SUB-ADVISORY AGREEMENT
AGREEMENT made as of the 15th day of June, 2004, by and between AssetMark
Investment Services, Inc., a California corporation (the "Advisor"), and Xxxxxxx
Xxxxx Asset Management, L.P., a Delaware limited partnership (the
"Sub-Advisor").
WHEREAS, the Advisor and the Sub-Advisor are registered investment advisers
under the Investment Advisers Act of 1940, as amended (the "Advisers Act") and
engage in the business of providing investment management services; and
WHEREAS, the Advisor has been retained to act as investment adviser
pursuant to an Investment Advisory Agreement dated May 11, 2001 (the "Advisory
Agreement") with AssetMark Funds (the "Trust"), a Delaware statutory trust
registered with the U.S. Securities and Exchange Commission (the "SEC") as an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act"), currently consisting of several separate series of
shares, each having its own investment objectives and policies and which is
authorized to create more series; and
WHEREAS, the Advisory Agreement permits the Advisor, subject to the
supervision and direction of the Trust's Board of Trustees, to delegate certain
of its duties under the Advisory Agreement to other investment advisers, subject
to the requirements of the 1940 Act; and
WHEREAS, the Advisor desires to retain Sub-Advisor to assist it in the
provision of a continuous investment program for that portion of one or more of
the Trust's series' (each a "Fund") assets which the Advisor will assign to the
Sub-Advisor (the "Sub-Advisor Assets"), and the Sub-Advisor is willing to render
such services subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of mutual covenants recited below, the
parties agree and promise as follows:
1. Appointment as Sub-Advisor. The Advisor hereby appoints the Sub-Advisor
to act as investment adviser for and to manage the Sub-Advisor Assets, subject
to the supervision of the Advisor and the Board of Trustees of, the Trust and
subject to the terms of this Agreement; and the Sub-Advisor hereby accepts such
appointment. In such capacity, the Sub-Advisor shall be responsible for the
investment management of the Sub-Advisor Assets. The Sub-Advisor agrees to
exercise the same skill and care in performing its services under this Agreement
as the Sub-Advisor exercises in performing similar services with respect to
other fiduciary accounts for which the Sub-Advisor has investment
responsibilities.
2. Duties of Sub-Advisor.
(a) Investments. The Sub-Advisor is hereby authorized and directed and
hereby agrees, subject to the stated investment objectives, policies and
restrictions of each Fund as set forth in such Fund's prospectus and
statement of additional information as currently in effect and as
supplemented or amended from time to time (collectively referred to as the
"Prospectus") and subject to the directions of the Advisor and the Trust's
Board of Trustees, to purchase, hold and sell investments for the
Sub-Advisor Assets and to monitor such investments on an ongoing basis to
ensure that the investments continue to be appropriate. In providing these
services, the Sub-Advisor will conduct an ongoing program of investment,
evaluation and, if appropriate, sale and reinvestment of the Sub-Advisor
Assets. The Advisor agrees to provide the Sub-Advisor information
concerning a Fund, its assets available or to become available for
investment, and generally as to the conditions of a Fund's or the Trust's
affairs.
(b) Compliance with Applicable Laws and Governing Documents. In the
performance of its duties and obligations under this Agreement, the
Sub-Advisor shall with respect to Sub-Advisor Assets, act in conformity
with the Trust's Declaration of Trust and By-Laws, the Prospectus(es), and
with the instructions and directions received in writing from the Advisor
or the Trustees of the Trust and will conform to and comply with the
requirements of the 1940 Act, the Advisers Act, and all other federal laws
applicable to registered investment companies and Sub-Advisors duties under
this Agreement. The Advisor will provide the Sub-Advisor with a copy of the
minutes of the meetings of the Board of Trustees of the Trust to the extent
they may affect a Fund or the duties of the Sub-Advisor, and with the
copies of any financial statements or reports made by a Fund to its
shareholders, and any further materials or information which the
Sub-Advisor may reasonably request to enable it to perform its functions
under this Agreement.
The Advisor will provide the Sub-Advisor with reasonable advance
notice, in writing, of any change in a Fund's investment objectives,
policies and restrictions as stated in the Prospectus, or any change to the
Trust's Declaration of Trust or By-Laws and the Sub-Advisor shall, in the
performance of its duties and obligations under this Agreement, manage the
Sub-Advisor Assets consistent with such changes, provided the Sub-Advisor
has received such prior notice of the effectiveness of such changes from
the Trust or the Advisor. In addition to such notice, the Advisor shall
provide to the Sub-Advisor a copy of a modified Prospectus reflecting such
changes. The Sub-Advisor hereby agrees to provide to the Advisor in a
timely manner, in writing, such information relating to the Sub-Advisor and
its relationship to, and actions for, a Fund as may be required to be
contained in the Prospectus or in the Trust's registration statement on
Form N-1A.
(c) Voting of Proxies. The Sub-Advisor shall have the power to vote,
either in person or by proxy, all securities in which the Sub-Advisor
Assets may be invested from time to time, and shall not be required to seek
instructions from the Advisor, the Trust or a Fund. At the request of the
Trust, the Sub-Advisor shall provide its recommendations as to the voting
of such proxies. The Sub-Advisor shall also provide its Proxy Voting Policy
(the "Policy") and will provide the Advisor with any material amendment to
the Policy within a reasonable time after such amendment has taken effect.
If both the Sub-Advisor and another entity managing assets of a Fund have
invested in the same security, the Sub-Advisor and such other entity will
each have the power to vote its pro rata share of the security.
(d) Agent. Subject to any other written instructions of the Advisor or
the Trust, the Sub-Advisor is hereby appointed the Advisor's and the
Trust's agent and attorney-in-fact for the limited purposes of executing
account documentation, agreements, contracts and other documents as the
Sub-Advisor shall be requested by brokers, dealers, counterparties and
other persons in connection with its management of the Sub-Advisor Assets,
provided that, the Sub-Advisor's actions in executing such documents shall
comply with federal regulations, all other federal laws applicable to
registered investment companies and Sub-Advisors duties under this
Agreement and the Trust's governing documents.
(e) Brokerage. The Sub-Advisor will place orders pursuant to the
Sub-Advisor's investment determinations for a Fund either directly with the
issuer or with any broker or dealer. In executing portfolio transactions
and selecting brokers or dealers, the Sub-Advisor will use its best efforts
to seek on behalf of a Fund the best overall execution available. In
assessing the best overall terms available for any transaction, the
Sub-Advisor shall consider all factors that it deems relevant, including
the breadth of the market in the security, the price of the security, the
financial condition and execution capability of the broker or dealer, and
the reasonableness of the commission, if any, both for the specific
transaction and on a continuing basis. In evaluating the best overall terms
available, and in selecting the broker-dealer to execute a particular
transaction the Sub-Advisor may also consider the brokerage and research
services (as those terms are defined in Section 28(e) of the Securities
Exchange Act of 1934, as amended) provided to a Fund and/or other accounts
over which the Sub-Advisor may exercise investment discretion. The
Sub-Advisor is authorized, subject to the prior approval of the Trust's
Board of Trustees, to pay to a broker or dealer who provides such brokerage
and research services a commission for executing a portfolio transaction
for any of the Funds that is in excess of the amount of commission another
broker or dealer would have charged for effecting that transaction if, but
only if, the Sub-Advisor determines in good faith that such commission was
reasonable in relation to the value of the brokerage and research services
provided by such broker or dealer , viewed in terms of that particular
transaction or in terms of the overall responsibilities of the Sub-Advisor
to a Fund. In addition, the Sub-Advisor is authorized to allocate purchase
and sale orders for portfolio securities to brokers or dealers (including
brokers and dealers that are affiliated with the Advisor, the Sub-Advisor,
the Trust's principal underwriter, or other sub-advisors) if the
Sub-Advisor believes that the quality of the transaction and the commission
are comparable to what they would be with other qualified firms, and
provided that the transactions are consistent with the Trust's 17e-1 and
10f-3 procedures. The Advisor has identified all broker-dealers affiliated
with either the Trust or Advisor (or the other Sub-Advisors of the Fund, to
the extent such information is necessary for the Sub-Advisor to comply with
applicable federal securities laws), other than those whose sole business
is the distribution of mutual fund shares, who effect securities
transactions for customers. Advisor shall promptly furnish a written notice
to Sub-Advisor if the information so provided is no longer accurate. The
Sub-Advisor shall not bear any responsibility and shall be released from
any obligation or cost which results from entering into a trade that, but
for Advisor's failure to notify the Sub-Advisor of an affiliated
relationship, would have been effected pursuant to Rule 17a-7, Rule 17e-1
or Rule 10f-3.
The Sub-Advisor acknowledges that the Advisor and Trust intend to rely
on Rule 17a-7, Rule 17a-10, Rule 10f-3, Rule 12d3-1 and Rule 17e-1 under
the 1940 Act, and the Sub-Advisor hereby agrees that it shall not consult
with any other Sub-Advisor to the Trust with respect to transactions in
securities for the Sub-Advisor Assets or any other transactions of Trust
assets.
The Sub-Advisor is authorized to engage in transactions in which the
Sub-Advisor, or an affiliate of the Sub-Advisor, acts as a broker for both
the Fund and for another party on the other side of the transaction
("agency cross transactions"). The Sub-Advisor shall effect any such agency
cross transactions in compliance with Rule 206(3)-2 under the Advisers Act
and any other applicable provisions of federal securities laws and shall
provide the Advisor with periodic reports describing such agency cross
transactions that the Sub-Advisor's compliance with Rule 206(3)-2 and any
other applicable provisions of federal securities laws. By execution of
this agreement, the Advisor authorizes the Sub-Advisor or its affiliates to
engage in agency cross transactions, as described above. The Advisor may
revoke its consent at any time by written notice to the Sub-Advisor.
In connection with its management of the Sub-Advisor Assets and
consistent with its fiduciary obligation to the Sub-Advisor Assets and
other clients, the Sub-Advisor, to the extent permitted by applicable laws
and regulations, may, but shall be under no obligation to, aggregate the
securities or futures contracts to be sold or purchased in order to obtain
the most favorable price or lower brokerage commissions and efficient
execution. In such event, allocation of the securities or futures contracts
so purchased or sold, as well as the expenses incurred in the transaction,
will be made by the Sub-Advisor in the manner the Sub-Advisor considers to
be, over time, the most equitable and consistent with its fiduciary
obligations to the Sub-Advisor's Assets and to such other clients.
(f) Securities Transactions. In no instance, however, will any Fund's
portfolio securities be purchased from or sold to the Advisor, the
Sub-Advisor, the Trust's principal underwriter, or any affiliated person of
either the Trust, the Advisor, the Sub-Advisor or the Trust's principal
underwriter, acting as principal in the transaction, except to the extent
permitted by the SEC and the 1940 Act including section 17a-7 thereof.
The Sub-Advisor, including its Access Persons (as defined in
subsection (e) of Rule 17j-1 under the 1940 Act), agrees to observe and
comply with Rule 17j-1 and its Code of Ethics (which shall comply in all
material respects with Rule 17j-1), as the same may be amended from time to
time. On at least an annual basis, the Sub-Advisor will comply with the
reporting requirements of Rule 17j-1, which may include either (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
Sub-Advisor Assets, or (ii) identifying any violations which have occurred
with respect to the Sub-Advisor Assets and (iii) certifying that it has
adopted procedures reasonably necessary to prevent Access Persons from
violating the Sub-Advisor's Code of Ethics. The Sub-Advisor will also
submit its Code of Ethics for its initial approval by the Board of Trustees
and subsequently within six months of any material change of thereto.
(g) Books and Records. The Sub-Advisor shall maintain separate
detailed records of all matters pertaining to the Sub-Advisor Assets,
including, without limitation, brokerage and other records of all
securities transactions. Any records required to be maintained and
preserved pursuant to the provisions of Rule 31a-1 and Rule 31a-2
promulgated under the 1940 Act which are prepared or maintained by the
Sub-Advisor on behalf of the Trust are the property of the Trust and will
be surrendered promptly to the Trust on request. The Sub-Advisor further
agrees to preserve for the periods prescribed in Rule 31a-2 under the 1940
Act the records required to be maintained under Rule 31a-1 under the 1940
Act.
(h) Information Concerning Sub-Advisor Assets and the Sub-Advisor.
From time to time as the Advisor, and any consultants designated by the
Advisor, or the Trust may request, the Sub-Advisor will furnish the
requesting party reports on portfolio transactions and reports on
Sub-Advisor Assets held in the portfolio, all in such detail as the
Advisor, its consultant(s) or the Trust may reasonably request. The
Sub-Advisor also will inform the Advisor in a timely manner of material
changes in portfolio managers responsible for Sub-Advisor Assets, any
changes in the ownership or management of the Sub-Advisor, or of material
changes in the control of the Sub-Advisor. Upon reasonable request, the
Sub-Advisor will make available its officers and employees to meet with the
Trust's Board of Trustees to review the Sub-Advisor Assets.
Upon reasonable request from the Advisor, the Sub-Advisor (through a
qualified person) will reasonably assist the valuation committee of the
Trust or the Advisor in valuing securities of the Trust as may be required
from time to time, including making available information of which the
Sub-Advisor has knowledge related to the securities being valued; however,
Advisor and Trust acknowledge, that the Advisor or their pricing agents
shall assume all responsibility for valuation decisions.
The Sub-Advisor also will provide such information or perform such
additional acts as are customarily performed by a Sub-Advisor and may be
required for a Fund or the Advisor to comply with their respective
obligations under applicable federal securities laws, including, without
limitation, the 1940 Act, the Advisers Act, the Securities Act of 1933, as
amended (the "Securities Act") and any rule or regulation thereunder.
(i) Custody Arrangements. The Sub-Advisor shall on each business day
provide the Advisor, its consultant(s) and the Trust's custodian such
information as the Advisor and the Trust's custodian may reasonably request
relating to all transactions concerning the Sub-Advisor Assets.
(j) Historical Performance Information. To the extent agreed upon by
the parties, the Sub-Advisor will provide the Trust with historical
performance information on similarly managed investment companies or for
other accounts to be included in the Prospectus or for any other uses
permitted by applicable law.
3. Independent Contractor. In the performance of its duties hereunder, the
Sub-Advisor is and shall be an independent contractor and unless otherwise
expressly provided herein or otherwise authorized in writing, shall have no
authority to act for or represent a Fund, the Trust or the Advisor in any way or
otherwise be deemed an agent of a Fund, the Trust or the Advisor.
4. Services to Other Clients. Nothing herein contained shall limit the
freedom of Sub-Advisor or any affiliated person of Sub-Advisor to render
investment advisory, supervisory and other services to other investment
companies, to act as investment adviser or investment counselor to other
persons, firms or corporations or to engage in other business activities. It is
understood that Sub-Advisor may give advice and take action for its other
clients which may differ from advice given, or the timing or nature of action
taken, for a Fund. Sub-Advisor is not obligated to initiate transactions for a
Fund in any security which Sub-Advisor, its principals, affiliates or employees
may purchase or sell for its or their own accounts or other clients.
5. Expenses. During the term of this Agreement, Sub-Advisor will pay all
expenses incurred by it in connection with its activities under this Agreement
other than the costs of securities, commodities and other investments (including
brokerage commissions and other transaction charges, if any) purchased or
otherwise acquired, or sold or otherwise disposed of for a Fund. The Sub-Advisor
shall, at its sole expense, employ or associate itself with such persons as it
believes to be particularly fitted to assist it in the execution of its duties
under this Agreement. The Trust or the Advisor, as the case may be, shall
reimburse the Sub-Advisor for any expenses as may be reasonably incurred by the
Sub-Advisor, at the request of and on behalf of a Fund or the Advisor. The
Sub-Advisor shall keep and supply to the Trust and the Advisor reasonable
records of all such expenses.
6. Compensation. For the services provided and the expenses assumed with
respect to a Fund pursuant to this Agreement, the Sub-Advisor will be entitled
to the fee listed for the Fund(s) on Exhibit A. Such fees will be computed daily
and payable in arrears no later than the seventh (7th) business day following
the end of each month, from the Trust on behalf of the Fund(s), calculated at an
annual rate based on the Sub-Advisor Assets' average daily net assets.
If this Agreement is terminated prior to the end of any calendar month, the
fee shall be prorated for the portion of any month in which this Agreement is in
effect according to the proportion which the number of calendar days, during
which this Agreement is in effect, bears to the number of calendar days in the
month, and shall be payable within 10 days after the date of termination.
7. Representations and Warranties of the Sub-Advisor. The Sub-Advisor
represents and warrants to the Advisor and the Trust as follows:
(a) The Sub-Advisor is registered as an investment Advisor under the
Advisers Act;
(b) The Sub-Advisor is a Delaware limited partnership duly organized
and validly existing under the laws of the state of Delaware, with the
power to own and possess its assets and carry on its business as it is now
being conducted;
(c) The execution, delivery and performance by the Sub-Advisor of this
Agreement are within the Sub-Advisor's powers and have been duly authorized
by all necessary action on the part of its Board of Directors and no action
by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Sub-Advisor for the execution,
delivery and performance by the Sub-Advisor of this Agreement, and the
execution, delivery and performance by the Sub-Advisor of this Agreement do
not contravene or constitute a default under (i) any provision of
applicable law, rule or regulation, (ii) the Sub-Advisor's governing
instruments, or (iii) any agreement, judgment, injunction, order, decree or
other instrument binding upon the Sub-Advisor; and
(d) The Form ADV of the Sub-Advisor previously provided to the Advisor
(a copy of which is attached as Exhibit B to this Agreement) is a true and
complete copy of the form as currently filed with the SEC and the
information contained therein is accurate and complete in all material
respects and does not omit to state any material fact necessary in order to
make the statements made, in light of the circumstances under which they
are made, not misleading. The Sub-Advisor will promptly provide the Advisor
and the Trust with a complete copy of all subsequent amendments to its Form
ADV.
8. Representations and Warranties of the Advisor. The Advisor represents
and warrants to the Sub-Advisor and the Trust as follows:
(a) The Advisor is registered as an investment adviser under the
Advisers Act;
(b) The Advisor is a corporation duly organized and validly existing
under the laws of the State of California with the power to own and possess
its assets and carry on its business as it is now being conducted;
(c) The execution, delivery and performance by the Advisor of this
Agreement are within the Advisor's powers and have been duly authorized by
all necessary action on the part of its Board of Directors, and no action
by or in respect of, or filing with, any governmental body, agency or
official is required on the part of the Advisor for the execution, delivery
and performance by the Advisor of this Agreement, and the execution,
delivery and performance by the Advisor of this Agreement do not contravene
or constitute a default under (i) any provision of applicable law, rule or
regulation, (ii) the Advisor's governing instruments, or (iii) any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Advisor;
(d) The Form ADV of the Advisor as provided to the Sub-Advisor is a
true and complete copy of the form as currently filed with the SEC and the
information contained therein is accurate and complete in all material
respects and does not omit to state any material fact necessary in order to
make the statements made, in light of the circumstances under which they
were made, not misleading;
(e) The Advisor shall provide to the Sub-Advisor a complete copy of
each amendment to its for ADV.
(f) The Advisor acknowledges that it received a copy of the
Sub-Advisor's Form ADV (a copy of which is attached as Exhibit B) prior to
the execution of this Agreement; and
(g) The Advisor and the Trust have duly entered into the Advisory
Agreement pursuant to which the Trust authorized the Advisor to enter into
this Agreement.
(h) The Trust and the Adviser agree that the Sub-Adviser shall have no
responsibility or liability arising out of any non-compliance by the Fund
or the Adviser with anti-money laundering regulations. The Adviser hereby
certifies that the Adviser has implemented an anti-money laundering program
and a customer identification program ("CIP") that each comply with the
requirements of applicable law, including the Bank Secrecy Act and U.S.A.
PATRIOT of 2001 and the regulations promulgated thereunder, and that the
Adviser will perform the requirements of such programs with respect to the
investors in the Fund.
(i) The Advisor and the Trust have policies and procedures designed to
detect and deter disruptive trading practices, including "market timing",
and Advisor and Trust agree that they will continue to enforce and abide by
such policies and procedures, as amended from time to time, and comply with
all existing and future laws relating to such matters or to the purchase
and sale of interests in the Fund generally.
9. Survival of Representations and Warranties; Duty to Update Information.
All representations and warranties made by the Sub-Advisor and the Advisor
pursuant to Sections 6 and 7, respectively, shall survive for the duration of
this Agreement and the parties hereto shall promptly notify each other in
writing upon becoming aware that any of the foregoing representations and
warranties are no longer true.
10. Liability and Indemnification.
(a) Liability. The duties of the Sub-Advisor shall be confined to
those expressly set forth herein, with respect to the Sub-Advisor Assets.
The Sub-Advisor shall not be liable for any loss arising out of any
portfolio investment or disposition hereunder, except a loss resulting from
willful misfeasance, bad faith or negligence in the performance of its
duties, or by reason of reckless disregard of its obligations and duties
hereunder, except as may otherwise be provided under provisions of
applicable state law which cannot be waived or modified hereby. Under no
circumstances shall the Sub-Adviser be liable for any loss arising out of
any act or omission taken by another Sub-Advisor, or any other third party,
in respect of any portion of the Trust's assets not managed by the
Sub-Advisor pursuant to this Agreement.
(b) Indemnification. The Sub-Advisor shall indemnify the Advisor, the
Trust and each Fund, and their respective affiliates and controlling
persons (the "Sub-Adviser Indemnified Persons") for any liability and
expenses, including reasonable attorneys' fees, which the Advisor, the
Trust or a Fund and their respective affiliates and controlling persons may
sustain as a result of the Sub-Advisor's willful misfeasance, bad faith,
negligence, or reckless disregard of its duties hereunder; provided,
however, that the Sub-Advisor Indemnified Persons shall not be indemnified
for any liability or expenses which may be sustained as a result of the
Advisor's willful misfeasance, bad faith, negligence, or reckless disregard
of its duties hereunder.
The Advisor shall indemnify the Sub-Advisor, its affiliates and its
controlling persons (the "Advisor Indemnified Persons") for any liability
and expenses, including reasonable attorneys' fees, howsoever arising from,
or in connection with, the Advisor's breach of this Agreement or its
representations and warranties herein or as a result of the Advisor's
willful misfeasance, bad faith, negligence, reckless disregard of its
duties hereunder or violation of applicable law; provided, however, that
the Advisor Indemnified Persons shall not be indemnified for any liability
or expenses which may be sustained as a result of the Sub-Advisor's willful
misfeasance, bad faith, negligence, or reckless disregard of its duties
hereunder.
11. Duration and Termination.
(a) Duration. This Agreement, unless sooner terminated as provided
herein, shall for the Fund(s) listed on Exhibit A attached hereto remain in
effect from the date of execution (the "Effective Date."), until two years
from the Effective Date, and thereafter, for periods of one year so long as
such continuance thereafter is specifically approved at least annually (a)
by the vote of a majority of those Trustees of the Trust who are not
interested persons of any party to this Agreement, cast in person at a
meeting called for the purpose of voting on such approval, and (b) by the
Trustees of the Trust, or by the vote of a majority of the outstanding
voting securities of each Fund (except as such vote may be unnecessary
pursuant to relief granted by an exemptive order from the SEC). The
foregoing requirement that continuance of this Agreement be "specifically
approved at least annually" shall be construed in a manner consistent with
the 1940 Act and the rules and regulations thereunder.
(b) Termination. This Agreement may be terminated as to any Fund at
any time, without the payment of any penalty by: (1) the vote of a majority
of the Trustees of the Trust, the vote of a majority of the outstanding
voting securities of the Fund, or the Advisor, in each case, on not less
than 30 days nor more than 60 days written notice to the Sub-Advisor, or
(2) the Sub-Advisor on not less than 30 days nor more than 60 days written
notice to the Advisor and the Trust. This Agreement may also be terminated
as to any Fund at any time by any party hereto immediately upon written
notice to the other parties in the event of a breach of any provision to
this Agreement by any of the parties.
This Agreement shall not be assigned and shall terminate automatically
in the event of its assignment, except as provided otherwise by any rule,
Exemptive Relief, or No Action Letter provided or pursuant to the 1940 Act,
or upon the termination of the Advisory Agreement. In the event that there
is a proposed change in control of the Sub-Advisor which would act to
terminate this Agreement, if a vote of shareholders to approve continuation
of this Agreement is at that time deemed by counsel to the Trust to be
required by the 1940 Act or any rule or regulation thereunder, Sub-Advisor
agrees to assume all reasonable costs associated with soliciting
shareholders of the appropriate Fund(s) of the Trust, to approve
continuation of this Agreement. Such expenses include the costs of
preparation and mailing of a proxy statement, and of soliciting proxies.
This Agreement shall extend to and bind the heirs, executors,
administrators and successors of the parties hereto.
12. Amendment. This Agreement may be amended by mutual consent of the
parties, provided that the terms of any material amendment shall be approved by:
(a) the Trust's Board of Trustees and (b) the vote of a majority of those
Trustees of the Trust who are not interested persons of any party to this
Agreement cast in person at a meeting called for the purpose of voting on such
approval, if such approval is required by applicable law, and unless otherwise
permitted pursuant to exemptive relief granted by the SEC or No Action position
granted by the SEC or its staff, by a vote of the majority of a Fund's
outstanding securities.
13. Confidentiality. Subject to the duties of the Advisor, the Trust (and
each Fund), and the 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 information pertaining to a Fund and the
actions of the Sub-Advisor, the Advisor, the Trust, and a Fund in respect
thereof. In accordance with Section 248.11 of Regulation S-P ( 17 CFR
248.1-248.30), Sub-Advisor will not directly, or indirectly through an
affiliate, disclose any non-public personal information, except as permitted or
required by law , as defined in Reg. S-P, received from the Trust or the
Advisor, regarding any shareholder, to any person that is not affiliated with
the Trust or with Sub-Advisor, and, provided that, any such information
disclosed to an affiliate of Sub-Advisor shall be under the same limitations on
non-disclosure.
14. Use of Sub-Advisors Names. During the term of this Agreement, the
Advisor agrees to furnish the Sub-Advisor at its principal office all
prospectuses, proxy statements, reports to shareholders, sales literature or
other material prepared for distribution to shareholders of the Fund or the
public, which refer to the Sub-Advisor in any way, prior to use thereof and not
to use material without the Sub-Advisor's prior written approval. Sales
literature may be furnished to the Sub-Advisor hereunder by first-class or
overnight mail, facsimile transmission equipment or hand delivery.
It is understood that the name "Xxxxxxx, Xxxxx & Co." or "Xxxxxxx Sachs" or
any derivative thereof, and any tradename, trademark, trade device, service
xxxx, symbol or logo associated with those names, are the valuable property of
the Sub-Advisor or its affiliates and that the Adviser has the right to use to
such name (or derivative or logo), in offering materials or promotional or
sales-related materials of the Fund, only with the prior written approval of the
Sub-Advisor, such approval not to be unreasonably withheld, and for so long as
the Sub-Advisor is Sub-Advisor of the Fund. Notwithstanding the foregoing, the
Sub-Advisor's approval is not required when (i) previously approved materials
are re-issued with minor modifications, (ii) the Advisor and Sub-Advisor
identify materials which they jointly determine do not require the Sub-Advisor's
approval and (iii) used as required to be disclosed in the registration
statement of the Fund. Upon termination of this Agreement, the Fund and the
Advisor shall forthwith cease to use such name (or derivative or logo), although
the Advisor may continue to use such name (or derivative or logo) as permitted
by other then current Sub-Advisory agreements which the Advisor and Sub-Advisor
have executed.
15. Notice. Any notice, advice or report to be given pursuant to this
Agreement shall be deemed sufficient if delivered or mailed by registered,
certified or overnight mail, postage prepaid addressed by the party giving
notice to the other party at the last address furnished by the other party:
(a) If to the Advisor:
AssetMark Investment Services, Inc.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxx
(b) If to the Sub-Advisor:
Xxxxxxx Xxxxx Asset Management, L.P.
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
16. Governing Law. This Agreement shall be governed by the internal laws of
the State of Delaware, without regard to conflict of law principles; provided,
however that nothing herein shall be construed as being inconsistent with the
1940 Act. Where the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is altered by a rule, regulation or order of the
SEC, whether of special or general application, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
17. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to this Agreement's subject matter. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but such counterparts shall, together, constitute only one
instrument.
18. 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.
19. Certain Definitions. For the purposes of this Agreement and except as
otherwise provided herein, "interested person," "affiliated person,"
"affiliates," "controlling persons" and "assignment" shall have their respective
meanings as set forth in the 1940 Act, subject, however, to such exemptions as
may be granted by the SEC, and the term "Fund" or "Funds" shall refer to those
Fund(s) for which the Sub-Advisor provides investment management services and as
are listed on Exhibit A to this Agreement.
20. Captions. The captions herein are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
ADVISOR
ASSETMARK INVESTMENT SERVICES, INC.
By:__________________________________
Name: Xxxxxx X. Xxxxxx
Title: President
SUB-ADVISOR
By:__________________________________
Name: Xxxxx X. XxXxxxxx
Title: Managing Director
DRAFT
EXHIBIT A
SUBADVISORY AGREEMENT
BETWEEN ASSETMARK INVESTMENT SERVICES, INC.
AND XXXXXXX XXXXX ASSET MANAGEMENT, L.P.
June 15, 2004
AssetMark Core Plus Fixed Income Fund
FEE SCHEDULE
------------
ASSETS COMPENSATION
------ -------------
First $50 million 27.0 basis points
Next $50 million 22.5 basis points
Next $200 million 18.0 basis points
Next $200 million 13.5 basis points
Next $700 million 10.8 basis points
All assets in excess of $1.2 billion Negotiable
EXHIBIT B
Xxxxxxx Sachs Asset Management, L.P.
FORM ADV
(Please attach)
