INVESTMENT SUB-ADVISORY AGREEMENT
CONSTELLATION FUNDS
AGREEMENT made this 7th day of May, 2004, between Constellation
Investment Management Company, LP (the "Adviser") and Clover Capital Management,
Inc. (the "Sub-Adviser").
WHEREAS, Constellation Funds, a Massachusetts business trust (the
"Trust") is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Adviser has entered into an Investment Advisory Agreement
dated March 4, 2004 (the "Advisory Agreement") with the Trust, pursuant to which
the Adviser will act as investment adviser to each series of the Trust set forth
on Schedule A of this Agreement (each a "Fund" and collectively the "Funds");
and
WHEREAS, the Adviser, with the approval of the Trust, desires to retain
the Sub-Adviser to provide investment advisory services to the Adviser in
connection with the management of the Funds, and the Sub-Adviser is willing to
render such investment advisory services.
NOW, THEREFORE, the parties hereto agree as follows:
1. DUTIES OF THE SUB-ADVISER. Subject to supervision by the Adviser and
the Trust's Board of Trustees, the Sub-Adviser shall manage those
assets of a Fund that the Adviser determines to allocate to the
Sub-Adviser (the "Allocated Assets"), including the purchase, retention
and disposition of the Allocated Assets, in accordance with each Fund's
investment objectives, policies and restrictions as stated in the
Fund's prospectus and statement of additional information, as currently
in effect and as amended or supplemented from time to time (referred to
collectively as the "Prospectus"), and subject to the following:
(a) The Sub-Adviser shall, in consultation with and subject to the
direction of the Adviser, determine from time to time what
Allocated Assets will be purchased, retained or sold by the
Fund, and what portion of the Allocated Assets will be
invested or held uninvested in cash.
(b) In the performance of its duties and obligations under this
Agreement, the Sub-Adviser shall act in conformity with the
Trust's Declaration of Trust (as defined herein) and the
Prospectus and with the instructions and directions of the
Adviser and of the Board of Trustees of the Trust and will
conform to and comply with the requirements of the 1940 Act,
the Internal Revenue Code of 1986, and all other applicable
federal and state laws and regulations, as each is amended
from time to time.
(c) The Sub-Adviser shall determine the Allocated Assets to be
purchased or sold by the Fund as provided in subparagraph (a)
and will place orders with or through such persons, brokers or
dealers to carry out the policy with respect to brokerage set
forth in each Fund's Registration Statement (as defined
herein) and Prospectus or as the Board of Trustees or the
Adviser may direct from time to time, in conformity with
federal securities laws. In executing Fund transactions and
selecting brokers or dealers, the Sub-Adviser will use its
best efforts to seek on behalf of each Fund the best overall
terms available. In assessing the best overall terms available
for any transaction, the Sub-Adviser 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-Adviser may also consider the brokerage and research
services provided (as those terms are defined in Section 28(e)
of the Securities Exchange Act of 1934). Consistent with any
guidelines established by the Board of Trustees of the Trust,
the Sub-Adviser is authorized to pay to a broker or dealer who
provides such brokerage and research services a commission for
executing a fund transaction for a Fund which 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-Adviser 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 terms of the
overall responsibilities of the Sub-Adviser to the Fund. In
addition, the Sub-Adviser is authorized to allocate purchase
and sale orders for securities to brokers or dealers
(including brokers and dealers that are affiliated with the
Adviser, Sub-Adviser or the Trust's principal underwriter) to
take into account the sale of shares of the Trust if the
Sub-Adviser believes that the quality of the transaction and
the commission are comparable to what they would be with other
qualified firms. In no instance, however, will a Fund's
Allocated Assets be purchased from or sold to the Adviser,
Sub-Adviser, the Trust's principal underwriter, or any
affiliated person of either the Trust, Adviser, the
Sub-Adviser or the principal underwriter, acting as principal
in the transaction, except to the extent permitted by the
Securities and Exchange Commission ("SEC") and the 1940 Act.
(d) The Sub-Adviser shall maintain all books and records with
respect to transactions involving the Allocated Assets
required by subparagraphs (b)(5), (6), (7), (9), (10) and (11)
and paragraph (f) of Rule 31a-1 under the 1940 Act. The
Sub-Adviser shall provide to the Adviser or the Board of
Trustees such periodic and special reports, balance sheets or
financial information, and such other information with regard
to its affairs as the Adviser or Board of Trustees may
reasonably request.
The Sub-Adviser shall keep the books and records relating to
the Allocated Assets required to be maintained by the
Sub-Adviser under this Agreement and shall timely furnish to
the Adviser all information relating to the Sub-Adviser's
services under this Agreement needed by the Adviser to keep
the other books and records of a Fund required by Rule 31a-1
under the 1940 Act. The Sub-Adviser shall also furnish to the
Adviser any other information relating to the Allocated Assets
that is required to be filed by the Adviser or the Trust with
the SEC or sent to shareholders under the 1940 Act (including
the rules adopted thereunder) or any exemptive or other relief
that the Adviser or the Trust obtains from the SEC. The
Sub-Adviser agrees that all records that it maintains on
behalf of a Fund are property of the Fund and the Sub-Adviser
will surrender promptly to the Fund any of such records upon
the Fund's request; provided, however, that the Sub-Adviser
may retain a copy of such records. In addition, for the
duration of this Agreement, the Sub-Adviser shall preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act any
such records as are required to be maintained by it pursuant
to this Agreement, and shall transfer said records to any
successor sub-adviser upon the termination of this Agreement
(or, if there is no successor sub-adviser, to the Adviser).
(e) The Sub-Adviser shall provide each Fund's custodian on each
business day with information relating to all transactions
concerning the Fund's Allocated Assets and shall provide the
Adviser with such information upon request of the Adviser.
2
(f) The investment management services provided by the Sub-Adviser
under this Agreement are not to be deemed exclusive and the
Sub-Adviser shall be free to render similar services to
others, as long as such services do not impair the services
rendered to the Adviser or the Trust.
(g) The Sub-Adviser shall promptly notify the Adviser of any
financial condition that is likely to impair the Sub-Adviser's
ability to fulfill its commitment under this Agreement.
(h) The Sub-Adviser shall review all proxy solicitation materials
and be responsible for voting and handling all proxies in
relation to the Allocated Assets. The Adviser shall instruct
the custodian and other parties providing services to the Fund
to promptly forward misdirected proxies to the Sub-Adviser.
(i) Except as specifically permitted in writing by the Adviser, or
as otherwise permitted or required to comply with the
requirements of the 1940 Act (including the rules adopted
thereunder), the Sub-Adviser shall not consult with any other
sub-adviser to the Trust or a Fund concerning the purchase,
retention or disposition of Fund Allocated Assets.
Services to be furnished by the Sub-Adviser under this Agreement may be
furnished through the medium of any of the Sub-Adviser's partners,
officers or employees.
2. DUTIES OF THE ADVISER. The Adviser shall continue to have
responsibility for all services to be provided to each Fund pursuant to
the Advisory Agreement and shall oversee and review the Sub-Adviser's
performance of its duties under this Agreement; provided, however, that
in connection with its management of the Allocated Assets, nothing
herein shall be construed to relieve the Sub-Adviser of responsibility
for compliance with the Trust's Declaration of Trust (as defined
herein), the Prospectus, the instructions and directions of the Board
of Trustees of the Trust, the requirements of the 1940 Act, the
Internal Revenue Code of 1986, and all other applicable federal and
state laws and regulations, as each is amended from time to time.
3. DELIVERY OF DOCUMENTS. The Adviser has furnished the Sub-Adviser with
copies properly certified or authenticated of each of the following
documents:
(a) The Trust's Agreement and Declaration of Trust, as filed with
the Secretary of State of the State of Delaware (such
Agreement and Declaration of Trust, as in effect on the date
of this Agreement and as amended from time to time, herein
called the "Declaration of Trust");
(b) By-Laws of the Trust (such By-Laws, as in effect on the date
of this Agreement and as amended from time to time, are herein
called the "By-Laws");
(c) Prospectus(es) of each Fund.
4. COMPENSATION TO THE SUB-ADVISER. For the services to be provided by the
Sub-Adviser pursuant to this Agreement, the Adviser will pay the
Sub-Adviser, and the Sub-Adviser agrees to accept as full compensation
therefor, a sub-advisory fee at the rate specified on Schedule B or
Schedule C, as applicable, of this Agreement. The fee will be
calculated based on the average monthly market value of the Allocated
Assets under the Sub-Adviser s management and will be paid to the
Sub-Adviser monthly. Except as may otherwise be prohibited by law or
regulation (including any then current SEC staff interpretation), the
Sub-Adviser may, in its discretion and from time to time, waive a
portion of its fee.
3
5. INDEMNIFICATION. The Sub-Adviser shall indemnify and hold harmless the
Adviser from and against any and all claims, losses, liabilities or
damages (including reasonable attorney's fees and other related
expenses) howsoever arising from or in connection with the performance
of the Sub-Adviser s obligations under this Agreement; provided,
however, that the Sub-Advisers obligation under this Section 5 shall
be reduced to the extent that the claim against, or the loss, liability
or damage experienced by the Adviser, is caused by or is otherwise
directly related to the Adviser's own, or any other sub-adviser's,
willful misfeasance, bad faith or negligence, or to the reckless
disregard of its duties under this Agreement.
6. DURATION AND TERMINATION. This Agreement shall become effective upon
its approval by the Trust's Board of Trustees and by the vote of a
majority of the outstanding voting securities of each Fund. This
Agreement shall continue in effect for a period of more than two years
from the date hereof only so long as continuance is specifically
approved at least annually in conformance with the 1940 Act; provided,
however, that this Agreement may be terminated with respect to a Fund
(a) by the Fund at any time, without the payment of any penalty, by the
vote of a majority of Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund, (b) by the
Adviser at any time, without the payment of any penalty, on not more
than 60 days' nor less than 30 days' written notice to the Sub-Adviser,
or (c) by the Sub-Adviser at any time, without the payment of any
penalty, on 90 days' written notice to the Adviser. This Agreement
shall terminate automatically and immediately in the event of its
assignment, or in the event of a termination of the Adviser's agreement
with the Trust. As used in this Section 6, the terms "assignment" and
"vote of a majority of the outstanding voting securities" shall have
the respective meanings set forth in the 1940 Act and the rules and
regulations thereunder, subject to such exceptions as may be granted by
the SEC under the 1940 Act.
7. GOVERNING LAW. This Agreement shall be governed by the internal laws of
the Commonwealth of Pennsylvania, without regard to conflict of law
principles; provided, however, that nothing herein shall be construed
as being inconsistent with the 1940 Act.
8. SEVERABILITY. Should any part of this Agreement be held invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors.
9. 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:
To the Adviser at: Constellation Investment Management
Company, LP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
To the Sub-Adviser at: Clover Capital Management, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Counsel
10. 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.
4
A copy of the Declaration of Trust is on file with the Secretary of
State of the State of Delaware, and notice is hereby given that the obligations
of this instrument are not binding upon any of the Trustees, officers or
shareholders of the Fund or the Trust.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first written
above.
CLOVER CAPITAL MANAGEMENT, INC. CONSTELLATION INVESTMENT MANAGEMENT
COMPANY, LP
By: /s/Xxxxxxx X. Xxxx By: /s/Xxxx X. Xxxxx
------------------ ----------------
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxxx
Title: Chief Operating Officer Title: Chief Executive Officer
5
SCHEDULE A
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
AS AMENDED JANUARY 20, 2006
LISTING OF FUNDS
Name of Fund Date Added
------------ ----------
Constellation Clover Core Value Fund May 7, 2004
Constellation Clover Small Cap Value Fund May 7, 2004
Constellation Clover Core Fixed Income Fund May 7, 2004
6
SCHEDULE B
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
JUNE 24, 2005
FOR FUNDS WITH PERFORMANCE ADJUSTMENTS
This Schedule B shall apply to each of the Funds identified on Schedule B-1
hereto.
(a) GENERAL. The Adviser shall pay to the Sub-Adviser, as compensation
for the Sub-Adviser's services and expenses assumed hereunder, a fee determined
with respect to each Fund, which shall be composed of the Basic Fee (defined
below) and a Performance Adjustment (defined below) to the Basic Fee based upon
the investment performance of a class of shares of the Fund in relation to the
investment record of a securities index determined by the Trustees of the Trust
to be appropriate over the same period.
(b) INDEX, CLASS AND CHANGES TO THE CLASS. The Trustees have initially
designated for each Fund the index and class of shares of the Fund identified on
Schedule B-1 as the index and class to be used for purposes of determining the
Performance Adjustment (referred to herein as the "Index" and the "Class,"
respectively). From time to time, the Trustees may, by a vote of the Trustees of
the Trust voting in person, including a majority of the Trustees who are not
parties to this Agreement or "interested persons" (as defined in the 0000 Xxx)
of any such parties, determine that a different class of shares of the Trust
representing interests in a Fund other than the Class is most appropriate for
use in calculating the Performance Adjustment. If a different class of shares
(the "Successor Class") is substituted in calculating the Performance Adjustment
the use of a Successor Class of shares for purposes of calculating the
Performance Adjustment shall apply to the entire performance period so long as
such Successor Class was outstanding at the beginning of such period. In the
event that such Successor Class of shares was not outstanding for all or a
portion of the Performance Period, it may only be used in calculating that
portion of the Performance Adjustment attributable to the period during which
such Successor Class was outstanding and any prior portion of the Performance
Period shall be calculated using the Successor Class of shares previously
designated.
(c) BASIC FEE. The basic fee for a Fund (the "Basic Fee") for any
period shall equal: (i) the average net asset value of the Fund's assets
allocated to the Sub-Adviser, multiplied by (ii) the annual rate identified for
such Fund on Schedule B-1 hereto, multiplied by (iii) a fraction, the numerator
of which is the number of calendar days in the payment period and the
denominator of which is 365 (366 in leap years).
(d) PERFORMANCE ADJUSTMENT. The amount of the performance adjustment
(the "Performance Adjustment") shall equal: (i) the average net assets of the
Fund over the Performance Period (as defined below), multiplied by (ii) the
Adjustment Rate (as defined below), multiplied by (iii) a fraction, the
numerator of which shall be the number of days in the last month of the
Performance Period and the denominator of which shall be 365 (366 in leap
years). The resulting dollar figure will be added to or subtracted from the
Basic Fee depending on whether the Fund experienced better or worse performance
than the Index.
(e) ADJUSTMENT RATE. The adjustment rate (the "Adjustment Rate") shall
be as set forth in Schedule B-2 for each Fund, provided, however, that the
Performance Adjustment may be further adjusted to the extent necessary to insure
that the total adjustment to the Basic Fee on an annualized basis does not
exceed the maximum Performance Adjustment identified for such Fund in Schedule
B-2.
7
(f) PERFORMANCE PERIOD. The performance period (the "Performance
Period") shall commence on the first day of the month next occurring after this
Agreement becomes effective with respect to the Fund (the "Commencement Date"),
provided, however, that if this Agreement should become effective on the first
day of a month with respect to a Fund, then the Commencement Date shall be the
first day of such month. The Performance Period shall consist of a rolling
12-month period that includes the most current month for which performance is
available plus the previous 11 months following the commencement of Fund
operations under this Agreement. No Performance Adjustment shall be made with
respect to any period that is less than 12 months.
(g) MEASUREMENT CALCULATION. The Fund's investment performance will be
measured by comparing the (i) opening net asset value of one share of the Class
of the Fund on the first business day of the Performance Period with (ii) the
closing net asset value of one share of the Class of the Fund as of the last
business day of such period. In computing the investment performance of the Fund
and the investment record of the Index, distributions of realized capital gains,
the value of capital gains taxes per share paid or payable undistributed
realized long-term capital gains accumulated to the end of such period and
dividends paid out of investment income on the part of the Fund, and all cash
distributions of the companies whose securities comprise the Index, will be
treated as reinvested in accordance with Rule 205-1 or any other applicable rule
under the Investment Advisers Act of 1940, as the same from time to time may be
amended.
(h) PAYMENT OF FEES. The sub-advisory fee payable hereunder shall be
computed daily and paid monthly in arrears.
(i) AVERAGE NET ASSETS. The term "average net assets" of a Fund as used
herein for any period shall mean the quotient produced by dividing (i) the sum
of the net assets of the Fund, as determined in accordance with procedures
established from time to time under the direction of the Board of Trustees of
the Trust, for each calendar day of such period, by (ii) the number of such
days.
(j) TERMINATION. In the event this Agreement with respect to any Fund
is terminated as of a date other than the last day of any month, the Basic Fee
shall be computed on the basis of the period ending on the last day on which
this Agreement is in effect for such Fund, subject to a pro rata adjustment
based on the number of days elapsed in the current month as a percentage of the
total number of days in such month. The amount of any Performance Adjustment to
the Basic Fee will be computed on the basis of and applied to the average net
assets over the Performance Period ending on the last day on which this
Agreement is in effect for such Fund.
8
SCHEDULE B-1
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
AS AMENDED JANUARY 20, 2006
LISTING OF FUNDS WITH PERFORMANCE ADJUSTMENTS
-------------------------------------------------------------------------------------------------------------
ANNUAL BASIC
NAME OF FUND PERFORMANCE INDEX FEE RATE
------------ ----------------- --------
-------------------------------------------------------------------------------------------------------------
Constellation Clover Core Value Xxxxxxx 3000 Index 0.37%
Fund
-------------------------------------------------------------------------------------------------------------
Constellation Clover Small Cap Value Xxxxxxx 2000 Value Index 0.45%
Value Fund
-------------------------------------------------------------------------------------------------------------
Constellation Clover Core Fixed Xxxxxx Brothers Aggregate Bond Index 0.225%
Income Fund
-------------------------------------------------------------------------------------------------------------
9
SCHEDULE B-2
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
AS AMENDED JANUARY 20, 2006
PERFORMANCE ADJUSTMENT RATE
----------------------------------------------------------------------------------------------
MAXIMUM RATE
NAME OF FUND / CLASS ADJUSTMENT METHODOLOGY
-------------------- ---------- -----------
----------------------------------------------------------------------------------------------
Constellation Clover Core Value +/- 0.10% As detailed in Schedule B-3
Fund - Class I Shares
----------------------------------------------------------------------------------------------
Constellation Clover Small Cap +/- 0.1125% As detailed in Schedule B-3
Value Fund - Class I Shares
----------------------------------------------------------------------------------------------
Constellation Clover Core Fixed +/- 0.06% As detailed in Schedule B-3
Income Fund - Class I Shares
----------------------------------------------------------------------------------------------
10
SCHEDULE B-3
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
AS AMENDED JANUARY 20, 2006
METHODOLOGY FOR PERFORMANCE ADJUSTMENT RATE
The tables below describes the applicable sub-advisory fees that the Sub-Adviser
would receive based on each Fund's performance as compared to its benchmark
index over a given performance period:
1. CONSTELLATION CLOVER CORE VALUE FUND.
The Base Fee The Base Fee
If the Fund: Increases by: If the Fund: Decreases by:
------------ ------------- ------------ -------------
Outperforms the Index by 5.01% or more + 0.10% Underperforms the Index by 5.01% or more - 0.10%
Outperforms the Index by 4.01% to 5.00% + 0.075% Underperforms the Index by 4.01% to 5.00% - 0.075%
Outperforms the Index by 3.01% to 4.00% + 0.050% Underperforms the Index by 3.01% to 4.00% - 0.050%
Outperforms the Index by 2.01% to 3.00% + 0.025% Underperforms the Index by 2.01% to 3.00% - 0.025%
Outperforms the Index by 2.00% or less 0.00% Underperforms the Index by 2.00% or less 0.00%
2. CONSTELLATION CLOVER SMALL CAP VALUE FUND.
The Base Fee The Base Fee
If the Fund: Increases by: If the Fund: Decreases by:
------------ ------------- ------------ -------------
Outperforms the Index by 5.01% or more + 0.1125% Underperforms the Index by 5.01% or more - 0.1125%
Outperforms the Index by 4.01% to 5.00% + 0.084375% Underperforms the Index by 4.01% to 5.00% - 0.084375%
Outperforms the Index by 3.01% to 4.00% + 0.05625% Underperforms the Index by 3.01% to 4.00% - 0.05625%
Outperforms the Index by 2.01% to 3.00% + 0.028125% Underperforms the Index by 2.01% to 3.00% - 0.028125%
Outperforms the Index by 2.00% or less 0.00% Underperforms the Index by 2.00% or less 0.00%
3. CONSTELLATION CLOVER CORE FIXED INCOME FUND.
The Base Fee The Base Fee
If the Fund: Increases by: If the Fund: Decreases by:
------------ ------------- ------------ -------------
Outperforms the Index by 5.01% or more + 0.060% Underperforms the Index by 5.01% or more - 0.060%
Outperforms the Index by 4.01% to 5.00% + 0.045% Underperforms the Index by 4.01% to 5.00% - 0.045%
Outperforms the Index by 3.01% to 4.00% + 0.030% Underperforms the Index by 3.01% to 4.00% - 0.030%
Outperforms the Index by 2.01% to 3.00% + 0.015% Underperforms the Index by 2.01% to 3.00% - 0.015%
Outperforms the Index by 2.00% or less 0.00% Underperforms the Index by 2.00% or less 0.00%
11
SCHEDULE C
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
FOR FUNDS WITH NO PERFORMANCE ADJUSTMENT
This Schedule C shall apply to each of the Funds identified on Schedule C-1
hereto.
(a) The Adviser shall pay to the Sub-Adviser a fee for each Fund
calculated daily and payable monthly in arrears, computed as a percentage of the
average net assets of the Fund for such month at the rate set forth in Schedule
C-1 hereto.
(b) The "average net assets" of the Fund for any month shall be equal
to the quotient produced by dividing (i) the sum of the net assets of such Fund,
determined in accordance with procedures established from time to time by or
under the direction of the Board of Trustees of the Trust, for each calendar day
of such month, by (ii) the number of such days.
12
SCHEDULE C-1
TO THE
INVESTMENT SUB-ADVISORY AGREEMENT
LISTING OF FUNDS AND FEE RATES
Name of Fund
------------
None
13
