Sub-Advisory Agreement The Timothy Plan
The Xxxxxxx Plan
THIS AGREEMENT is made and entered into as of the 26th day of September, 2013, by and between The Xxxxxxx Plan, a Delaware business trust (the “Trust”), Xxxxxxx Partners, Ltd., a Florida Limited Partnership and Investment Advisor to the Trust (the “Advisor”), and Xxxxx Investment Research, Inc., an Ohio Company (the “Investment Manager”).
WHEREAS, the Trust is an open-end management investment company, registered under the Investment Company Act of 1940, as amended (the “Act”) and authorized to issue an indefinite number of series of shares representing interests in separate investment portfolios (each referred to as a “Fund”); and
WHEREAS, the Trust presently issues fifteen Series as follows:
The Xxxxxxx Plan Aggressive Growth Fund
The Xxxxxxx Plan Small Cap Value Fund
The Xxxxxxx Plan Large/Mid Cap Value Fund
The Xxxxxxx Plan Large/Mid Cap Growth Fund
The Xxxxxxx Plan Fixed Income Fund
The Xxxxxxx Plan Defensive Strategies Fund
The Xxxxxxx Plan High Yield Bond Fund
The Xxxxxxx Plan International Fund
The Xxxxxxx Plan Emerging Markets Fund
The Xxxxxxx Plan Israel Common Values Fund
The Xxxxxxx Plan Growth and Income Fund
The Xxxxxxx Plan Strategic Growth Portfolio
The Xxxxxxx Plan Conservative Growth Portfolio
The Xxxxxxx Plan Conservative Growth Variable Portfolio
The Xxxxxxx Plan Strategic Growth Variable Portfolio; and
WHEREAS, Advisor is registered as an investment Advisor under the Investment Advisors Act of 1940, and engages in the business of asset management; and
WHEREAS, Investment Manager is registered as an investment Advisor under the Investment Advisors Act of 1940, and engages in the business of asset management; and
WHEREAS, the Trust has engaged Advisor to provide investment management services to the Funds listed above; and
WHEREAS, the Advisor desires to retain Investment Manager to render certain investment management services to the Xxxxxxx Plan Growth and Income Fund (the “Portfolio”), and Investment Manager is willing to render such services; and
WHEREAS, the Trust consents to the engagement of Investment Manager by Advisor.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
| 1. | Obligations of Investment Manager |
| (a) | Services. Investment Manager agrees to perform the following services (the “Services”) for the Portfolio: |
| (1) | manage the day-to-day investment and reinvestment of the Portfolio’s assets; |
| (2) | continuously review, supervise, and administer the investment program of the Portfolio; |
Investment Manager will promptly communicate to the officers and the directors of the Advisor and Trust such other information relating to Portfolio transactions as they may reasonably request.
| 3. | Compensation of Investment Manager. For its services rendered to the Portfolio, Advisor will pay to Investment Manager a fee at an annual rate equal to 0.42% of the Portfolio’s average daily assets up to $10 million, 0.40% for the next $5 million in average daily net assets, 0.35% for the next $10 million in average daily net assets, and 0.25% of average daily net assets over $25 million. |
The fees described above shall be computed daily based upon the net asset value of the Portfolio as determined by a valuation made in accordance with the Trust’s procedures for calculating Portfolio net asset value as described in the Trust’s currently effective Prospectus and/or Statement of Additional Information. During any period when the determination of the Portfolio’s net asset value is suspended by the trustees of the Trust, the net asset value of a share of the Portfolio as of the last business day prior to such suspension shall, for the purpose of this Paragraph 3, be deemed to be net asset value at the close of each succeeding business day until it is again determined.
The fees described above are annual fees, payable 1/12th monthly. Fees for Services rendered during any month will be paid within five (5) business days after the end of the month in which such Services were rendered. In the event that this Agreement is terminated prior to the end of a month in which Investment Manager is providing Services, Advisor shall pay to Investment Manager fees accumulated during that month to the date of termination within five (5) business days after the end of the month in which such Services were rendered. Investment Manager shall have no right to obtain compensation directly from the Portfolio or the Trust for Services provided hereunder and agrees to look solely to the Advisor for payment of fees due.
| 4. | Status of Investment Manager. The services of Investment Manager to the Trust are not to be deemed exclusive, and Investment Manager shall be free to render similar services to others. |
The Trust and Advisor agree that Investment Manager may give advice or exercise investment responsibility and take other action with respect to accounts of other clients which may differ from advice given or the timing or nature of action taken with respect to the Portfolio; provided that Investment Manager acts in good faith, and provided further that it is Investment Manager’s policy to allocate, within its reasonable discretion, investment opportunities to the Portfolio over a period of time on a fair and equitable basis relative to other client accounts, taking into account the investment objectives and policies of the Portfolio and any specific instructions applicable thereto.
In order to assist Investment Manager in performing the Services to the Portfolio, the Trust and/or Advisor may from time to time provide Investment Manager with information, documents, research or writings designated as proprietary by the Trust or the Advisor. Investment Manager agrees that, upon being informed that such information, documents, research or writings provided to it are deemed proprietary by the Trust and/or the Advisor, Investment Manager shall use such proprietary documents only to assist it in performing the Services to the Portfolio, and further agrees not to use, distribute, or publish, for its own benefit or for the benefit of others, information, documents, research or writings designated as proprietary by the Trust or the Advisor.
In rendering its Services to the Portfolio, Investment Manager shall be deemed to be an independent contractor. Unless expressly authorized or requested by the Trust, Investment Manager shall have no authority to act for or represent the Trust in any way other than as an independent contractor providing the Services described in this Agreement. The parties to this Agreement acknowledge and agree that the Trust may, from time to time, authorize Investment Manager to act for or represent the Trust under limited circumstance. In such circumstances, Investment Manager may be deemed to be an agent of the Trust. Except for those circumstances in which the Trust has specifically authorized Investment Manager to act for or represent the Trust, Investment Manager shall in no way be deemed an agent of the Trust.
Nothing in this Agreement shall limit or restrict the right of any director, officer or employee of Investment Manager 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.
It is understood that the name “ Xxxxx Investment Research, Inc.” and any derivatives associated with that name are the valuable property of the Investment Manager. Xxxxx understands and agrees that the Trust may use such name(s) in the
Portfolio’s Prospectus, Statement of Additional Information and other documents comprising the Registration Statement in order to satisfy the Trust’s disclosure requirements under federal law. The Trust and Advisor each understands and agrees that, except for material that presents all the Trust’s Portfolios, in sales literature and reports prepared for dissemination to shareholders of and prospective investors in the Portfolio, the Advisor and/or the Trust shall not make public any material containing such name(s) without first obtaining the written consent of the Investment Manager, which consent shall not unreasonably be withheld. Upon the termination of this Agreement, the Trust and/or Advisor shall forthwith cease to use such name(s).
| 5. | Permissible Interests. Trustees, agents, and stockholders of the Trust are or may be interested in Investment Manager (or any successor thereof) as directors, partners, officers, stockholders or otherwise, and directors, partners, officers, agents, and stockholders of Investment Manager are or may be interested in the Trust as trustees, stockholders or otherwise; and Advisor (or any successor) is or may be interested in the Trust as a stockholder or otherwise. |
| 6. | Liability of Investment Manager. Investment Manager assumes no responsibility under this Agreement other than to render the Services called for hereunder in good faith. Investment Manager shall not be liable for any error of judgment or for any loss suffered by the Trust 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 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. |
Advisor and the Trust agree to indemnify and defend Investment Manager, its officers, directors, and employees for any loss or expense (including reasonable attorney’s fees) arising out of or in connection with any action, suit or proceeding relating to any actual or alleged material misstatement or omission in the Fund’s registration statement, any proxy statement, or any communication to current or prospective investors in the Portfolio (other than any material misstatement or omission made in reliance upon and in conformity with written information furnished by Investment Manager to Advisor or the Portfolio).
| 7. | Representations of the Advisor and Investment Manager. Advisor represents that (a) a copy of the Trust’s Master Trust Agreement, together with all amendments thereto, is on file in the office of the Secretary of the State of Delaware; (b) a copy of the Trust’s currently effective prospectus and statement of additional information has been delivered to Investment Manager; (c) Advisor has acted and will continue to act in conformity with the Act and other applicable laws; (d) the appointment of Investment Manager has been duly authorized; and (d) Advisor is authorized to enter into this Agreement. |
Investment Manager represents that (a) a copy of the Trust’s currently effective prospectus and statement of additional information has been delivered to Investment Manager; (b) Investment Manager has acted and will continue to act in conformity with the Act and other applicable laws; and (c) Investment Manager is authorized to enter into this Agreement and to perform the Services described herein.
| 8. | Term. This Agreement shall remain in effect until October 01, 2015, and from year to year thereafter provided that such continuance is approved at least annually by (1) the vote of a majority of the Board of Trustees of the Trust or (2) a vote of a “majority” (as that term is defined in the Investment Company Act of 1940) of the Portfolio’s outstanding securities, provided that in either event the continuance is also approved by the vote of a majority of the trustees of the Trust who are not parties to this Agreement or “interested persons” (as defined in the Act) of any such party, which vote must be cast in person at meeting called for the purpose of voting on such approval; provided, however, that: |
| (a) | the Trust or Advisor may, at any time and without the payment of any penalty, terminate this Agreement upon 60 days written notice to Investment Manager; |
| (b) | the Agreement shall immediately terminate in the event of its assignment (within the meaning of the Act and the Rules thereunder); and |
| (c) | Investment Manager may terminate this Agreement without payment of penalty on 60 days written notice to the Trust; and |
| (d) | the terms of paragraph 6 of this Agreement shall survive the termination of this Agreement. |
| 9. | Notices. Except as otherwise provided in this Agreement, any notice or other communication required by or permitted to be given in connection with this Agreement will be in writing and will be delivered in person or sent by first class mail, postage prepaid or by prepaid overnight delivery service to the respective parties as follows: |
| (3) | determine, in its discretion, the securities to be purchased, retained or sold (and implement those decisions) by and for the Portfolio having due regard for any restrictions on such investments as set forth from time to time by the Advisor; |
| (4) | provide the Advisor with records concerning Investment Manager’s activities which the Trust is required to maintain; and |
| (5) | render regular reports to the Trust’s and/or Advisor’s officers and directors concerning Investment Manager’s discharge of the foregoing responsibilities. |
Investment Manager shall discharge the foregoing responsibilities subject to the overall control of the officers, directors, and trustees of the Advisor, in compliance with such policies as the Board of Trustees of the Trust may from time to time establish, in compliance with the objectives, policies, and limitations of the Portfolio as set forth in the Trust’s prospectus and statement of additional information, as amended from time to time, and with all applicable laws and regulations. The Advisor will provide Investment Manager with a copy of each registration statement relating to the Portfolio promptly after it has been filed with the Securities and Exchange Commission. All Services to be furnished by Investment Manager under this Agreement may be furnished through the medium of any directors, officers or employees of Investment Manager or through such other parties as Investment Manager may determine from time to time.
Investment Manager 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 in sufficient amounts and manner to perform the Services on the terms and for the compensation provided herein. Investment Manager may authorize and permit any of its officers, directors and employees to be elected as trustees or officers of the Trust and to serve in the capacities in which they are elected.
Unless expressly assumed under this Agreement by Investment Manager, the Trust and/or Advisor shall pay all costs and expenses normally incurred by the Portfolio in connection with the Trust’s operation and organization. To the extent Investment Manager incurs any cost by assuming expenses which are an obligation of the Advisor or Trust, the Advisor or Trust shall promptly reimburse Investment Manager for such costs and expenses.
| (b) | Books and Records. All books and records prepared and maintained by Investment Manager for the benefit of the Trust under this Agreement shall be the property of the Trust and, upon request there for. Investment Manager shall surrender to the Trust copies of such of the books and records so requested. The Trust acknowledges that Investment Manager is required to maintain books and records of its activities under the Investment Advisors Act of 1940, as amended, and agrees to allow Investment Manager to retain copies of such records of the Trust as required under federal law. Investment Manager agrees not to use any records of the Trust for any purpose other than for the provision of the Services to the Trust. However, Investment Manager may disclose the investment performance of the Portfolio, provided that such disclosure does not reveal the identity of Advisor, the Portfolio or the Trust. Investment Manager may disclose that Advisor, the Portfolio and the Trust are its clients. |
| 2. | Portfolio Transactions. Investment Manager is authorized to select the brokers or dealers that will execute purchases and sales of securities for the Portfolio and is directed to use commercially reasonable efforts to obtain the best net results as described in the Trust’s currently effective prospectus and statement of additional information. When Investment Manager deems the purchase or sale of a security to be in the best interest of the Portfolio as well as other clients of Investment Manager, Investment Manager, to the extent permitted by applicable laws and regulations, may, but shall be under no obligation to, aggregate the securities to be sold or purchased in order to obtain the best net results of lower brokerage commissions and efficient execution. In such event, allocation of the securities so purchased or sold, as well as the expenses incurred in the transaction, shall be made by Investment Manager in the manner Investment Manager considers to be the most equitable and consistent with its fiduciary obligations to the Portfolio and to such other clients. Further, the Trust has adopted procedures pursuant to Rules 17(a) and 17(e) under the Investment Company Act of 1940 relating to transactions among a Portfolio and affiliated person thereof (Rule 17(a)), and transactions between a Portfolio and an affiliated broker or dealer (Rule 17(e)). Investment Manager shall at all times conduct its activities in compliance with such procedures. Investment Manager shall prepare a report at the end of each fiscal quarter reporting on Investment Manager’s compliance with such procedures and setting forth in reasonable detail any transactions which were in violation of such procedures. |
| If to the Trust: |
If to the Advisor: |
If to the Investment Manager | ||
| The Xxxxxxx Plan | Xxxxxxx Partners, Ltd. | Xxxxx Investment Research, Inc. | ||
| 0000 Xxxxxxxx Xxxxxx Xxxxxxx | 0000 Xxxxxxxx Xxxxxx Xxxxxxx | XX Xxx 0 | ||
| Xxxxxxxx, XX 00000 | Xxxxxxxx, XX 00000 | Xxxxx, XX 00000 | ||
| Xxxxxx X. Ally | By: Covenant Funds, Inc. | Attn: Xxxxx Xxxxx, President | ||
| President | Copy to: General Counsel | |||
| Managing General Partner |
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| Xxxxxx X. Ally, President |
| 10. | Amendments; Entire Agreement. 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 Fund’s outstanding voting securities. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter contained herein and supersedes any prior agreement or understanding, whether written or oral. |
| 11. | Code of Ethics. Pursuant to Rule 17j-1 under the Act, Investment Manager warrants, covenants and agrees that it shall have submitted its Code of Ethics to the Board of Trustees of the Trust and obtained Board approval of such Code of Ethics prior to rendering any Services to the Portfolio. Investment Manager shall submit any material changes to such Code of Ethics to the Board of Trustees for its approval within six months of making such material change. Investment Manager further warrants, covenants and agrees to comply with all applicable reporting requirements mandated by Rule 17j -1 with respect to Codes of Ethics. A copy of Investment Manager’s current Code of Ethics is attached to this Agreement as Appendix 1 and incorporated herein for all purposes. |
| 12. | Proxy Voting. Except as specifically instructed by the Board of Trustees of the Trust or by the Advisor, Investment Manager shall exercise or procure the exercise of any voting rights attaching to investments of the Portfolio on behalf of the Portfolio. |
| 13. | Governing Law. This Agreement shall be governed and construed in accordance with the laws of the Stale of Florida without regard to any laws of conflict of such jurisdiction. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and the year first written above.
| The Xxxxxxx Plan | Xxxxxxx Partners, Ltd. | Xxxxx Investment Research, Inc. | ||||||||||
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| Xxxxxx X. Ally | Covenant Funds, Inc. | By. |
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| President | Managing General | Its: |
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| Partner, Xxxxxx X. | ||||||||||||
| Ally, President | ||||||||||||
