INVESTMENT SUB-ADVISORY AGREEMENT
This Investment Sub-Advisory Agreement (“Agreement”) is made and entered into as of March 12, 2019, by and between
OBP Capital, LLC, a Delaware limited liability company (“Advisor”) and Merlin Capital, LLC, a New York limited liability company (“Sub-Advisor”).
WHEREAS,
the Advisor acts as the investment advisor to The Cannabis ETF (the “Fund”), a series of the Spinnaker ETF Series (the “Trust”), pursuant to that certain Investment Advisory Agreement, dated March 12, 2019, between the Advisor and the Trust with
respect to the Fund (“Advisory Agreement”);
WHEREAS,
the Trust is an open-end management investment company, registered under the Investment Company Act of 1940, as amended (the “Act”);
WHEREAS,
the Trust is authorized to issue separate series, each of which will offer a separate class of shares of beneficial interest, each series having its own investment objective or objectives, policies, and limitations;
WHEREAS,
the Trust offers shares in multiple series, may offer shares of additional series in the future, and intends to offer shares of additional series in the future;
WHEREAS,
each of the Advisor and Sub-Advisor is registered as an investment advisor under the Investment Advisers Act of 1940, as amended (“Advisers Act”), and engages in the business of asset management; and
WHEREAS,
the Advisor, subject to the approval of the Board of Trustees of the Trust (“Trustees”), desires to retain the Sub-Advisor to assist the Advisor in rendering certain investment management services to the Fund, and the Sub-Advisor is willing to render
such services;
WHEREAS,
the Trustees, including a majority of those Trustees who are not parties to this Agreement or interested persons (as such term is defined in the 0000 Xxx) of any such party, by a vote cast in person at a meeting called for the purpose of voting on
such approval have approved this Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
1. Engagement and Obligations of Sub-Advisor. The Advisor hereby appoints and retains the Sub-Advisor to act as a sub-advisor to the Advisor and to provide the following services for the period and on the terms and conditions set forth in this Agreement.
(a) Services. The Sub-Advisor agrees to perform the following services (the “Services”):
i. subject to the supervision of the Trustees and the Advisor, the Sub-Advisor will provide a continuous investment program for
the Fund’s portfolio and determine the composition of the assets of the Fund’s portfolio, including determination of the purchase, retention, or sale of the securities, cash, and other investments contained in the Fund’s portfolio;
ii. select brokers and dealers to execute the purchase and/or sale, consistent with the Sub-Advisor's duty to seek "best execution"
on behalf of the Fund, of portfolio securities of the Fund;
iii. provide the Advisor and the Fund with such records concerning the Sub-Advisor’s activities under this Agreement as the Advisor
and the Fund may request from time to time or as otherwise required by applicable law; and
iv. render regular reports to the Advisor and the Trustees concerning the Sub-Advisor’s discharge of the foregoing
responsibilities.
The Sub-Advisor shall discharge the foregoing responsibilities subject to the control of the Trustees and officers
of the Fund and in compliance with (i) such policies as the Trustees may from time to time establish; (ii) the Fund’s objectives, policies, and limitations as set forth in its prospectus (“Prospectus”), as the same may be amended from time to time;
and (iii) with all applicable laws and regulations. All Services to be furnished by the Sub-Advisor under this Agreement may be furnished through the medium of any directors, officers or employees of the Sub-Advisor or through such other parties as
the Sub-Advisor may determine from time to time.
(b) Expenses and Personnel. The Sub-Advisor agrees, at its own expense or at the expense of one or more of its affiliates, to
render the Services and to provide the office space, furnishings, equipment and personnel as may be reasonably required to perform the Services on the terms and for the compensation provided herein.
(c) Books and Records. All books and records prepared and maintained by the Sub-Advisor for the Advisor and/or the Fund under this Agreement shall be the property of the
Advisor and/or the Fund and, upon request therefor, the Sub-Advisor shall surrender to the appropriate party such of the books and records so requested.
2. Compensation of the Sub-Advisor. The Advisor will pay to the Sub-Advisor an investment advisory fee (the “Fee”) equal to an annualized
rate of 0.03% of the average daily net assets of the Fund. The Fee shall be calculated as of the last business day of each month based upon the average daily net assets of the Fund determined in the manner described in the Fund’s Prospectus and/or
Statement of Additional Information, and shall be paid to the Sub-Advisor by the Advisor on a quarterly basis within a specified period of time at the conclusion of each quarter as agreed to between the Advisor and Sub-Advisor. The Fund will not pay
a direct fee to the Sub-Advisor.
3. Status of Investment Sub-Advisor. The services of the Sub-Advisor to the Advisor, and the Fund are not to be deemed exclusive, and the
Sub-Advisor shall be free to render similar services to others (including, without limitation, any other registered investment management company, or series thereof) so long as its Services to the Fund are not impaired thereby. The Sub-Advisor shall
be deemed to be an independent contractor and shall, unless otherwise expressly provided or authorized, have no authority to act for or represent the Advisor or the Fund in any way or otherwise be deemed an agent of the Advisor or the Fund. Nothing
in this Agreement shall limit or restrict the right of any director, officer or employee of the Sub-Advisor, who may also be a trustee, officer or employee of the Advisor or the Fund, to engage in any other business or to devote his or her time and
attention in part to the management or other aspects of any other business, whether of a similar nature or a dissimilar nature.
4. Permissible Interests. Trustees, agents, and stockholders of the Fund and the Advisor are or may be interested in the Sub-Advisor (or any
successor thereof) as directors, partners, officers, or stockholders, or otherwise; and directors, partners, officers, agents, and stockholders of the Sub-Advisor are or may be interested in the Advisor or the Fund as trustees, directors, officers,
stockholders or otherwise; and the Sub-Advisor (or any successor) is or may be interested in the Advisor or the Fund as a stockholder or otherwise.
5. Limits of Liability; Indemnification. The Sub-Advisor assumes no responsibility under this Agreement other than to render the Services
called for hereunder. The Sub-Advisor shall not be liable for any error of judgment or for any loss suffered by the Advisor or the Fund in connection with the matters to which this Agreement relates, except a loss resulting from a breach of
fiduciary duty with respect to receipt of compensation for services (in which case any award of damages shall be limited to the period and the amount set forth in Section 36(b)(3) of the Act) or a loss resulting from willful misfeasance, bad faith or
gross negligence on its part in the performance of, or from reckless disregard by it of its obligations and duties under, this Agreement. It is agreed that the Sub-Advisor shall have no responsibility or liability for the accuracy or completeness of
the Trust’s registration statement under the Act or the Securities Act of 1933, as amended (“1933 Act”), except for information supplied by the Sub-Advisor for inclusion therein.
The Sub-Advisor will indemnify the Advisor and its directors, members, partners, officers,
employees and agents (“Advisor Parties”) against and hold the Advisor Parties harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) arising from any claim, demand, action or suit
which results from the Sub-Advisor Parties’ (as such term is defined immediately below) willful misfeasance, bad faith, gross negligence or reckless disregard of the Sub-Advisor's obligations and duties under this Agreement.
The Advisor will indemnify the Sub-Advisor and its directors, members, partners, officers,
employees and agents (“Sub-Advisor Parties”) against and hold the Sub-Advisor Parties harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) arising from any claim, demand, action
or suit which results from the Advisor Parties' willful misfeasance, bad faith, gross negligence or reckless disregard of the Advisor's obligations and duties under this Agreement.
6. Term. This Agreement shall remain in effect for an initial term of two years from the date the Fund commences operations, and from year
to year thereafter provided such continuance is approved at least annually by the vote of a majority of the trustees of the Fund who are not “interested persons” (as defined in the Act) of the Fund, which vote must be cast in person at a meeting
called for the purpose of voting on such approval; provided, however,
this Agreement may be terminated at any time on at least 60 days prior written notice to the Sub-Advisor, without the payment of any penalty, (i) by vote of the Trustees or (ii) by vote of a majority of the outstanding voting securities (as defined
in the Act) of the Fund; and provided, further,
that this Agreement may be terminated at any time by the Advisor, on at least 60 days prior written notice to the Sub-Advisor, and subject to certain termination conditions as agreed to between the Advisor and Sub-Advisor. The Sub-Advisor may
terminate this Agreement at any time, without the payment of any penalty, on at least 60 days prior written notice to the Advisor and the Fund. This Agreement will automatically and immediately terminate in the event of its assignment (as defined in
the Act) or upon the termination of the Advisory Agreement.
7. Prohibited Conduct. The Sub-Advisor may not consult with any other sub-advisor of the Trust concerning transactions in securities or other assets for any investment portfolio of the Trust, including the Fund,
except that such consultations are permitted between the current and successor sub-advisor of the Fund in order to effect an orderly transition of portfolio management duties so long as such consultations are not concerning transactions prohibited by
Section 17(a) of the Act.
8. Use of Names.
(a) It is understood that the name “OBP Capital” or any derivative thereof or logo associated with that name is the valuable
property of the Advisor and/or its affiliates, and that the Sub-Advisor has the right to use such name (or derivative or logo) only with the approval of the Advisor and only so long as the Advisor is Advisor to the Trust and/or the Fund. Upon
termination of the Advisory Agreement between the Trust and the Advisor, the Trust or the Advisor shall notify the Sub-Advisor of the termination of the Advisory Agreement and the Sub-Advisor shall as soon as is reasonably possible cease to use such
name (or derivative or logo).
(b) It is understood that the names “Merlin Capital” or “Merlin Asset Management” or any derivative thereof or logos associated with those names are the valuable property of
the Sub-Advisor and its affiliates and that the Trust and/or the Fund have the right to use such names (or derivatives or logos) in offering materials of the Trust with the approval of the Sub-Advisor and for so long as the Sub-Advisor is a
sub-advisor to the Trust and/or the Fund. Upon termination of this Agreement between the Advisor, and the Sub-Advisor, the Trust shall as soon as is reasonably possible cease to use such names (or derivatives or logos).
9. Cooperation; Confidentiality. Each party to this Agreement agrees to cooperate with each other party and with all appropriate
governmental authorities having the requisite jurisdiction (including, but not limited to, the U.S. Securities and Exchange Commission (the "SEC") in connection with any investigation or inquiry relating to this Agreement or the Trust.
Subject to the foregoing, the Sub-Advisor shall treat as confidential all information
pertaining to the Trust and actions of the Trust, the Advisor and the Sub-Advisor, and the Advisor shall treat as confidential and use only in connection with the Fund all information furnished to the Trust or the Advisor by the Sub-Advisor, in
connection with its duties under the Agreement except that the aforesaid information need not be treated as confidential if required to be disclosed under Applicable Law or at the request of regulators or self-regulatory organizations, if generally
available to the public through means other than by disclosure by the Sub-Advisor or the Advisor, or if available from a source other than the Advisor, Sub-Advisor or the Trust. Notwithstanding any of the foregoing the Sub-Advisor may disclose
confidential information if specifically authorized by the Advisor or the Trust and the Advisor or the Trust may disclose confidential information if specifically authorized by the Sub-Advisor.
10. Amendments. No provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought, and no amendment of this Agreement shall be effective until approved by vote of the holders of a majority of the Trust’s outstanding
voting securities.
11. Applicable Law. This Agreement shall be construed in accordance with, and governed by, the substantive laws of the State of
North Carolina, without regard to the principles of the conflict of laws or the choice of laws, provided that nothing herein shall be construed in a manner
inconsistent with the Act, the Advisers Act or rules or orders of the SEC thereunder.
12. Representations and Warranties.
(a) Representations and Warranties of the Sub-Advisor. The Sub-Advisor hereby represents and warrants to the Advisor and the Fund as follows: (i) the Sub-Advisor is a limited
liability company duly organized and in good standing under the laws of the State of New York and is fully authorized to enter into this Agreement and carry out its duties and obligations hereunder; and (ii) the Sub-Advisor is registered as an
investment advisor with the SEC under the Advisers Act, and shall maintain such registration in effect at all times during the term of this Agreement.
(b) Representations and Warranties of the Advisor. The Advisor hereby represents and warrants to the Sub-Advisor as follows: (i) the Advisor is a limited liability company
duly organized and in good standing under the laws of the State of Delaware and is fully authorized to enter into this Agreement and carry out its duties and obligations hereunder; and (ii) the Advisor is registered as an investment advisor with the
SEC under the Advisers Act, and shall maintain such registration in effect at all times during the term of this Agreement.
13. Severability. If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby and, to this extent, the provisions of this Agreement shall be deemed to be severable.
14. Notice. Any
notice must be in writing and shall be deemed to have been given when (1) delivered in person, (2) dispatched by telegram or electric facsimile transfer (confirmed in writing by postage prepaid first class mail simultaneously dispatched), (3) sent by
internationally recognized overnight courier service (with receipt confirmed by such overnight courier service), or (4) sent by registered or certified mail, to the other party at the address of such party set forth below or at such other address as
such party may from time to time specify in writing to the other party.
If to the Trust:
Attn: Legal Department
000 X Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
If to the Advisor:
OBP Capital, LLC
Attn: Xxxxxxxxx X. Honey, Managing Member
000 X Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
If to the Sub-Advisor:
Merlin Asset Management
Attn: Xxxxxxx Xxxxxxxxxx, Ph.D.
Xxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
15. Notice of Certain Changes in Sub-Advisor. The Sub-Advisor is hereby
obligated to notify the Fund and Advisor if there is a material change in the Sub-Advisor’s equity ownership, whether, as the case may be, of members, shareholders, general or limited partners, or senior executive personnel, within a reasonable time
after such change takes place.
16. Miscellaneous.
(a) The term “affiliate” or “affiliated person” as used in this Agreement shall mean “affiliated person” as defined in Section 2(a)(3) of the Act.
(b) The captions of this Agreement are included for convenience only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.
(c) If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement shall not be affected thereby,
and to this extent, the provisions of this Agreement shall be deemed to be severable.
(d) Nothing herein shall be construed as constituting the Sub-Advisor as an agent of the Advisor or constituting the Advisor as an agent of the Sub-Advisor.
(e) The Advisor and the Sub-Advisor each affirm that it has procedures in place reasonably designed to protect the privacy of non-public personal consumer/customer financial
information.
(f) The Trust, the Advisor and the Sub-Advisor acknowledge that each may have obligations under the laws and regulations of the United States to verify the source of funds and
identity of investors in accordance with the USA Patriot Act, and any rules or regulations adopted thereunder (collectively the “Patriot Act”). Each party agrees to assist the other parties in monitoring transactions in accordance with the Patriot
Act. If required by applicable law or regulation, each party shall provide the other parties with documentation evidencing the identity of a beneficial owner or owners of shares of the Fund upon request when a party is required by a law, court
order, or by administrative or regulatory entity to disclose the identity of the beneficial owner(s).
(g) This Agreement may be executed in counterparts.
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed as of the day and the year first written above.
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INVESTMENT ADVISOR
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OBP CAPITAL, LLC
/s/ Xxxxxxxxx X. Honey
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| By: Xxxxxxxxx X. Honey |
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| Title: Managing Member |
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INVESTMENT SUB-ADVISOR
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MERLIN CAPITAL, LLC
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| /s/ Xxxxxxx Xxxxxxxxxx By: Xxxxxxx Xxxxxxxxxx
Title: Managing Member
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