SUB-ADVISORY AGREEMENT
SUB-ADVISORY AGREEMENT (the "AGREEMENT") made as of this 31st day of
August, 2015 by and between Xxxxxx Associates Inc., a California corporation
with its principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, XX 00000-0000 (the "ADVISER"), and PanAgora Asset Management, Inc.
a Delaware corporation with its principal place of business at 000 Xxxxxxxx
Xxxxxx, 0(xx) xxxxx, Xxxxxx, XX 00000 (the "SUB-ADVISER").
W I T N E S S E T H
WHEREAS, pursuant to authority granted to the Adviser by the Board of
Trustees (the "BOARD") of THE KP FUNDS (the "TRUST") on behalf of the series
set forth on SCHEDULE A to this Agreement (the "FUND") and pursuant to the
provisions of the Investment Advisory Agreement dated as of December 18, 2013
between the Adviser and the Fund (the "MANAGEMENT AGREEMENT"), the Adviser has
selected the Sub-Adviser to act as sub-investment adviser of the Fund and to
provide certain related services, as more fully set forth below, and to perform
such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Adviser and the Sub-Adviser do hereby agree as follows:
1. THE SUB-ADVISER'S SERVICES.
(a) DISCRETIONARY INVESTMENT MANAGEMENT SERVICES. The Sub-Adviser
shall act as sub-investment adviser with respect to the Fund. In such capacity,
the Sub-Adviser shall, subject to the supervision of the Adviser and the Board,
regularly provide the Fund with investment research, advice and supervision and
shall furnish continuously an investment program for such Fund assets as may be
allocated by the Adviser to the Sub-Adviser (the "ASSETS"), consistent with the
investment objectives and policies of the Fund and any investment guidelines
established and modified from time to time by the Adviser and communicated in
writing to the Sub-Adviser. The Sub-Adviser shall determine, from time to time,
what investments shall be purchased for the Fund and what such securities shall
be held or sold by the Fund, subject always to the provisions of the Trust's
Agreement and Declaration of Trust, By-Laws and its registration statement on
Form N-1A (the "REGISTRATION STATEMENT") under the Investment Company Act of
1940, as amended (the "1940 ACT"), and under the Securities Act of 1933, as
amended (the "1933 ACT"), covering Fund shares, as filed with the Securities and
Exchange Commission (the "COMMISSION"), and to the investment objectives,
policies and restrictions of the Fund, as each of the same shall be from time to
time in effect, and to any investment guidelines established by the Adviser as
referred to above and provided to the Sub-Adviser in writing. To carry out such
obligations, the Sub-Adviser shall exercise full discretion and act for the Fund
in the same manner and with the same force and effect as the Fund itself might
or could do with respect to purchases, sales or other transactions, as well as
with respect to all other such things necessary or incidental to the furtherance
or conduct of such purchases, sales or other transactions. Notwithstanding the
foregoing, the Sub-Adviser shall, upon written instructions from the Adviser,
effect such portfolio transactions for the Fund as the Adviser may from time to
time direct; PROVIDED however,
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that the Sub-Adviser shall not be responsible for any such portfolio
transactions effected upon written instructions from the Adviser. No reference
in this Agreement to the Sub-Adviser having full discretionary authority over
the Fund's investments shall in any way limit the right of the Adviser, in its
sole discretion, to establish or revise policies in connection with the
management of the Fund's Assets or to otherwise exercise its right to control
the overall management of the Fund's Assets.
(b) COMPLIANCE. With respect to the services contemplated in this
Agreement, the Sub-Adviser agrees to comply with the requirements of the 1940
Act, the Investment Advisers Act of 1940, as amended (the "ADVISERS ACT"), the
1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 ACT"), the
Commodity Exchange Act and the respective rules and regulations thereunder, each
as applicable, as well as with all other applicable federal and state laws,
rules, regulations and case law that relate to the services and relationships
described hereunder and to the conduct of its business as a registered
investment adviser. With respect to the Fund Assets as defined in Section 1(a)
herein, the Sub-Adviser also agrees to comply with the objectives, policies and
restrictions set forth in the Registration Statement, as amended or
supplemented, of the Fund, and with any policies, guidelines, instructions and
applicable procedures approved by the Board or the Adviser and provided to the
Sub-Adviser in writing The Adviser will use commercially reasonable efforts to
provide the Sub-Adviser with 7 days' advance written notice of any (i) change in
a Fund's investment objective, policies or restrictions; (ii) any change to the
Trust's Agreement and Declaration of Trust or By-Laws; and (iii) any material
change to the Trust's compliance policies and procedures. Notwithstanding the
above notice provision, (i) the Adviser may, in its sole discretion, establish a
compliance date for such changes that is less than 7 days after notice to the
Sub-Adviser; and (ii) the Sub-Adviser shall use commercially reasonable efforts
to comply with such changes upon the date established by the Adviser in the
written notice. In selecting the Fund's portfolio securities and performing the
Sub-Adviser's obligations hereunder, the Sub-Adviser shall cause the Fund to
comply with the diversification and source of income requirements of Subchapter
M of the Internal Revenue Code of 1986, as amended (the "CODE"), for
qualification as a regulated investment company. The Sub-Adviser shall maintain
compliance procedures that it reasonably believes are adequate to ensure the
compliance with the foregoing. No supervisory activity undertaken by the Adviser
shall limit the Sub-Adviser's full responsibility for any of the foregoing. The
Sub-Adviser will not advise or take any action on behalf of the Fund in any
contemplated or actual legal proceedings, including, but not limited to,
bankruptcies, tax reclaims or class actions, involving the issuers of securities
held or formerly held as part or all of the Assets. The Adviser acknowledges
that the Sub-Adviser's responsibilities are limited to those related to the
management of the Assets, and that the Sub-Adviser is not responsible for
compliance, qualification or other matters related to those portions of the Fund
which are not subject to this Agreement.
Notwithstanding the foregoing, the Adviser acknowledges that the
Sub-Adviser does not have access to all of the Fund's books and records
necessary to perform certain compliance testing and that the Sub-Adviser's
responsibilities are limited to those related to the portion of the Fund's
assets managed by the Sub-Adviser. To the extent that the
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Sub-Adviser has agreed to perform the services specified in this Agreement
(including certain compliance testing), the Sub-Adviser shall perform such
services based upon its books and records with respect to the Fund, which
comprise a portion of the Fund's books and records related to the portion of
the Fund's assets managed by the Sub-Adviser, and upon written instructions and
information received from the Fund or the Adviser. The Adviser has informed the
Sub-Adviser and the Sub-Adviser acknowledges that the Adviser currently has no
publicly traded affiliates and that there are no brokers or underwriters
affiliated with the Adviser for reporting transactions under the applicable
provisions of the 1940 Act and the Adviser agrees to promptly notify the
Sub-Adviser in writing of any change in the foregoing.
(c) PROXY VOTING. Pursuant to Board authority, the Adviser has the
authority to determine how proxies with respect to securities that are held by
the Fund shall be voted, and the Adviser may delegate the authority and
responsibility to vote proxies for the Fund's securities to the Sub-Adviser. So
long as proxy voting authority for the Fund has been delegated to the
Sub-Adviser, the Adviser shall provide such assistance to the Sub-Adviser with
respect to the voting of proxies for the Fund as the Sub-Adviser may from time
to time reasonably request, and the Adviser shall promptly forward to the
Sub-Adviser any information or documents necessary for the Sub-Adviser to
exercise its proxy voting responsibilities. The Sub-Adviser shall carry out
such responsibility in accordance with any written instructions that the Board
or the Adviser shall provide from time to time, and at all times in a manner
consistent with Rule 206(4)-6 under the Advisers Act and its fiduciary
responsibilities to the Trust. The Sub-Adviser shall provide the Adviser with
a copy of its written proxy voting policies and procedures and as such may be
amended from time to time. The Sub-Adviser shall provide periodic reports and
keep such records relating to proxy voting as the Adviser and the Board may
reasonably request or as may be necessary for the Fund to comply with the 1940
Act and other applicable law. Any such delegation of proxy voting
responsibility to the Sub-Adviser may be revoked or modified by the Board or
the Adviser at any time.
Unless and until otherwise directed in writing by the Adviser or the
Board the Sub-Adviser shall be responsible for voting the Fund's proxies and
exercising all other applicable rights of the Fund as a security holder in
connection with corporate actions or other transactions relating to the Fund's
portfolio holdings. The Sub-Adviser is authorized to instruct the Fund's
custodian and/or broker(s) to forward promptly to the Sub-Adviser or designated
service provider copies of all proxies and shareholder communications relating
to securities held in the portfolio of a Fund (other than materials relating to
legal proceedings against the Fund). The Sub-Adviser may also instruct the
Fund's custodian and/or broker(s) to provide reports of holdings in the
portfolio of the Fund. The Sub-Adviser has the authority to engage a service
provider to assist with administrative functions related to voting Fund
proxies. The Trust shall direct the Fund's custodian and/or broker(s) to
provide any assistance requested by the Sub-Adviser in facilitating the use of
a service provider. In no event shall the Sub-Adviser have any responsibility
to vote proxies that are not received on a timely basis. The Trust
acknowledges that the Sub-Adviser, consistent with the Sub-Adviser's written
proxy voting policies and procedures, may refrain from voting a proxy if, in
the Sub-Adviser's
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discretion, refraining from voting would be in the best interests of the Fund
and its shareholders.
(d) RECORDKEEPING. The Sub-Adviser shall not be responsible for the
provision of administrative, bookkeeping or accounting services to the Fund,
except as otherwise provided herein or as may be necessary for the Sub-Adviser
to supply to the Adviser, the Trust or its Board the information required to be
supplied under this Agreement.
The Sub-Adviser shall maintain separate books and detailed records of
all matters pertaining to the Fund's assets advised by the Sub-Adviser required
by Rule 31a-1 under the 1940 Act (other than those records being maintained by
the Adviser, or any administrator custodian or transfer agent appointed by the
Fund) relating to its responsibilities provided hereunder with respect to the
Fund, and shall preserve such records for the periods and in a manner
prescribed therefore by Rule 31a-2 under the 1940 Act (the "FUND BOOKS AND
RECORDS"). The Fund Books and Records shall be available to the Adviser and
the Board at any time upon request and shall be delivered to the Trust in a
form agreed upon by the Adviser and the Sub-Adviser, which may include an
electronic format, upon the termination of this Agreement and shall be
available without delay during any day the Sub-Adviser is open for business
upon the Fund's or the Adviser's reasonable request. Nothing herein shall
prevent the Sub-Adviser from maintaining its own records as required by law,
which may be a duplication of the Fund's records.
(e) HOLDINGS INFORMATION AND PRICING. The Sub-Adviser shall provide
regular reports regarding the Assets, and may, on its own initiative, furnish
the Adviser, the Trust and its Board from time to time with whatever
information the Sub-Adviser believes is appropriate for this purpose. The
Sub-Adviser agrees to notify the Adviser and the Board promptly if the
Sub-Adviser reasonably believes that the value of any security held by a Fund
may not reflect fair value. The Sub-Adviser agrees to provide upon request any
pricing information of which the Sub-Adviser is aware to the Adviser, Trust,
its Board and/or any Fund pricing agent to assist in the determination of the
fair value of any Fund holdings that are part of the Assets for which market
quotations are not readily available or as otherwise required in accordance
with the 1940 Act or the Fund valuation procedures for the purpose of
calculating the Trust's net asset value in accordance with procedures and
methods established by the Board.
(f) COOPERATION WITH AGENTS OF THE ADVISER AND THE TRUST. The
Sub-Adviser agrees to cooperate with and provide reasonable assistance to the
Adviser, the Trust and any Trust custodian or foreign sub-custodians, any Trust
pricing agents and all other agents and representatives of the Adviser and the
Trust with respect to such information regarding the Fund as such entities may
reasonably request from time to time in the performance of their obligations,
provide prompt responses to reasonable requests made by such persons and
establish appropriate interfaces with each so as to promote the efficient
exchange of information and compliance with applicable laws and regulations.
The Sub-Adviser shall make its officers and employees available to the Adviser
from time to time as reasonably requested by the Adviser to review any current
or proposed
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investment guidelines for the Fund and to consult with the Adviser with respect
to the Fund's investment matters.
(g) CONSULTATION WITH OTHER SUB-ADVISERS. In performance of its
duties and obligations under this Agreement, the Sub-Adviser shall not consult
with any other sub-adviser to the Fund or a sub-adviser to a portfolio that is
under common control with the Fund concerning transactions for the Fund, except
as permitted by the policies and procedures of the Fund. The Sub-Adviser shall
not provide investment advice to any assets of the Fund other than the assets
managed by the Sub-Adviser.
2. CODE OF ETHICS. The Sub-Adviser has adopted a written code of
ethics that it reasonably believes complies with the requirements of Rule 17j-1
under the 1940 Act, which it has provided to the Adviser and the Trust. The
Sub-Adviser shall ensure that its Access Persons (as defined in the
Sub-Adviser's Code of Ethics) comply in all material respects with the
Sub-Adviser's Code of Ethics, as in effect from time to time. Upon request, the
Sub-Adviser shall provide the Trust with (i) a copy of the Sub-Adviser's
current Code of Ethics, as in effect from time to time, and (ii) a
certification that it has adopted procedures reasonably necessary to prevent
Access Persons from engaging in any conduct prohibited by the Sub-Adviser's
Code of Ethics. Annually, the Sub-Adviser shall furnish a written report,
which complies with the requirements of Rule 17j-1, concerning the
Sub-Adviser's Code of Ethics to the Adviser and the Trust's Board. The
Sub-Adviser shall respond to requests for information from the Adviser and the
Trust as to violations of the Code by Access Persons and the sanctions imposed
by the Sub-Adviser. The Sub-Adviser shall notify the Adviser and the Trust as
soon as reasonably practicable of any material violation of the Code, whether
or not such violation relates to a security held by any Fund.
3. INFORMATION AND REPORTING. The Sub-Adviser shall provide the
Adviser, the Trust, and their respective officers with such periodic reports
concerning the obligations the Sub-Adviser has assumed under this Agreement as
the Adviser and the Trust may from time to time reasonably request.
(a) NOTIFICATION OF BREACH OR SIGNIFICANT CHANGES / COMPLIANCE
REPORTS. The Sub-Adviser shall notify the Trust's Chief Compliance Officer and
Adviser as soon as reasonably practicable upon detection of (i) any material
failure to manage any Fund in accordance with its investment objectives and
policies or any applicable law; or (ii) any material breach of any of the
Fund's or the Adviser's policies, guidelines or procedures that directly relate
to management of Fund Assets or to the sub-advisory services provided by the
Sub-Adviser to the Fund hereunder. The Sub-Adviser shall notify the Adviser as
soon as possible of (i) any significant changes in its investment strategy,
asset allocation or other matters affecting its management of the Fund's
assets; or (ii) any changes to the senior investment management personnel
primarily responsible for the investment or servicing of the Fund's assets
which include portfolio managers and relationship managers. In addition, the
Sub-Adviser shall provide a quarterly report regarding the Fund's compliance
with its investment objectives and policies, applicable law, including, but not
limited to the 1940 Act and Subchapter M of the Code, and the Fund's and the
Adviser's policies, guidelines or procedures as applicable to the Sub-Adviser's
obligations under this Agreement. The Sub-Adviser acknowledges and agrees
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that the Adviser may, in its discretion, provide such quarterly compliance
certifications to the Board. The Sub-Adviser agrees to correct any such failure
promptly and to take any action that the Board and/or the Adviser may
reasonably request in connection with any such breach. Upon reasonable request,
the Sub-Adviser shall also provide the officers of the Trust with supporting
certifications in connection with such certifications of Fund financial
statements and disclosure controls pursuant to the Xxxxxxxx-Xxxxx Act. The
Sub-Adviser will promptly notify the Trust in the event (i) the Sub-Adviser is
served or otherwise receives notice of any action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public board, or
body, involving the affairs of the Trust (excluding class action suits in which
a Fund is a member of the plaintiff class by reason of the Fund's ownership of
shares in the defendant) or the compliance by the Sub-Adviser with the federal
or state securities laws to the extent that the action would affect the
Sub-Adviser's ability to service the Fund or (ii) an actual change in control
of the Sub-Adviser resulting in an "assignment" (as defined in the 1940 Act)
has occurred or is otherwise proposed to occur.
(b) INSPECTION. Upon reasonable request, the Sub-Adviser agrees to
make its records and premises (including the availability of the Sub-Adviser's
employees for interviews) to the extent that they relate to the conduct of
services provided to the Fund or the Sub-Adviser's conduct of its business as
an investment adviser reasonably available for compliance audits by the Adviser
or the Trust's officers, employees, accountants or counsel; in this regard, the
Trust and the Adviser acknowledge that the Sub-Adviser shall have no obligation
to make available proprietary information unrelated to the services provided to
the Fund or any information related to other clients of the Sub-Adviser, except
to the extent necessary for the Adviser to confirm the absence of any conflict
of interest and compliance with any laws, rules or regulations in the
management of the Fund.
(c) BOARD AND FILINGS INFORMATION. The Sub-Adviser will also provide
the Adviser and Trust with any information reasonably requested regarding its
management of the Fund required for any meeting of the Board, or for any
shareholder report, Form N-CSR, Form N-Q, Form N-PX, Form N-SAR, amended
registration statement, proxy statement, or prospectus supplement to be filed
by the Trust with the Commission. As reasonably requested, the Sub-Adviser will
make its officers and employees available to meet with the Board from time to
time on due notice to review its investment management services to the Fund in
light of current and prospective economic and market conditions and shall
furnish to the Board such information as may reasonably be necessary in order
for the Board to evaluate this Agreement or any proposed amendments thereto.
(d) TRANSACTION INFORMATION. The Sub-Adviser shall furnish to the
Adviser and the Trust such information concerning portfolio transactions
entered into by the Sub-Adviser on behalf of the Fund as may be necessary to
enable the Adviser, Trust or their designated agents to perform such compliance
testing on the Fund and the Sub-Adviser's services as the Adviser and the Trust
may, in their sole discretion, reasonably determine to be appropriate. The
provision of such information by the Sub-Adviser to the Adviser,
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Trust or their designated agents in no way relieves the Sub-Adviser of its own
responsibilities under this Agreement.
4. BROKERAGE.
(a) PRINCIPAL TRANSACTIONS. In connection with purchases or sales of
securities for the account of a Fund, neither the Sub-Adviser nor any of its
directors, officers or employees will act as a principal or agent or receive any
commission except as permitted by the 1940 Act.
(b) PLACEMENT OF ORDERS. The Sub-Adviser shall arrange for the
placing of all orders for the purchase and sale of securities for a Fund's
account with brokers or dealers selected by the Sub-Adviser. In the selection
of such brokers or dealers and the placing of such orders, subject to the other
provisions of this paragraph, the Sub-Adviser is directed at all times to seek
for a Fund the best execution available under the circumstances, taking into
account factors such as price, size of order and type of transaction,
difficulty of execution, scope and quality of brokerage services provided and
the financial responsibility and operations of the broker. It is expected that
the Sub-Adviser will seek competitive commission rates generally although it is
understood that the Sub-Adviser will not necessarily pay the lowest commission
rate available on each transaction. It is also understood that it may be
desirable for the Fund that the Sub-Adviser have access to brokerage and
research services provided by brokers who may execute brokerage transactions at
a higher cost to the Fund than may result when allocating brokerage to other
brokers, consistent with section 28(e) of the 1934 Act and any Commission staff
interpretations thereof. Therefore, the Sub-Adviser is authorized to place
orders for the purchase and sale of securities for the Fund with such brokers
if the Sub-Adviser determines, in good faith, that such amount of commissions
is reasonable in relation to the value of such brokerage or research services
provided in terms of a particular Fund transaction or the Sub-Adviser's overall
responsibilities to the Fund and its other clients, and that the total
commissions paid by the Fund will be reasonable in relation to the benefits to
the Fund over the long-term. This practice is subject to review by the Adviser
and the Board from time to time with respect to the extent and continuation of
this practice. It is understood that the services provided by such brokers may
be useful to the Sub-Adviser in connection with its or its affiliates' services
to other clients. The Sub-Adviser shall not be responsible for any acts or
omissions by any such brokers or dealers; PROVIDED that the Sub-Adviser is not
negligent in the selection of such brokers or dealers.
(c) AGGREGATED TRANSACTIONS. On occasions when the Sub-Adviser deems
the purchase or sale of a security to be in the best interest of a Fund as well
as other clients of the Sub-Adviser, the Sub-Adviser may, to the extent
permitted by applicable law and regulations, aggregate the order for securities
to be sold or purchased. In such event, the Sub-Adviser will allocate
securities or futures contracts so purchased or sold, as well as the expenses
incurred in the transaction, in the manner the Sub-Adviser reasonably considers
to be equitable and consistent with its fiduciary obligations to a Fund and to
such other clients under the circumstances.
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(d) AFFILIATED BROKERS. The Sub-Adviser or any of its affiliates may
act as broker in connection with the purchase or sale of securities or other
investments for a Fund, subject to: (a) the requirement that the Sub-Adviser
seek to obtain best execution and price within the policy guidelines determined
by the Board and set forth in a Fund's current Registration Statement; (b) the
provisions of the 1940 Act; (c) the provisions of the Advisers Act; (d) the
provisions of the 1934 Act; and (e) other provisions of applicable law. These
brokerage services are not within the scope of the duties of the Sub-Adviser
under this Agreement. Subject to the requirements of applicable law and any
procedures adopted by the Board, the Sub-Adviser or its affiliates may receive
brokerage commissions, fees or other remuneration from a Fund for these
services in addition to the Sub-Adviser's fees for services under this
Agreement.
(e) The Sub-Adviser also is hereby authorized to instruct the Fund
custodian with respect to any collateral management activities in connection
with any derivatives transactions. The Adviser agrees, upon reasonable request,
to provide the Sub-Adviser with tax information, governing documents, and such
other reasonable information or documentation concerning the Funds necessary to
allow the Sub-Adviser to trade any financial instrument under any trading
agreements executed by the Adviser.
5. CUSTODY. Nothing in this Agreement shall permit the Sub-Adviser
to take or receive physical possession of cash, securities or other investments
of a Fund.
6. ALLOCATION OF CHARGES AND EXPENSES. The Sub-Adviser will bear its
own costs of providing services hereunder. Other than as herein specifically
indicated, the Sub-Adviser shall not be responsible for a Fund's or the
Adviser's expenses, including brokerage and other expenses incurred in placing
orders for the purchase and sale of securities and other investment
instruments.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SUB-ADVISER.
(a) PROPERLY REGISTERED. The Sub-Adviser is registered as an
investment adviser under the Advisers Act, and will remain so registered for the
duration of this Agreement. The Sub-Adviser is not prohibited by the Advisers
Act or the 1940 Act from performing the services contemplated by this Agreement,
and to the best knowledge of the Sub-Adviser, there is no proceeding or
investigation that is reasonably likely to result in the Sub-Adviser being
prohibited from performing the services contemplated by this Agreement. The
Sub-Adviser agrees to promptly notify the Trust of the occurrence of any event
that would disqualify the Sub-Adviser from serving as an investment adviser to
an investment company. The Sub-Adviser is in compliance in all material respects
with all applicable federal and state law in connection with its investment
management operations.
(b) ADV DISCLOSURE. The Sub-Adviser has provided the Trust with a
copy of Part I of its Form ADV as most recently filed with the Commission and
its Part 2 as most recently updated and will, promptly after filing any
amendment to its Form ADV with the Commission or updating its Part 2, furnish a
copy of such amendments or updates to the Trust. The information contained in
the Sub-Adviser's Form ADV is accurate and
8
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.
(c) FUND DISCLOSURE DOCUMENTS. The Sub-Adviser has reviewed and will
in the future review, the portions of the following documents that pertain to
the Sub-Adviser and the services provided by the Sub-Adviser hereunder: the
Registration Statement, summary prospectus, prospectus, statement of additional
information, periodic reports to shareholders, proxy statements, reports and
schedules filed with the Commission (including any amendment, supplement or
sticker to any of the foregoing) and advertising and sales material relating to
the Fund (collectively the "DISCLOSURE DOCUMENTS"). The Sub-Adviser represents
and warrants that such portions of the Disclosure Documents relating to the
Sub-Adviser contain or will contain no untrue statement of any material fact
and do not and will not omit any statement of material fact required to be
stated therein or necessary to make the statements therein not misleading.
(d) USE OF THE NAMES "KP" AND "XXXXXX." The Sub-Adviser has the right
to use the names "KP" and "Xxxxxx" solely in connection with its services to
the Trust and the Trust and the Adviser have the right to use the name
"PanAgora" solely in connection with the management and operation of a Fund.
The Sub-Adviser is not aware of any threatened or existing actions, claims,
litigation or proceedings that would adversely affect or prejudice the rights
of the Sub-Adviser or the Trust to use the name "PanAgora."
(e) INSURANCE. The Sub-Adviser maintains errors and omissions
insurance coverage in an appropriate amount and shall provide prior written
notice to the Trust (i) of any material changes in its insurance policies or
insurance coverage; or (ii) if any material claims will be made on its
insurance policies. Furthermore, the Sub-Adviser shall, upon reasonable
request, provide the Trust with any information it may reasonably require
concerning the amount of or scope of such insurance.
(f) NO DETRIMENTAL AGREEMENT. The Sub-Adviser represents and warrants
that it has no arrangement or understanding with any party, other than the
Trust, that would influence the decision of the Sub-Adviser with respect to its
selection of securities for a Fund, and that all selections shall be done in
accordance with what is in the best interest of the Fund.
(g) CONFLICTS. The Sub-Adviser shall act honestly, in good faith and
in the best interests of the Trust including requiring any of its personnel
with knowledge of Fund activities to place the interest of the Fund first,
ahead of their own interests, in all personal trading scenarios that may
involve a conflict of interest with the Fund, consistent with its fiduciary
duties under applicable law.
(h) REPRESENTATIONS. The representations and warranties in this
Section 7 shall be deemed to be made on the date this Agreement is executed and
at the time of delivery of the quarterly compliance report required by Section
3(a), whether or not specifically referenced in such report.
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8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ADVISER. The Adviser
represents and warrants to the Sub-Adviser as follows:
(a) The Adviser is registered as an investment adviser under the
Advisers Act.
(b) The Adviser is duly organized and validly existing under its
jurisdiction of organization 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 of the Adviser of this
Agreement are within the Adviser's powers and have been duly authorized by all
necessary action, and no action by or in respect of, or filing with, any
governmental body, agency or official is required on the part of the Adviser
for the execution, delivery and performance by the Adviser of this Agreement,
and the Adviser believes that the execution, delivery and performance by the
Adviser of this Agreement does not contravene or constitute a default under:
(i) any provision of applicable law, rule or regulation; (ii) the Adviser's
governing instruments; or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon the Adviser.
(d) The Adviser acknowledges that it has received a copy of the
Sub-Adviser's Form ADV prior to the execution of this Agreement.
(e) During the term of this Agreement, the Adviser shall furnish to
the Sub-Adviser Disclosure Documents, at a reasonable time prior to the use
thereof Unless otherwise specified by the Adviser, the Sub-adviser shall have
7 calendar days to review such Disclosure Documents, and the Adviser agrees not
to use any such Disclosure Documents until the Sub-Adviser has reviewed such
Disclosure Documents and any comments have been addressed to the Sub-Adviser's
reasonable satisfaction within 7 business days. If requested by the Adviser,
with respect to any such Disclosure Documents requiring urgent or expedited
review, the Sub-Adviser agrees to work with the Adviser to provide such review
within a timeframe of less than 7 business days. Disclosure Documents which
have been previously approved or those that only refer to Sub-Adviser's name or
logo are not subject to such prior approval provided the Adviser shall ensure
that such materials are consistent with those which were previously approved by
the Sub-Adviser.
(f) The Adviser agrees that neither the Trust, the Adviser, nor
affiliated persons of the Trust or the Adviser shall, except with the prior
written permission of the Sub-Adviser, give any information or make any
representations or statements in connection with the sale of shares of the Fund
concerning the Sub-Adviser other than the information or representations
contained in the Disclosure Documents, as they may be amended or supplemented
from time to time.
(g) The Adviser will continue to be registered in accordance with
(a), above, for so long as this Agreement remains in effect; is not prohibited
by the 1940 Act or the Advisers Act from performing the services contemplated
by this Agreement; and will promptly notify the Sub-Adviser of the occurrence
of any event that would disqualify the
10
Adviser from serving as investment adviser of a registered investment company
pursuant to Section 9(a) of the 1940 Act.
(h) To the extent that the Fund engages in derivative trading, the
Assets may not be posted as margin or collateral by any other sub-adviser to
the Fund to meet margin and collateral obligations of the Fund not related to
the Assets.
(i) The Trust is a "qualified institutional buyer" ("QIB") as
defined in Rule 144A under the Securities Act of 1933, as amended, and the
Adviser will promptly notify the Sub-Adviser if the Trust ceases to be a QIB.
9. SUB-ADVISER'S COMPENSATION. The Adviser shall cause the Fund to
pay the Sub-Adviser, as compensation for the Sub-Adviser's services hereunder,
a fee, determined as described in Schedule A that is attached hereto and made a
part hereof. Such fee shall be computed daily and paid not less than monthly
in arrears by the Fund.
The Sub-Adviser will be compensated based on the portion of Fund
assets allocated to the Sub-Adviser by the Adviser. The method for determining
net assets of the Fund for purposes hereof shall be the same as the method for
determining net assets for purposes of establishing the offering and redemption
prices of Fund shares as described in the Fund's prospectus. In the event of
termination of this Agreement, the fee provided in this Section shall be
computed on the basis of the period ending on the last business day on which
this Agreement is in effect 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.
10. INDEPENDENT CONTRACTOR AND NON-EXCLUSIVITY. In the performance of
its duties hereunder, the Sub-Adviser 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 the Fund, the Trust or
the Adviser in any way or otherwise be deemed to be an agent of the Fund, the
Trust or the Adviser. If any occasion should arise in which the Sub-Adviser
gives any advice to its clients concerning the shares of a Fund, the
Sub-Adviser will act solely as investment counsel for such clients and not in
any way on behalf of the Fund. The 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.
11. ASSIGNMENT AND AMENDMENTS. This Agreement shall automatically
terminate, without the payment of any penalty, (i) in the event of its
assignment (as defined in section 2(a)(4) of the 0000 Xxx) or (ii) in the event
of the termination of the Management Agreement; PROVIDED that such termination
shall not relieve the Adviser or the Sub-Adviser of any liability incurred
hereunder.
This Agreement may not be added to or changed orally and may not be
modified or rescinded except by a writing signed by the parties hereto and in
accordance with the 1940 Act, when applicable.
11
12. DURATION AND TERMINATION.
This Agreement shall become effective as of the date executed and
shall remain in full force and effect continually thereafter, subject to
renewal as provided in Section 11(d) and unless terminated automatically as set
forth in Section 10 hereof or until terminated as follows:
(a) The Trust may cause this Agreement to terminate either (i) by
vote of its Board or (ii) with respect to the Fund, upon the affirmative vote
of a majority of the outstanding voting securities of the Fund; or
(b) The Adviser may at any time terminate this Agreement by not more than
sixty (60) days' nor less than thirty (30) days' written notice delivered or
mailed by registered mail, postage prepaid, to the Sub-Adviser; or
(c) The Sub-Adviser may at any time terminate this Agreement by not
more than sixty (60) days' nor less than thirty (30) days' written notice
delivered or mailed by registered mail, postage prepaid, to the Adviser; or
(d) This Agreement shall automatically terminate two years from the
date of its execution unless its renewal is specifically approved at least
annually thereafter by (i) a majority vote of the Trustees, including a
majority vote of such Trustees who are not interested persons of the Trust, the
Adviser or the Sub-Adviser, at a meeting called for the purpose of voting on
such approval; or (ii) the vote of a majority of the outstanding voting
securities of the Fund; PROVIDED, however, that if the continuance of this
Agreement is submitted to the shareholders of the Fund for their approval and
such shareholders fail to approve such continuance of this Agreement as
provided herein, the Sub-Adviser may continue to serve hereunder as to the Fund
in a manner consistent with the 1940 Act and the rules and regulations
thereunder; and
(e) Termination of this Agreement pursuant to this Section shall be
without payment of any penalty.
In the event of termination of this Agreement for any reason, the
Sub-Adviser shall, immediately upon notice of termination or on such later date
as may be specified in such notice, cease all activity on behalf of the Fund
and with respect to any of its assets, except as expressly directed by the
Adviser or as otherwise required by any fiduciary duties of the Sub-Adviser
under applicable law. In addition, the Sub-Adviser shall deliver the Fund's
Books and Records to the Adviser by such means and in accordance with such
schedule as agreed to by the Adviser and the Sub-Adviser, which may include
electronic means, shall direct and shall otherwise cooperate, as reasonably
directed by the Adviser, in the transition of portfolio asset management to any
successor of the Sub-Adviser, including the Adviser.
13. CERTAIN DEFINITIONS. For the purposes of this Agreement:
(a) "Affirmative vote of a majority of the outstanding voting
securities of the Fund" shall have the meaning as set forth in the 1940 Act,
subject, however, to such
12
exemptions as may be granted by the Commission under the 1940 Act or any
interpretations of the Commission staff.
(b) "Interested 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 Commission under the 1940 Act or any interpretations of
the Commission staff.
14. LIABILITY OF THE SUB-ADVISER.
(a) The Sub-Adviser shall exercise reasonable care in rendering its
services described in this Agreement. Except as may otherwise be required by the
1940 Act or the rules thereunder or other applicable law, the Sub-Adviser shall
not be liable for any operations of the Fund except as provided in this
Agreement, including without limitation that the Sub-Adviser shall not be liable
for the acts or omissions of any other sub-adviser or with respect to assets of
the Fund other than the Assets hereunder. The Sub-Adviser shall have
responsibility for the accuracy and completeness (and liability for the lack
thereof) of statements in the Fund's Disclosure Documents that are applicable to
or relate to the Sub-Adviser or to the services provided by the Sub-Adviser
under this Agreement.
(b) The Sub-Adviser shall be liable to the Fund for any loss
(including transaction costs) incurred by the Fund as a result of any
investment made by the Sub-Adviser in contravention of: (i) any investment
policy, guideline or restriction set forth in the Registration Statement or as
approved by the Board from time to time and provided to the Sub-Adviser in
writing pursuant to Section 1(b) herein; or (ii) the 1940 Act, the Code
(including but not limited to the Fund's failure to satisfy the diversification
or source of income requirements of Subchapter M of the Code due to the
Sub-Adviser's failure to comply with Section 1(b) herein) unless acting at the
direction of the Adviser, ERISA, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Commodity Exchange Act, as
amended, or any other applicable law known to the Sub-Advisor or of which any
reasonable U.S. registered investment adviser should be aware (the investments
described in this subsection (b) collectively are referred to as "IMPROPER
INVESTMENTS").
(c) The Sub-Adviser shall indemnify and hold harmless the Trust, each
affiliated person of the Trust within the meaning of Section 2(a)(3) of the
1940 Act, and each person who controls the Trust within the meaning of Section
15 of the 1933 Act (any such person, an "INDEMNIFIED PARTY") against any and
all losses, claims, damages, expenses or liabilities (including the reasonable
cost of investigating and defending any alleged loss, claim, damage, expense or
liability and reasonable counsel fees incurred in connection therewith) to
which any such person may become subject under the 1933 Act, the 1934 Act, the
1940 Act or other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages, expenses or liabilities
(or actions in respect thereof) arise out of or are based upon: (i) a material
breach by the Sub-Adviser of this Agreement or of the representations and
warranties made by the Sub-Adviser herein; (ii) any Improper Investment; (iii)
any untrue statement or alleged untrue statement of a material fact applicable
to the Sub-Adviser contained in any Disclosure
13
Document or the omission or alleged omission from a Disclosure Document of a
material fact applicable to the Sub-Adviser required to be stated therein or
necessary to make the statements therein not misleading; or (iv) the
Sub-Adviser's performance or non-performance of its duties hereunder; PROVIDED,
however, that nothing herein shall be deemed to protect any Indemnified Party
who is a Trustee or officer of the Trust against any liability to the Trust or
to its shareholders to which such Indemnified Party would otherwise be subject
by reason or willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such person's office with
the Trust.
(d) The Adviser shall indemnify and hold harmless the Sub-Adviser,
each affiliated person of the Sub-Adviser within the meaning of Section 2(a)(3)
of the 1940 Act, and each person who controls the Sub-Adviser within the
meaning of Section 15 of the 1933 Act ( any such person, a "SUB-ADVISER
INDEMNIFIED PARTY") against any and all losses, claims, damages, expenses or
liabilities (including the reasonable cost of investigating and defending any
alleged loss, claim, damage, expense or liability and reasonable counsel fees
incurred in connection therewith) to which any such person may become subject
under the 1933 Act, the 1934 Act, the 1940 Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon: (i) a material breach by the Adviser
of this Agreement or the representations and warranties made by the Adviser
herein; or (ii) the Adviser's willful misfeasance, bad faith, or gross
negligence in the performance of its obligations and duties under this
Agreement; PROVIDED however, that the Adviser's obligations hereunder shall be
reduced to the extent that the claims against, or the losses, damages or
liabilities experienced by the Sub-Adviser Indemnified Party, are caused by or
are otherwise directly or indirectly related to the Sub-Adviser Indemnified
Party's own willful misfeasance, bad faith or gross negligence, or to the
reckless disregard of its duties under this Agreement.
15. CONFIDENTIAL RELATIONSHIP.
(a) Any information and advice furnished by any party to this
Agreement to the other party or parties shall be treated as confidential and
shall not be disclosed to third parties without the consent of the other party
hereto except (i) as required by law, rule or regulation or (ii) with respect to
disclosure to a party's officers, directors, employees, professional advisers or
service providers ("REPRESENTATIVES") that need to know such information solely
in connection with the performance of such party's duties and obligations under
this Agreement. The foregoing shall not apply to any information that is public
when provided or thereafter becomes public, unless the party receiving the
information knows or reasonably should have known that the information became
public as a result of a wrongful or illegal act. All information disclosed as
required by law, rule or regulation shall nonetheless continue to be deemed
confidential. The Sub-Adviser retains all rights in and to any of its
proprietary investment models, strategies and approaches used by or on behalf of
the Fund and any models, strategies or approaches based upon or derived from
them.
(b) The Sub-Adviser acknowledges that the Adviser is obligated under
the terms of a separate agreement (or agreements) to provide reporting and
other consulting services to certain
14
benefit plan investors in the Fund and their advisers and sponsors (together,
"PLAN INVESTORS") related to, among other things, the management, operation,
performance and investment guidelines of the Fund and the performance of the
Sub-Adviser. The Sub-Adviser agrees that, in performing such services, the
Adviser is permitted to disclose information regarding the Trust, the Fund, or
the Sub-Adviser as is necessary pursuant to agreements in place with the Plan
Investors (and subject to confidentiality clauses contained in such
agreements), regardless of whether such information is considered confidential
by the Sub-Adviser.
16. ENFORCEABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms or provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
17. LIMITATION OF LIABILITY. The parties to this Agreement
acknowledge and agree that all litigation arising hereunder, whether direct or
indirect, and of any and every nature whatsoever shall be satisfied solely out
of the assets of the affected Fund and that no Trustee, officer or holder of
shares of beneficial interest of the Fund shall be personally liable for any of
the foregoing liabilities. The Trust's Certificate of Trust, as amended from
time to time, is on file in the Office of the Secretary of State of the
Commonwealth of Massachusetts. Such Certificate of Trust and the Trust's
Agreement and Declaration of Trust describe in detail the respective
responsibilities and limitations on liability of the Trustees, officers, and
holders of shares of beneficial interest.
18. CHANGE IN THE ADVISER'S OWNERSHIP. The Sub-Adviser agrees that it
shall notify the Trust of any anticipated or otherwise reasonably foreseeable
change in the ownership of the Sub-Adviser within a reasonable time prior to
such change being effected.
19. JURISDICTION. This Agreement shall be governed by and construed
in accordance with the substantive laws of the Commonwealth of Massachusetts
and the Sub-Adviser consents to the jurisdiction of courts, both state or
federal, in Massachusetts, with respect to any dispute under this Agreement.
20. PARAGRAPH HEADINGS. The headings of paragraphs contained in this
Agreement are provided for convenience only, form no part of this Agreement and
shall not affect its construction.
21. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22. NOTICES. All notices hereunder shall be given in writing (and
shall be deemed to have been duly given) by delivery in person, by facsimile or
by electronic means (with corresponding personal, facsimile or electronic
receipt of such delivery), or by registered or certified mail (with return
receipt requested), or by reputable overnight delivery service (with evidence
of receipt to the parties), at the address of each as set forth below (or at
such other address, number or electronic address for a party as shall be
specified by like notice):
15
If to the Sub-Adviser, to:
PanAgora Asset Management, Inc.
Address: 000 Xxxxxxxx Xxxxxx, 0(xx) xxxxx
Xxxxxx, XX 00000
Attention: Compliance Officer
Facsimile: (000) 000-0000
Email: XxxxxxxxxxXxxxxxx@xxxxxxxx.xxx
Telephone: (000) 000-0000
If to the Adviser, to:
Xxxxxx Associates Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Vice President, Trust Advisory Group
Facsimile: 303.832.8230
Email: XXXX@XXXXXX.XXX
Telephone: 000.000.0000
16
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be signed
on their behalf by their duly authorized officers as of the date first above
written.
XXXXXX ASSOCIATES INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President and Director of Research
PANAGORA ASSET MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Chief Compliance Officer
17
SCHEDULE A
TO THE
SUB-ADVISORY AGREEMENT
DATED AUGUST 31, 2015 BETWEEN
XXXXXX ASSOCIATES INC.
AND
PANAGORA ASSET MANAGEMENT, INC.
Each Fund will pay to the Sub-Adviser as compensation for the Sub-Adviser's
services rendered, a fee, computed daily at an annual rate based on the average
daily net assets of the respective portion of the Fund (or "ASSETS" as defined
in this Agreement) as may be allocated by the Adviser to the Sub-Adviser from
time to time under the following fee schedule:
FUND RATE
KP Large Cap Equity Fund - Dynamic Large Cap [REDACTED]
Core Strategy
18
