of any such party (other than as
Trustees of the Trust) cast in person at a meeting called for that purpose; and
(b) Adviser shall not have notified the Trust in writing at least sixty (60)
days prior to the anniversary date of this Agreement in any year thereafter that
it does not desire such continuation with respect to the Fund.
11. Termination. Notwithstanding any provision in this Agreement, it may be
terminated at any time without the payment of any penalty: (a) by the Trustees
of the Trust or by a vote of a majority of the outstanding voting securities (as
defined in Section 2(a)(42) of the Investment Company Act of 1940 (the "Act"))
of the Fund on sixty (60) days' written notice to Adviser; and (b) by
Sub-Adviser or Adviser upon sixty (60) days' written notice to the other party
to the Agreement.
12. Automatic Termination. This Agreement shall automatically terminate:
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(a) in the event of its assignment (as defined in the Act); or
(b) in the event of termination of the Investment Contract between
the Trust and Adviser ("Investment Advisory Contract") for any
reason whatsoever.
13. Limitation Authority. Neither Adviser nor Sub-Adviser shall act as an
investment adviser (as such term is defined in the Act) to the Fund except as
provided herein and in the Investment Advisory Contract between the Adviser and
the Fund or in such other manner as may be expressly agreed between Adviser and
Sub-Adviser.
Provided, however, that if the Adviser or Sub-Adviser shall resign prior to
the end of any term of this Agreement or for any reason be unable or unwilling
to serve for a successive term which has been approved by the Trustees of the
Trust pursuant to the provisions of Paragraph 10 of this Agreement or Paragraph
6 of the Investment Advisory Contract, the remaining party, Sub-Adviser or
Adviser as the case may be, shall not be prohibited from serving as an
investment adviser to such Fund by reason of the provisions of this Paragraph
13.
14. Notices. Notices regarding termination or other matters of this
Agreement or other matters shall be sent by certified mail or overnight by a
nationally recognized courier and shall be deemed given when received at the
addresses specified below, or at such other address as a party to receive notice
may specify in a notice given in accordance with this provision. Sub-Adviser and
Adviser may rely on any notice from any person reasonably believed to be genuine
and authorized.
If to Sub-Adviser: If to Adviser:
Xxxxxxx Xxxxxxxx Corporation Independence One Capital
3304 North Lincoln Management Corporation
Xxxxxxx, Xxxxxxxx 00000 00000 Xxxxxxx Xxxx
Attention: Xxx Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
15. Indemnification. (a) (i) In any threatened, pending or completed
action, suit or proceeding to which the Sub-Adviser, was, is or is threatened to
be made a party, in connection with or relating to the services performed by the
Sub-Adviser for the Adviser or the Fund as contemplated herein, including,
without limitation, any breach of any representations, warranties or covenants
made by the Adviser in this Agreement or any failure by the Adviser to comply
with the federal or any state securities laws or the rules and regulations
promulgated thereunder or any other federal or state law, or any rule or
regulation promulgated by and governmental agency or self-regulatory
organization, Adviser shall indemnify and hold harmless the Sub-Adviser, against
any loss, liability, damage, cost and expense (including reasonable attorneys'
and accountants' fees and disbursements) incurred or suffered by the Sub-Adviser
in connection with the investigation, defense or settlement of any such action,
suit or proceeding, only if the acts or omissions of the Sub-Adviser, did not
involve willful misfeasance, gross negligence, bad faith or reckless disregard
of its duties and obligations under this Agreement; and (ii) In the event that
the Sub-Adviser is made a party to any claim, dispute or litigation or otherwise
incurs any loss or expense as a result of or in connection with the activities
or claimed activities of Adviser or its partners, officers, directors,
employees, agents or affiliates unrelated to the Sub-Adviser or the
Sub-Adviser's business, Adviser shall indemnify, defend and hold harmless the
Sub-Adviser against any loss, liability, damage, cost and expense (including,
without limitation, reasonable attorneys' and accountants' fees and
disbursements to be paid as incurred) incurred in connection therewith. As used
in subparagraphs (i) through (ii) above, the term "Sub-Adviser" shall include
the Sub-Adviser and the Sub-Adviser's directors, officers, shareholders,
employees, agents and affiliates.
(b) (i) In any threatened, pending or completed action, suit or proceeding
to which the Adviser, was, is or is threatened to be made a party, in connection
with or relating to the services performed by the Sub-Adviser for the Adviser or
the Fund as contemplate herein, including, without limitation, any breach of any
representations, warranties or covenants made by Sub-Adviser in this Agreement
or any failure by Sub-Adviser to comply with the federal or any state securities
laws or the rules and regulations promulgated thereunder or any other federal or
state law, or any rule or regulation promulgated by any governmental agency or
self-regulatory organization, Sub-Adviser shall indemnify and hold harmless the
Adviser, against any loss, liability, damage, cost and expense (including
reasonable attorneys' and accountants' fees and disbursements) incurred or
suffered by the Adviser in connection with the investigation, defense or
settlement of any such action, suit or proceeding, only of the acts or omissions
of the Adviser, did not involve willful misfeasance, gross negligence, bad faith
or reckless disregard of its duties and obligations under this Agreement; and
(ii) In the event that the Adviser is made a party to any claim, dispute or
litigation or otherwise incurs any loss or expense as a result of or in
connection with the activities or claimed activities of Sub-Adviser or its
officers, directors, employees, agents or affiliates unrelated to the Adviser or
the Adviser's business, Sub-Adviser shall indemnify, defend and hold harmless
the Adviser against any loss, liability, damage, cost and expense (including,
without limitation, reasonable attorneys' and accountants' fees and
disbursements to be paid as incurred) incurred in connection therewith. As used
in subparagraphs (i) through (ii) above, the term "Adviser" shall include the
Adviser and the Adviser's directors, officers, shareholders, employees, agents
and affiliates.
(c) In the event that a person entitled to indemnification under Sections
15 (a) or (b) is made a party to an action, suit or proceeding alleging both
matters for which indemnification can be made hereunder and matters for which
indemnification may not be made hereunder, such person shall be indemnified only
for that portion of the loss, liability, damage, cost or expense incurred in
such action, suit or proceeding which relates to the matters for which
indemnification can be made.
(d) None of the indemnifications contained in this Section 15 shall be
applicable with respect to default judgments, confessions of judgment or
settlements entered into by the part(ies) claiming indemnification without the
prior written consent of the party obligated to indemnify such party.
(e) The provisions of this Section 15 shall survive the termination or
other expiration of this Agreement.
16. Independent Contractors. The Sub-Adviser shall for all purposes herein
be deemed to be an independent contractor of Adviser. It is expressly agreed to
by the parties hereto that the relationship created by this Agreement does not
create a partnership or joint venture between the Sub-Adviser and the Adviser.
Except as specifically set forth herein with respect to the Sub-Adviser's
authority to place orders approved by the Adviser to broker-dealers or banks for
trading the accounts of the Fund, neither party shall have any authority to bind
the other nor shall either party represent to third parties that it has such
authority.
17. Liability. Neither the Sub-Adviser nor any of its agents, employees,
principals, directors or officers or any person who controls the Sub-Adviser
shall be liable to Adviser or its officers, directors, partners, employees,
agents or any person who controls Adviser or any of its successors. or assigns
under this Agreement, except by reason of acts or omissions in contravention of
this Agreement due to willful misfeasance, gross negligence, bad faith, reckless
disregard of its duties and obligations under this Agreement, or violation of
applicable law. Adviser acknowledges that all transactions made by the
Sub-Adviser on behalf of the Fund, shall be for the account and risk of the
Fund. The Sub-Adviser shall have no responsibility for the execution or
clearance of the Fund's trades once orders have been transmitted to the
executing broker-dealer or bank for those trades. Notwithstanding the foregoing
sentences, the federal securities laws impose liabilities under certain
circumstances on persons who act in good faith and therefore, nothing herein
shall in any way constitute a waiver or limitation of any rights which Adviser
may have under the federal securities laws or state securities laws.
18. Disclosure.
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[ ] Adviser acknowledges receipt of Sub-Adviser's Disclosure Statement
(Part II of Adviser's Form ADV), as required by Rule 204-3 under the Investment
Advisers Act of 1940, not less than 48 hours prior to the date of execution of
this agreement shown below.
[ ] Adviser acknowledges receipt of Sub-Adviser's Disclosure Statement
(Part II of Adviser's Form ADV) less than 48 hours prior to, but not later than,
the date of execution of this agreement. Accordingly, Adviser shall have the
option to terminate this agreement without penalty within five business days
after that date of execution; provided, however, that any investment action
taken by Adviser with respect to the Fund prior to the effective date of such
termination shall be at Fund's risk.
19. Entire Agreement: Governing Law. This agreement constitutes the entire
------------------------------- agreement of the parties with respect to the
rendering of advice by Sub-Adviser for the benefit of Adviser and the Fund and
can be amended only by written document signed by the parties. This agreement
shall be governed by the internal laws of the State of Illinois.
20. Amendment. This Agreement may be amended from time to time by agreement
of the parties hereto provided that such amendment shall be approved both by the
vote of a majority of Trustees of the Trust, including a majority of Trustees
who are not parties to this Agreement or interested persons, as defined in
Section 2(a)(19) of the Act, of any such party at a meeting called for that
purpose, and, where required by Section 15(a)(2) of the Act, by the holders of a
majority of the outstanding voting securities (as defined in Section 2(a)(42) of
the Act) of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by their duly authorized officers, and their corporate
seals affixed hereto this 9th day of March, 2000.
ATTEST: INDEPENDENCE ONE CAPITAL
MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx __
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Secretary Director, Investment Services
Xxxxx Xxxx Xxxxxx X. Xxxxxxxxx
XXXXXXX XXXXXXXX CORPORATION
/s/ Xxxxx X. Sheridan__________
By: /s/ Xxxxx Sheridan___________
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Secretary Vice President
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
Exhibit A
Independence One Mutual Funds
Independence One Equity Plus Fund
Sub-Advisory Agreement
Adviser will pay Sub-Adviser as full compensation for services rendered
hereunder, an annual fee at the rate of 0.035%, based on the average daily value
of the equity securities in the Fund. The fee shall be calculated as determined
by the Fund on the last day of each month on which the New York Stock Exchange
is open and shall be payable on a monthly basis, in arrears.
This Exhibit duly incorporates by reference the Sub-Advisory Agreement.
Adviser:
/s/ RJS____
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(initials)
Sub-Adviser:
/s/ SDS
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(initials)
